1819862 (Refugee)

[2020] AATA 2457

1819862 (Refugee) [2020] AATA 2457 (8 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819862

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:James Lambie

DATE:8 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 08 May 2020 at 9:51am

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Shia – race – Hazara – particular social group – returnee from a Western country – communal violence – fear of killing – attacks by Muslim militants – attack on family business – reasonable relocation – decision under review affirmed

LEGISLATION

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

CASES

Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 1 September 2012 and the delegate refused to grant the visa on 19 August 2013.

3. The delegate’s decision was confirmed by the Refugee Review Tribunal (RRT) [in] October 2014. The Federal Circuit Court of Australia, by consent, quashed that decision and directed this Tribunal, as presently constituted, to determine the application for review of the delegate’s decision according to law. The court noted, by consent, that the RRT had failed to consider and make a finding on a claim raised by the applicant that he would suffer harm if he were to travel to Quetta or Karachi for family or business reasons and that, in failing to do so, had committed a jurisdictional error.

4. The applicant appeared before the Tribunal in Sydney on 19 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [name], who is the applicant’s brother.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who did not, however, attend the 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. [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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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

21. 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.

22. The applicant claims to have been a resident of [Town 1], [distance] from Karachi, of Hazara ethnicity and Shia religion. He claims to have lived in Pakistan his whole life, except for a one-month [visit] to [a named country] in 2004.

23. He states that he attempted to come to Australia using a people smuggler but was detained by [third country] authorities and held in detention for nine months. He says he escaped and travel to Australia by boat, arriving on Christmas Island [in] May 2012. He was processed as an offshore entry person on 25 June 2012. He claims that he left Pakistan because he feared being killed for being a Hazara Shia. He says that if he returns to Pakistan he will suffer discrimination or be killed due to his race, religion, or status as a returnee from a Western country.

24. The delegate accepted that the applicant was a Pakistani national and does not have a right to reside in another country. The delegate also accepted that the applicant was practitioner of the Shia religion but has not been specifically targeted for that reason. The delegate was not satisfied that the applicant is of Hazara ethnicity and that, therefore the harm he feared for the convention reason of race did not apply. While the harm the applicant claimed fear on return to Pakistan was significant, the delegate did not consider that there was a real risk that the applicant would suffer harm of that nature.

25. The RRT considered the delegate’s assessment as to the applicant’s ethnicity and was satisfied, on the basis of all of the information provided, that the applicant is a Hazara Shia was born in Quetta. The Tribunal found that the applicant had not been specifically targeted as a Shia or Hazara. The applicant’s claim that one of his friends and two other acquaintances had been killed for being Shia whilst he was in detention was not accepted. The Tribunal did not accept that the applicant faced a real risk of harm where he was residing in [Town 1] and that his evidence in that regard had been untruthful. The Tribunal was not satisfied that the existence of random attacks against Shias in Quetta and Karachi established that there was a real chance that the applicant be harmed as a Hazara Shia in [Town 1] and that the risk that the applicant would be caught up in one of the incidents of sectarian violence which continue to occur throughout Pakistan was remote. The Tribunal rejected the claim that the applicant feared the risk of harm is a failed asylum seeker from the West.

26. In support of his claims to this Tribunal, the applicant made a statutory declaration dated 16 July 2019 and one post-hearing dated 20 September 2019.  I have also had regard to his statutory declaration dated 1 September 2012, for the purposes of his interview by the delegate, and his statutory declaration of 19 May 2014, for the purposes of his application to the RRT. I have also had regard to the extensive written submissions made by the applicant’s representatives at the various stages of his application.  Amongst this material are a number of letters of support from community members in [his town in] New South Wales, prepared as part of an application for ministerial intervention in 2015.

27. The applicant’s evidence to this Tribunal was that he was born in Quetta and attended primary school there. He went to high school in Karachi. His family had a [Product 1] business with the shop located in [Town 1], [distance] from Quetta but only about [distance] from Karachi. He lived there from 1991 to 2011. He was married in Quetta [in] 2004 and has [children born in specified years].  He claimed that the family would live in [Town 1] during the long school holidays (November to January) and returned to Quetta for the rest of the year. [Town 1] is a small city that has some industrial and commercial businesses due to its proximity to Karachi and relatively cheap rental.

28. When he left school, the applicant became a [Product 1 worker] and joined the family business. Thereafter, he would travel between [Town 1] and Quetta on a bimonthly basis to see his wife and children. He said that his regular road travel was extremely dangerous as a Hazara Shia and was one of the motivating factors for his decision to flee Pakistan. He said that he could sense and measure the rising anti-Shia Hazara sentiment and the deteriorating circumstances for Hazara Shia within Pakistan generally. He situated his wife and [child] in [a named town in] Quetta when he fled Pakistan. His brother, [named], was [an occupation] who also fled Pakistan for Australia, arriving after the applicant. [This brother] was granted a permanent refugee visa and is now an Australian permanent resident.

29. The applicant claims that two significant events occurred after his arrival in Australia. In 2012, he says that his best friend [Mr A] was shot and killed in [Town 1] by two men on motorcycles. The applicant says that Laskar-e-Jhangvi (LeJ) was thought to be responsible and that [Mr A] was killed for being Shia Hazara. In about 2013, he says, his family [Product 1] store in [Town 1] was deliberately burnt down. The shop was open at the time and staff (but none of his family) were present. He says that, to the best of his understanding, the perpetrators were LeJ. The market manager, he says, advised the family to come and collect their tools but not to reopen the shop due to the targeting of Hazara business by Sunni extremists. He says the family has abandoned the [Town 1] business as a result.

30. The claim concerning [Mr A] was the subject of criticism before the RRT. The Tribunal did not consider it credible that the applicant would first mention this matter, and another vaguely articulated claim to have received threats or brochures containing threats, for the first time at the hearing in October 2014, given that he had been assisted by a registered migration agent since lodging the application for protection. The documents he submitted in support of this claim, purporting to be a photograph of [Mr A’s] corpse and a police report, were found not to be genuine. The police report was in Urdu and not accompanied by any translation. This was not a matter that the applicant sought to correct at the hearing before me, despite the passage of time since he first made the claim and the criticism to which the claim was subjected by the RRT and in the advice to the Minister on the intervention application.  Given the manifest opportunity for the applicant and his representatives to arrange for translation and verification of the impugned evidence, I have inferred that this material does not assist the applicant’s case.

31. The applicant’s brother sought to corroborate the applicant’s evidence by way of his statutory declaration of 18 July 2019 and in his oral testimony to the Tribunal. Paragraph 9 of his statutory declaration (with the necessary change being made to reflect the identity of the deponent) is a word for word repetition of paragraph 13 of the applicant’s affidavit of 16 July 2019 and I dismiss its corroborative value. In his oral testimony, he claims to have learnt of [Mr A’s] death via Facebook but did not seek, despite the ease of doing so, to put any Facebook material into evidence. In these circumstances, I cannot be satisfied that the claim in relation to [Mr A] has any evidentiary basis. I am inclined to the view that it is a fabrication.

32. The claim in relation to the arson of his shop was also the subject of considerable revision over the course of the hearing. In his statutory declaration, and that of his brother, the date of this event was placed at “in or about 2013”, both witnesses seeking to fix that date by reference to a period of one or two years having elapsed since their arrival in Australia. The accounts in their statutory declarations are identical and I do not accept that the declarations have any corroborative value. What is extraordinary about this evidence is that documents purporting to corroborate the arson story dated February 2015 had already been submitted as part of the ministerial intervention application.

33. In his statutory declaration of 20 September 2019, the applicant sought to correct his evidence by exhibiting the purportedly corroborative documents. He put the discrepancy as to the date of the arson down to the passage of time and a drinking problem. The documents do not seem to me to have any evidentiary value, being merely purported translations of unexhibited originals. It is impossible on the basis of the submitted material to assess the veracity of the source documents.

1. The applicant provided a further gloss to the arson claims at the hearing, claiming that, because the shop was uninsured, he was at further risk of harm because the landlord is seeking compensation from him for the damage to the property. This is nowhere attested to in any of his statutory declarations, or that of his brother. In his oral testimony, the brother exhibited no knowledge of those demands despite the two being in daily contact. When asked why his brother could not corroborate this claim, the applicant did not offer a response.  In view of the unsatisfactory state of the evidence, I do not accept the applicant’s claims in this regard.

2. In his oral testimony, the applicant also claimed that he was at risk of being sentenced to a term of two years’ imprisonment if he returned to Pakistan. He claimed that he would be subjected to this for being absent from the country. Nowhere in his representative’s submissions or in any material available to me does this claim have any support. It is not referred to at all in any of his statutory declarations or any other stage of the application process.

3. 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. For these reasons, I do not accept the applicant’s claims to fear imprisonment on his return.

4. On the more general of the applicant’s claims, I accept that he is a Hazara Shia. I also accept that Hazara Shias in various places and at various times in Pakistan have been subject to persecution and may justifiably claim to have a well-founded fear of persecution for a Convention reason. Given that the applicant, however, had not claimed until he was before the RRT to have been a specific target of harmful treatment, I do not accept that the applicant was specifically targeted in [Town 1], Quetta or Karachi, or that he had any firsthand knowledge of such treatment being inflicted on Hazara Shia. With his post-hearing submission, the applicant included two documents purporting to be translations of reports to the [Town 1] police of (presumably) Sunni harassment of Shia worshippers in October 2014 and an assault in February 2015. Both events occurred some years after the applicant left the country. In common with the documents referred to in paragraph 33, they are purported translations only and the original documents have not been disclosed. Their evidentiary value is therefore very limited. Given the quality of the applicant’s evidence generally, I would not in any event be inclined to accept any claim of connection or acquaintance with any of the people named in these purported reports without independent corroboration.

5. In his statutory declaration of 16 July 2019, the applicant commits some 12 pages to a list of incidents under the title “Safety and Security Problems for Hazara in Quetta Pakistan”. These incidents are said to have occurred between 20 and 2016. They appear to have been sourced from a petition by the Hazara Quami Jirga association of Quetta to the President of Pakistan forming part of a report entitled The Shia Hazara of Pakistan: Community under Siege produced by an organisation by the name of Minority Support Pakistan (April 2012), from other material in that report, and from a Human Rights Watch report “We Are the Walking Dead”: Killings of Shia Hazaras in Balochistan, Pakistan (June 2014).  A quantity of such material was forwarded to the Tribunal by the applicant’s representatives, including a very large quantity of Afghanistan-specific material, which I am assuming was included by mistake. I have had regard to all of the relevant material.

6. I have also had regard to country information, including the DFAT Country Information Report on Pakistan (20 February 2019). That report estimates that the size of the Hazara population in Pakistan ranges from around 600,000 to 1 million. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. The report notes that 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 option for internal relocation are, in order, Lahore, Karachi and Islamabad. DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves 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 checkpoint denial of or delay in access to identity documentation, employment services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and or formal official discrimination.

7. The applicant’s evidence, which I accept, is that in about 2012 or 2013, he arranged for his family to move from [Town 1] to Quetta. I asked him why he had sent his family to Quetta given that its reputation is that it can be dangerous for Hazaras. His evidence was that his family’s relatives are all in Quetta and that his wife and [children] do not need to leave home. He said that he was more comfortable having his family live among other Hazaras than amongst the variety of potentially hostile ethnic groups in [Town 1], such as the Balochis and the Pashtuns. While I accept that his family’s security situation was part of the motivation for relocating them to Quetta, I consider that the closeness of familial support in the absence of the family breadwinner was at least as important. I consider that if the security situation was of any serious concern to the applicant, he would have relocated them prior to his departure and not some considerable period after.

8. On the evidence, I am not satisfied that the applicant was at any time specifically targeted in [Town 1], whether for reasons of his religion, ethnicity or any other attribute. I am also not satisfied that the applicant or any member of his family has been specifically targeted for reasons of their religion or ethnicity in Quetta or in Karachi, where the applicant and his relatives have lived at various times for several years, despite those cities’ reputation for violence. I am not satisfied that the existence of random attacks against Shias in Balochistan and, to a diminishing extent, in Karachi would expose the applicant to any more than a remote chance of harm in [Town 1]. I am not satisfied that he or his family would have to restrict their movements upon their return to [Town 1] and do not accept his claims that he and his family faced discrimination and live in fear.

   Risk of harm:  travel

9. The applicant has also claimed that he would suffer harm if he were to travel from [Town 1] to Quetta or Karachi for family or business reasons. Despite the former Tribunal’s failure to consider this aspect of the applicant’s claims being the basis of the remittal of this application to this Tribunal, the applicant does not address this issue in his statutory declarations or written submissions, other than to a reference to an attack on a van in about 2000 (paragraph 22 of his statutory declaration of 16 July 2019). However, I have had regard to in the country information provided by his representatives, in which is to be found reports of roadside attacks and attacks on public transport. I have also had regard to the DFAT country information.

10. The DFAT Report states that the security situation in Pakistan is complex, volatile, will and affected by domestic politics, politically motivated violence, ethnic conflict, sectarian violence, and international dispute with India and Afghanistan. It reports that overall, there was a 29% decline in the number of reported terrorist attacks in 2018 (compared to a 16% decline in 2017) marking a nine-year downward trend, while noting that the country continues to face security threats from insurgent, separatist and sectarian militant groups. It further notes that security and law enforcement personnel with a target of the largest number of attacks during 2018 (52% of all attacks). 47 attacks targeted civilians: seven targeted Shia, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions. Up to 6 incidents of faith based individual or communal violence (killing four) were also reported in 2018. Sectarian violence reduced by 40% in 2018 compared to 2017.

11. It appears clear from the independent reporting that the level of terrorist and sectarian violence has declined sharply over the past nine years. Given that the applicant had been able to travel regularly among Quetta, Karachi and [Town 1] for more than 25 years without encountering or witnessing firsthand any incidents of serious harm, it is my assessment that to do so, were he to return to Pakistan, would entail considerably less risk than did at the time of his departure.

12. On the basis of the evidence presented by the applicant and the submissions presented on his behalf, I am not satisfied that he faces any more than a remote risk of serious harm, or any harm, for reason of his ethnicity or religion. On the basis of the evidence he has presented I do not consider that he stands any greater risk of harm than any other member of his community in a similar socio-economic position to himself.

13. 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.”  I do not assess his risk of harm or discrimination for this reason to be appreciable.

    Relocation

14. Even if I am mistaken in these conclusions, I have given consideration to whether it would be feasible, in the sense of practicable, for the applicant to relocate within Pakistan.  In doing so, I have had regard to the principles referred to in paragraph 15 above.

15. The independent evidence 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 Balochistan.

16. 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.[1]

    [1][1] DFAT Thematic Report, Shias in Pakistan, 15 January 2016, p15

17. The Tribunal accepts that, as elsewhere in Pakistan, there continue to be attacks specifically against Shia mosques, shrines and gatherings of Shia in Karachi, Rawalpindi and Islamabad, and against Hazara, particularly in Balochistan.  The evidence is that there remains some risk of harm throughout Pakistan, including in cities such as Karachi, 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 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.[2]

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

18. The Tribunal accepts that the applicant is identifiable as Shia and Hazara.  However, having regard to the country information cited above and, in particular the low levels of sectarian violence in Islamabad and Rawalpindi, 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.

19. The situation in Karachi, a very short journey from [Town 1] and a city with which the applicant is (on his evidence) very familiar, has changed very significantly.  The city has a substantial Hazara population.  The crime rate (including targeted attacks) is now much lower than in 2011, when it was the sixth most dangerous city in the world.  Recent reports now list it between 70^th and 104^th in the world in terms of crime rate, better than many first world cities (on one assessment, safer than Cairns in Queensland).[3]  While I harbour some doubts as to the true comparability of the statistical information, the dramatic increase in safety is attested to in the independent reporting.  In light of this information, I consider the chance of the applicant being harmed (seriously or otherwise) in an act of sectarian or generalised violence is remote.

    [3] See, for example,

20. The situation in Quetta is, on the evidence, more prone to risk.  However, I accept the applicant’s evidence that his family is currently tolerably safe in that city and that he has lived there for a significant part of his life without coming to harm, or any member of his family coming to harm.  Given that the general security situation has improved over recent year, I have no reason to believe that he should face any significant risk of harm should he return to Quetta.

21. 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, or less than serious harm, for reasons of his Shia religion or the fact that he is Hazara in Quetta, Karachi, Islamabad or Rawalpindi.  

22. There is no evidence that it would, for any other reason, be impracticable to relocate should be feel the need to.  There is no evidence of any linguistic, health or employment impediment to relocation.

    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?

23. 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).  For the reasons given in paragraphs 37 to 46, I do not accept that the applicant faces a real risk of such harm.

24. 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 47 to 55, I have found that it is reasonable for the applicant to relocate to areas such as Karachi, Quetta, 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.

25. 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.

26. 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).

27. 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).

28. 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

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

    James Lambie
    Senior Member