1824982 (Refugee)

[2020] AATA 1501

1824982 (Refugee) [2020] AATA 1501 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824982

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Sean Baker

DATE:1 April 2020

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 01 April 2020 at 8:08pm

CATCHWORDS

REFUGEE – Protection Visa – Pakistan ­­– Federal Circuit Court  remittal – race – Pashtun ethnicity– religion– Shia Muslim –actual political opinion – supports the PPPP – imputed anti-Taliban political opinion – membership of a particular social group – Shia members of the Bangash tribe – mental health issues – failed asylum seeker from a western country –relocation not reasonable– effective state protection not available – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

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. [The applicant] is a Pashtun Shia of the Bangash tribe. He lived in [Village 1], Kurram agency, of the former Federal Administrative Tribal Area (FATA) of Pakistan.

2. 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).

3. The applicant provided a copy of the delegate’s decision to the tribunal.

4. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 13 December 2012 and the delegate refused to grant the visa on 31 March 2014.

5. The Tribunal, differently constituted, affirmed the decision. The matter was remitted by consent by the Federal Circuit Court which noted that it was conceded that the Tribunal had made a jurisdictional error by not considering the applicant’s claim based on actual political opinion. The statement containing the applicant’s claim based on the applicant’s actual political opinion identified as one of the applicant’s claims his fearing ‘persecution for his political opinion as he supports the PPPP and he would not abide by the Taliban’s theology or Sharia law’.

6. The applicant appeared before the Tribunal on 18 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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’).

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

12. The issue in this case is whether the applicant has a well-founded fear of persecution for a Convention reason or, if not, whether there is a real risk he will suffer significant harm if returned from Australia to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity and nationality

13. To the Department the applicant provided his Pakistani passport and National Identity Card (NIC). The passport was examined by a document examiner who found that some of the pages of the passport had been altered. The applicant explained that he believed this had been done by the people smuggler. It is noted that the biodata page of his passport was unaltered, and his NIC does not appear to have been altered. It appears therefore that despite the alterations, the passport can be used to assist in establishing the identity and nationality of the applicant, further confirmed by the NIC. At the hearing before me he provided his Victorian driver’s licence.

14. On the information before me I accept that the applicant is a national of Pakistan, his receiving country. I accept that the applicant is who he claims to be.

15. I have considered the information before me and I find that the applicant does not have a right to enter and reside in a safe third country.

    Certificate

16. On the Department file there is a purported certificate. This certificate is not valid because it does not adequately disclose the public interest reason for the imposition of the certificate. As I explained at the hearing however, I did not think the material needed to be released to the applicant, being the document examination report, which found that several pages of the applicant’s passport had been altered. As the gist and relevance of this information had been put the applicant by the Department, as the applicant had conceded this, and as the delegate, and the Tribunal, have accepted the applicant’s passport in material respects is an accurate reflection of his nationality and identity, I did not consider it necessary to put this information to the applicant.

    Claims

17. The applicant claims to fear being killed or otherwise seriously harmed by the Tehrik-e-Taliban Pakistan (TTP), Sipah-e-Sahaba Pakistan (SSP) and Lashkar-e-Jhangvi (LeJ), as well as Sunnis in general, on return to Pakistan. He claims to fear these groups on the basis of his Shia religion; his imputed political opinion as against the Taliban and associated groups (due to his Shia religion, membership of the Bangash tribe; support of the Pakistani Peoples Party Parliamentarians (PPPP)); and his membership of particular social groups, namely ‘Shia from Parachinar’ and ‘failed Shia asylum seekers from a western country.’

18. In a submission received 12 November 2019, the applicant’s representative particularised the feared harm on the basis of the applicant’s

    ·Race (The applicant is Bangash, making him vulnerable to persecution by extremist Sunni terrorist groups that operate in Pakistan);

    ·Religion (The applicant is Shia, making him vulnerable to persecution by extremist Sunni terrorist groups that operate in Pakistan);

    ·Political opinion – actual and imputed (he fears persecution because of his political opinion as he supports the PPPP and he would not abide by the Taliban’s theology or Sharia law) – however, the submission goes on to state that the applicant abandons this claim because the situation for PPP/PPPP supporters has improved since the applicant made that claim

19. However, the submission explains the applicant also fears harm on this basis because Shias/Bangash are viewed by extremist Sunni terrorist groups as opposing the type of religious government/law that they propose, making the applicant also vulnerable to persecution on account of an imputed political opinion; Particular Social Group (“Shia members of the Bangash tribe”, “Shia Muslims”, and potentially, “failed Bangash Shia asylum seekers from a Western country” and/or a combination of the abovementioned, or suchlike);

20. The submission gives a background to the conflict in Kurram agency, explaining that ‘[u]nlike Pakistan’s other six tribal agencies, the conflict in Kurram is complicated by sectarian divisions that have flared into violent encounters between the region’s Sunni and Shi’a Muslim communities.’[1] The article notes the proximity of Kurram agency to Kabul, that there have been incidents of communal violence between Shia and Sunni in the region and that the conflict in Afghanistan has bled over into the agency, distorting the situation and the tribal and sectarian relationships, leading to rounds of violence.[2]

    [1] Mariam Abou Zahab, Jamestown, Sectarianism in Pakistan’s Kurram Tribal Agency; Terrorism

    [2] Mariam Abou Zahab, Jamestown, Sectarianism in Pakistan’s Kurram Tribal Agency; Terrorism

21. The submission then provides detailed country information on attacks in Kurram agency for the past ten years. The submission includes reports of attacks and attempted attacks in Parachinar in 2019. The submission goes on to discuss travel security within the Agency, and the situation for Shias and for Pashtuns in other parts of Pakistan which may be considered would be reasonable for relocation.

22. Accompanying the submission was a statutory declaration from the applicant. He states that he no longer fears returning to Pakistan because of his support for the PPP/PPPP because the situation for supporters has improved since he made that claim. He states that there is country information not reported in English language services of an attack by the Taliban on a school near his family home in [Village 1] three weeks prior, that Islamic state are present in a village very close to his village, and had driven back the army, a link to an extremist threatening Shia not to do Moharram in the Hangu bazaar, and the applicant says because of this the Shia have not done Moharram there, a link to an article which talks about the Islamic state threat to Kurram agency, he notes the recent attacks on Parachinar and that he would travel there regularly to shop, for employment and religion. He discusses his psychological health, saying he has been seeing a counsellor since September 2018 for stress and depression. He claims he would be unable to relocate because he is distinguishable as a Shia Pashtun and can be identified as such because of his language and because he is from Parachinar. He has no relatives to support him outside Kurram agency. He does not have good qualifications or employment prospects. Attached are the reports with translations that he referred to, including a report of an attempted attack on a school in [Village 1] dated [2019], [social media] posts in relation to an attack on the military who were seeking militants in the village of Ahl E Sunnat village, undated, as well as a post on the demands of this village that Moharram not pass through the Hangu bazaar, report on the entry of Daesh suicide bombers entering Kurram agency from Afghanistan, dated 8 April 2017, and a letter dated 30 July 2019 from [a] client service manager at the [ORGANISATION 1] who confirms the applicant has attended counselling since September 2018, and presented with stress related to his past in Pakistan, depression, frequent suicidal ideation and symptoms including impact on sleep, eating, mood and temper. It notes the applicant expressed great concern about his upcoming hearing and continued to suffer depressive symptoms.

23. After the hearing the applicant’s representative provided a Post-Hearing submission. This argued that my suggestion at hearing that there has been a decline in security incidents in the past two years in Kurram agency was disputed by the applicant, who submitted that the long history of sectarian violence in Kurram Agency, and nature of the violence (including, but not limited to, periods of improvement, followed by deterioration), are relevant to whether the applicant’s fear of persecution is well-founded now and in the reasonably foreseeable future.

24. The submission went on to say that the applicant had provided, as above, evidence of a Taliban attack [in] 2019, [in] [Village 1], and about [number] metres away from the applicant’s house. In this attack, “unidentified persons opened fire at [a] vehicle”. We submit that “29 extremists”, about [number] metres away from the applicant’s house, who had “opened fire”, supports the applicant’s claim that he has a well-founded fear of persecution.

25. The applicant has also provided evidence of suspected Daesh presence in Boshera, which is approximately [number] kilometres from [Village 1]. The applicant has further provided evidence of attacks in Parachinar, which is also approximately [number] kilometres from [Village 1]. It was submitted that the presence of Sunni extremists in the applicant’s ‘home area’ was a relevant consideration for whether the applicant has a well-founded fear of persecution now and in the reasonably foreseeable future, especially given the country information that the applicant has provided the Tribunal.

26. The submission goes on to quote from the most recent DFAT report, and to discuss the mental health of the applicant and the mental health of the general population in Parachinar.

27. Attached to the submission were:

    ·Translation (from Urdu) of text appearing underneath video, available at: [web address deleted] and some screenshots taken from that video. These relate to the recent attack in [in] [Village 1].

    ·Copy of article (in Urdu) available at: [deleted] and its English translation. This article relates to the incident in [a town] that the applicant discussed at the hearing.

    ·Screenshots from: [dateled] These relate to the “stopped passenger [vehicles]”, referred to in the article above.

    ·Photographs of the applicant’s prescription/medicine.

    ·Printout from [a doctor].

28. At hearing the applicant provided evidence consistent with the above claims. He explained that he had previously attempted to travel to Australia in April/May 2012 but had been deported from [Country 1] to Pakistan. He said he had been detained by the FIA but then released and he had not been charged. He said he had had no problems leaving the second time.

29. The applicant said that his parents were still in [Village 1], as were [some of his siblings], and he has [two brothers overseas]. He has no family in Australia, but he does have a partner.

30. Prior to coming to Australia, he completed a [qualification] [and] worked in [various places]. In Australia he has worked at [a specified workplace] and as [a specified occupation].

31. He said that the reason he could not return to Pakistan was because it is unsafe for him as a Shia – the targeted killing of Shia is still there and as a Shia and Pashtun he did not think he would be safe. He briefly detailed his PPP / PPPP involvement but confirmed that recently there had been no issues or harm recently to supporters or members. He reiterated that he feared harm as a Shia Pashtun of the Bangash tribe from the Taliban, ISIS and other militant groups targeting Shia.

32. The applicant explained that his political opinion against the Taliban meant that he did not support their views and opinions, nor their version of Sharia law. He said that the Taliban try to impose Sharia law in Kurram agency, and if someone is caught, they will punish them. He said that if the Taliban caught him, they would find out he was from [Village 1] and that he was Shia and kill or otherwise seriously harm him.

33. He explained that there had been three incidents in the past when he had been harmed by the Taliban. [In] 2007 the Taliban had attached a [specified venue] in Parachinar, and he had been harmed in this incident. He conceded that whilst he had witnessed the attack outside the [specified venue], he had not been harmed per se. He said at the PPP rally [in] February 2008

34. He said that the third incident happened [in] 2012, when he was shopping with his [relatives] and there was an explosion nearby. They had left immediately and found out later that many people had died in the bombing and that the TTP had taken responsibility for the attack. He said that the target of all these attacks had been the Shia community in Kurram. He had not been physically harmed but had been psychologically harmed. 

35. I asked him at the hearing if his family had received a Taliban threat letter. He said they had but he could not remember precisely when, only that it had been when he was present in Australia. He said at that time he was a supporter or [the] PPPP and his sister had worked on a polling station and the Taliban had threatened them because of these things. I asked if anything had happened to his sister and he said it had not. He said that his family had not been harmed but they were aware of the attacks and bombings that happened.

36. I discussed with the applicant whether he had any concerns from departing Pakistan previously and if he were to be returned a second time. He said that it was possible that the authorities might say that he had sought asylum twice and ask why he was giving the country a bad name. He noted that as a Pashtun he may face questioning at the airport.

    Consideration

37. Above I have found the applicant to be a National of Pakistan, and I have found that he has no presently existing right to enter and reside in any other country. The applicant has been able to speak in detail about [Village 1], Parachinar and Kurram agency, the events and the relationship between locations. He has done so over the course of interviews and hearings. Similarly, he has been able to speak of his Shia religion and the observances of that sect. I find on the information before me that the applicant lived in [Village 1], near Parachinar, Kurram agency, in the former FATA, now Khyber Pakhtunkhwa area, that he is of the Bangash tribe and the Shia religion and Pashtun ethnicity. I accept that his parents and [siblings] remain in [Village 1].

38. I am willing to accept that the applicant is a supporter of the PPP/PPPP. I do not accept that he had any greater level of involvement in these organisations.

39. I accept that if the applicant returned to Pakistan now he would be identified by the authorities as a failed asylum seeker, on the basis that he has been outside Pakistan for many years and because he was detained, albeit briefly, after being deported from [Country 1] to Pakistan on his previous attempt to travel to Australia.

1. I do not accept that the applicant or his family have been threatened by the Taliban. His evidence on the threat letter was vague and unconvincing when I consider that a threat letter from the Taliban would be a significant event for the applicant and his family and I would expect him to be able to provide further detail of the letter than he did. I note also that he did not raise this in his evidence but had to be prompted by me. I do not accept that the applicant’s family have received a Taliban threat letter in relation to the applicant and his sister at any time.

2. I accept that the applicant has witnessed the attacks he claims, although as he conceded, he was not physically harmed at these attacks.

3. Based on his evidence and the information in the letter from the [ORGANISATION 1], I accept that the applicant suffers depression, frequent suicidal ideation and symptoms including impact on sleep, eating, mood and temper as well as stress.

4. In assessing the applicant’s claims, I have considered whether he can return to his home area of [Village 1], Parachinar. In making this assessment I have relied on the most recent and authoritative country information available. I have had regard to the most recent DFAT report. The DFAT report contains information that is directly relevant to the applicant.

5. The DFAT report states that:

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

   The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a— especially in Parachinar, rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan. Between 2008 and 2014, Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith (see Shi’a). Militants frequently stopped and killed Turis travelling on roads. A significant spike in profiling and targeted killings occurred between 2009 and 2014 along the Tall-Parachinar road, which links Kurram Agency and Peshawar.[3]

   [3] DFAT Country Information Report – Pakistan, 20 February 2019 3.13 – 3.14

6. Successive security operations including Zarb-e-Azb, Radd-ul-Fasaad, and the National Action Plan have been credited with a reduction in sectarian attacks across Pakistan but specifically in the former FATA and Khyber Pakhtunkhwa. I note that according to the South Asian Terrorism Portal (SATP), 2018 saw a marked decrease in attacks and fatalities in FATA.[4]

   [4] South Asian Terrorism Portal, Datasheet – FATA, current as at 26 March 2020, >

   However, contemporary information also indicates that the areas immediately surrounding Parachinar may be falling once more into a cycle of violence. According to the PIPS Pakistan Security Report 2019:

   In 2019, North Waziristan reemerged as a major flashpoint of insecurity and militant violence where 53 terrorist attacks took place, or over 42 percent of the total reported attacks from KP, which killed 57 people and injured 93 others. Two other KP districts where more than 10 attacks happened in the year included DI Khan (14 attacks) and Bajaur (11 attacks) districts. While seven (7) terrorist attacks happened in Bannu, the provincial capital Peshawar and Tank faced six (6) attacks each. Meanwhile five (5) attacks took place in each of Mohmand and South Waziristan districts. In all, terrorist attacks were recorded in 17 districts of KP.[5]

   [5] Pak Institute for Peace Studies, Pakistan Security Report 2019, Vol 12 Spring 2020 (Jan – Jun) No. 1, >

   This report also notes that sectarian attacks in the 2019 year increased, although the total number of attacks, at 14 remained low, they were responsible for the death and injury of over 100 people.[6]

   [6] Pak Institute for Peace Studies, Pakistan Security Report 2019, Vol 12 Spring 2020 (Jan – Jun) No. 1, >

   The FATA security report for 2019 notes that although Kurram district was peaceful for most of 2019, there was a terror incident in the last quarter, and ‘… the district is highly vulnerable to terrorist attacks due to its proximity to the Nangarhar, one of the volatile province of Afghanistan.’[7] The report goes on to explain that the vulnerability to terror related attacks relates to the proximity to Nagarhar, but also to ‘the sectarian nature of conflict in the district and thirdly, its proximity to the North Waziristan district and Tirah valley of Khyber district, where militants are still able to conduct terrorist activities, makes the district vulnerable to terrorist threat.’[8]

   [7] ‘FATA Annual Security Report 2019’, FATA Research Centre, 20 January 2020, 3. FATA Annual Security Report 2019’, FATA Research Centre, 20 January 2020, 9. >

   The USDOS Country Report on Terrorism notes in relation to Pakistan that:

   Although the Pakistani government voiced support for political reconciliation between the Afghan government and the Afghan Taliban, it did not restrict the Afghan Taliban and the Haqqani Network (HQN) from operating in Pakistan-based safe havens and threatening U.S. and Afghan forces in Afghanistan. The government failed to significantly limit Lashkar e-Tayyiba (LeT) and Jaish-e-Mohammad (JeM) from raising money, recruiting, and training in Pakistan – and allowed candidates overtly affiliated with LeT front organizations to contest the July general elections.[9]

   [9] USDOS, Country Reports on Terrorism 2018 - Pakistan, October 2019, >

   There are indications that Lashkar-e-Jhangvi (LeJ) has formed an alliance with IS, with both expressing their strong sectarian, anti-Shia stance; ‘LeJ is at heart a Sunni-Deobandi supremacist group, intending to transform Pakistan into a Sunni caliphate.’[10] USDOS Country Report on Terrorism note that LeJ may have coordinated attacks in Pakistan with other terrorist groups.[11] Sunni militant groups continue to operate in Kurram agency.[12]

   [10] Zahid, F., ‘Lashkar-e-Jhangvi al-Alami: A Pakistani Partner for Islamic State’, Terrorism Monitor, Jasestown Foundation, 27 January 2017, USDOS, Country Reports on Terrorism 2018 - Pakistan, October 2019, ‘Terror incidents continued to decline in 2018’, Express Tribune (Pakistan), 1 January 2019

7. There are reports, which support the applicant’s claims, that other insurgent groups are moving into the area of his home region. It is reported that the Haqqani network moved from Waziristan to Kurram.[13] I have also had regard, and accept, the country information provided by the applicant above, in particular the Zahab article. The views in that article are also expressed in the EASO report which notes that ‘Kurram agency has a history of sectarian violence between the Sunni and the Shia population.’[14] The DFAT report also acknowledges that violence in the applicant’s home area may be cyclical, stating that in their assessment, attacks and violence against Turis (and the applicant by extension), can and may occur, and there is still a moderate risk of sectarian violence from militant groups, because of their Shi’a faith.[15]

   [13] EASO Country Of Origin Information Report: Pakistan: Security Situation, October 2019, 30.

   [14] EASO Country Of Origin Information Report: Pakistan: Security Situation, October 2019, 68.

   [15] DFAT Country Information Report – Pakistan, 20 February 2019 3.26

8. I have carefully considered the country information and have considered what this may indicate for the future. The country information leads me to make the following findings.  Whilst the situation in Kurram agency is much improved from previous years, the evidence indicates that violence is cyclical in this area, that insurgents are moving into the area, and that actors such as LeJ have the intent, and capacity, to conduct terror attacks against Shia targets, possibly with the assistance of other terror groups. LeJ’s mission is to remove Shia and other minorities to bring in a Sunni caliphate. This group appears to have links with IS as well as with local terror groups. Kurram agency is described in multiple sources as fragile and with the potential to see further cyclical violence.

9. The war in Afghanistan, which has not lessened but has changed tempo and dynamic as the Taliban prepare to have a greater area of influence, will lead to instability in the local area, including in Pakistan, particularly areas proximate such as Kurram.

10. I find that the potential for sectarian terror attacks against Shia in Kurram is greater than remote, and that the applicant, as a Bangash Shia is particularly vulnerable because the Bangash and Turi tribes have historically opposed Sunni militias and terror groups that have attempted to enter Kurram. The violence in Kurram therefore can be seen as cyclical in nature with strategic, tribal and sectarian dimensions. Within this, the Turi/Bangash tribes, with a predominance of Shia and being concentrated in Kurram agency, are a realistic target for attack by these groups. Looking towards the reasonably foreseeable future, and the very real possibility that the security situation in Afghanistan will degrade further, I find that Turi/Bangash Shia, in Kurram agency, face a real chance of persecution for reasons of their Shia religious beliefs and their actual or imputed political opinion as opposing the Sunni theocratic worldview of the LeJ, IS and other Sunni terror groups.

11. I find that if the applicant returns to his home area in the reasonably foreseeable future there is a real chance, that is, one that is not remote or far-fetched, that  he would be subjected to serious harm amounting to persecution on account of his Turi/Bangash ethnicity (race), his Shia Muslim religion and his imputed political opinion. I find that his fear of persecution is well-founded.

12. The applicant fears harm from non-state actors, specifically the TTP, LeJ, IS and other Sunni terror groups. Country information indicates that, despite the sporadic security actions of the Pakistan state, state protection from the Pakistan government in the applicant’s home area remains weak, unpredictable and vulnerable to significant corruption. I am particularly concerned by the reporting of the USDOS Country Report on Terrorism that notes the Pakistan government did not restrict the Afghan Taliban and the Haqqani Network from operating safe havens in Pakistan, nor did it limit terror organisations from raising money, recruiting and training in Pakistan. DFAT reports that ‘state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.’[16] I find that the Pakistan state is unable or unwilling to protect the applicant, given the country information on state protection, the situation in his home area, and the ability of Sunni terror groups to operate with impunity. I find that the applicant will not be able to access effective protection, and that a real chance of serious harm to him will remain if he returns to his home area.

    Relocation

    [16] DFAT Country Information Report – Pakistan, 20 February 2019, 5.1.

13. Where an applicant cannot return to their home area, it is incumbent on the Tribunal to consider whether, objectively, it is reasonable in all the circumstances for the applicant to relocate to an area of Pakistan where there is no appreciable risk of the feared harm.

14. There are large Shia communities in big cities in Pakistan. The Shia population is dispersed throughout the country, and in most parts of the country, ‘Shia and Sunni communities are generally well integrated’.[17] DFAT identify Islamabad and Rawalpindi as reasonably safe from politically motivated terror and sectarian violence, with a relatively high level of internal migrants from conflict zones including the former FATA.[18]

    [17] DFAT Country Information Report – Pakistan, 20 February 2019, 3.91.

    [18] DFAT Country Information Report – Pakistan, 20 February 2019, 5.18.

15. However, the applicant faces considerable difficulties in relocating. DFAT notes when discussing relocation of Turi peoples (which for the reasons above I consider analogous to the situation for the applicant as a Shia Bangash person):

    Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes. Turis claim a Turi child died at a North Waziristan checkpoint because security officials refused the family’s request to cross to visit a hospital. DFAT is unable to verify this claim. Notwithstanding these difficulties, global Turi Shi’a networks and donation systems can assist Turis to relocate to other cities in Pakistan. Such support often relies on a senior male Turi advocate, limiting access for poorer members of the community, especially women and children. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of language barriers, notably Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi.[19]

    [19] DFAT Country Information Report – Pakistan, 20 February 2019, 3.20.

16. The DFAT report goes on to state that “[p]referred relocation options for Turis are Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of the language barriers they may face. Relocation to Khyber Pakhtunkhwa is not viable, as Turis are discriminated against, face security threats, do not have adequate access to services, and would likely be forced to sell assets.”[20]

    [20] DFAT Country Information Report – Pakistan, 20 February 2019, 3.25.

17. On relocating, the applicant would be identified as a person of the Bangash tribe by his accent, name and home residency.[21] But he would also face attention from the authorities as a Pashtun, who DFAT assess 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.’[22]

    [21] DFAT Country Information Report – Pakistan, 20 February 2019, 3.13.

    [22] DFAT Country Information Report – Pakistan, 20 February 2019, 3.12.

18. In addition to his Bangash tribal affiliation, his Shia faith and his Pashtun ethnicity, the applicant has personal characteristics which will impact on his ability to relocate within Pakistan. He suffers significant mental health challenges, he does not have family in other parts of Pakistan, and he has limited language abilities. He has worked in a variety of jobs but all lower skilled and it would be difficult for him to earn enough to establish himself with little or no family support in another city.

19. In particular I am concerned that his mental health issues, which I have accepted, of depression, frequent suicidal ideation and symptoms including impact on sleep, eating, mood and temper as well as stress, would very significantly impact on his ability to relocate to another part of Pakistan. Despite moves to improve the situation, I note also that there is a lack of mental health services in Pakistan.[23]

    [23] Hussain SS; Khan M; Gul R; Asad N. Integration of mental health into primary healthcare: perceptions of stakeholders in Pakistan. East Mediterr Health J. 2018;24(2):146-153. >

    I have carefully considered the characteristics of the applicant. I accept that relocation to an area outside Kurram agency and the FATA would lead to a diminution of the risk of harm to the applicant to a level where it would not appreciably reach the level of real chance. However, to do so the applicant would expose himself to a medium risk of official discrimination as a Pashtun, and a moderate level of societal discrimination as a Shia. He would almost certainly need to relocate to a Shia area, which would reduce his ability to gain employment sufficient to afford housing and food, he would do so without family support, and his significant mental health issues would compound these difficulties. Considering his personal situation, I find that it would not be reasonable, in all of the circumstances, for the applicant to relocate to avoid his risk of persecution in his home area.

    Conclusions

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

    DECISION

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

    Sean Baker
    Member

    
    
    

Monitor, 19 March 2009,

Monitor, 19 March 2009, ‘FATA Annual Security Report 2019’, FATA Research Centre, 20 January 2020