1826771 (Refugee)

[2021] AATA 5131

1826771 (Refugee) [2021] AATA 5131 (16 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1826771

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Senior Member Dr N Manetta

DATE:16 November 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal, acting under s 415(2)(d) of the Migration Act 1958, sets aside the decision under review and substitutes a new decision that the applicant satisfies the criteria in s 36(2)(a) of the Act.

Statement made on 16 November 2021 at 4:49pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – Shia – race – Hazara – applicant’s safety dependent on internal relocation – worsening conditions for Shia in Pakistan – effective protection measures – decline in security situation – religious violence – increase of extremist sentiment – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 415, 499
Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application by [applicant’s name] seeking a review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2018 to refuse to grant him a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. [The applicant] applied for the visa on 10 November 2015. The delegate refused to grant the visa because in his[1] view [the applicant], whilst clearly at risk of persecution in Quetta as a Hazara of the Shia Muslim faith, was not at risk of persecution throughout Pakistan. In particular, [the applicant] was not at risk of persecution in Islamabad. The criterion appearing in paragraph (c) of the definition of “well-founded fear of persecution” in s 5J of the Act was not, therefore, satisfied as the risk of persecution did not “relate to all areas of Pakistan”. The delegate further found that the so-called “complementary ground” for a protection visa specified in s 36(2)(aa) was not satisfied.

   [1] The delegate used the name “John” and I shall assume the delegate was male.

3. [The applicant] appeared before the Tribunal on 16 September 2021. He was represented by [his named representative] at that hearing.  The hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. 

   TRIBUNAL’S TASK

4. The Tribunal conducts in these matters what is known as a de novo hearing on the merits. This implies that the Tribunal considers afresh the evidence adduced before it. Basing itself on its evaluation of that evidence, the Tribunal then reaches what it considers to be the correct or preferable decision. It follows that the Tribunal may set aside a decision under review without necessarily disagreeing with any of the reasoning in the decision; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a discernible error in the reasoning of the decision-maker.  The Tribunal reaches its decision having regard to the facts as at the date of its decision.  In this matter, the delegate reached his decision more than three years ago, on 31 August 2018.  The security situation for Hazaras may well have improved or deteriorated in the intervening period.

   STATEMENT OF CONCLUSION

5. In this case, I have decided to set aside the decision under review and to substitute a new decision that the applicant satisfies the criteria in s 36(2)(a) of the Act.

   FINDINGS OF FACT

6. I now set out the background facts, my key findings of fact, and the application of the legal regime.

7. [The applicant] was born in Quetta in Pakistan and is now [age] years old. He is Hazara and of the Shia Muslim faith.  [The applicant] has [specified family members]. His mother and father are no longer alive.  Some [siblings] are living in Iran, one is in Europe. [Other siblings] are married and continue to live in Quetta. [The applicant] grew up with his father, who died in 2013. [The applicant] believes his mother died when he was [approximate age] years of age, which would place her year of death some 13 years ago, or in 2008 approximately.  [The applicant] completed schooling up to [grade] in Quetta.  He then started working. He received on-the-job training as [an Occupation 1] and worked in a [business] in one of the local markets in Quetta. He was living in Mariabad in Quetta and would take public transport to the market where he worked.  He gave evidence he had to give up work because of the threats that were made against the Hazaras living there. 

8. The circumstances of [the applicant’s] migration to Australia are as follows. [The applicant’s] father arranged [the applicant’s] engagement to a woman living in Australia. This woman is herself of Hazara descent. She travelled to meet [the applicant] in Iran, a safer country, and they became engaged (or possibly underwent a religious marriage ceremony) at that time.

9. [The applicant] was sponsored to come to Australia in 2014. He arrived in Adelaide and in due course he underwent a marriage ceremony here as I understand the evidence.  The marriage did not last, however. For the purposes of my review, it is irrelevant why the marriage did not last, but it would appear that there were difficulties over [the applicant] not having brought with him sufficient money with which to support his wife and also over her apparent lack of fidelity.  I need not draw any conclusions in respect of these matters: I merely note them as background.

10. The end of the marriage entailed the cancellation of [the applicant’s] Australian visa.  He subsequently applied for a protection visa on the basis that if he had to return to Pakistan, he would be persecuted there on account of his ethnicity as a Hazara. This application was rejected.

11. I would note that the delegate decided (at p 8 of his determination) that in his view [the applicant] would face a real chance of persecution (due to his race and religion) at the hands of sectarian groups in Quetta.  This conclusion was supported by the 2016 DFAT Country Information Report on Pakistan to which he had regard. The delegate found, however, that “available information indicated that Islamabad remained highly safe from sectarian violence in 2016”. The delegate concluded that the level of anti-Shia violence in Islamabad was low enough that the chance of persecution based on [the applicant’s] religion was best described as “remote” rather than real (at p.9).  At page 10, the delegate indicated his view that [the applicant] could relocate safely to Islamabad.

12. There is now a new DFAT Country Information Report on Pakistan: it is dated 20 February 2019.  I have had regard to it.  It contains relevant information about the security situation in Pakistan.  Before turning to the Report, I would note that I agree with the delegate that Hazaras are readily distinguishable from other Pakistanis on account of their distinctive facial characteristics.  I also note that a majority of Hazaras are of the Shia faith.  Hazaras are commonly assumed, therefore, to be of the Shia persuasion.  That [the applicant] would be rightly judged in Pakistan to be Hazara on account of his facial characteristics and assumed[2] to be of the Shia persuasion (as a Hazara) has obvious implications for him given ongoing tensions between Shia and Sunni Muslims in Pakistan.

    [2] [The applicant] is in fact Shia by faith.  

13. Two questions of fact I must decide are what dangers, if any, there are to someone like [the applicant], who will be viewed as a Hazara Shia, and, secondly, whether any dangers I identify apply throughout Pakistan.  The delegate, deciding the matter in 2018, found in [the applicant’s] favour on the first question, but not on the second.

14. The more recent 2019 DFAT Report, to which I have referred, contains the following information at [3.47]:

    “DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs.  Hazaras face a higher risk that other Shi’a due to their distinctive appearance and to segregation.”

15. In respect of Shias, the Report further notes at [3.104]:

    “Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence.  This can vary depending on geographic location and for members of specific groups (see Hazaras and Turi’s).  High profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.”

16. Paragraph [3.104] does not contradict [3.47] as [3.104] itself makes clear.   All in all, therefore, the 2019 DFAT Report supports the view that Hazaras are at a high risk of violence because of their religious beliefs, actual or imputed, and at least in part because they have a distinctive appearance.  The Glossary (at p 6) indicates that the term “high risk”, when used in the Report, implies that DFAT is aware of “a strong pattern of incidents”.

17. I do not think it is necessary to go further than the DFAT Report, but the sources to which I refer below further support the conclusion.

18. So far as the second factual question is concerned, in this de novo review, as I have said, it is not necessary for me to find an error in the delegate’s decision-making processes before setting aside the decision.  But I would note the following. The delegate’s conclusion in relation to Islamabad appears at pp 8-9 of his decision.  I observe that the delegate decided that the low level of violence in Islamabad was due, at least in part, to government efforts to secure the capital, which included numerous police check points along highways and at major intersections and prominent buildings. Paramilitary rangers also patrolled Islamabad’s streets.  The delegate referred to the relevant 2016 DFAT Report when drawing these conclusions.

19. The better outlook in Islamabad (as compared with other parts of Pakistan) at that time seems to have been due to a strong security presence rather than to any more harmonious climate as such.  Indeed, the need for elaborate security operations in and around the capital points very strongly to the acceptance by the responsible authorities of a strong underlying threat of violence in the capital. 

20. It would also follow, in my opinion, that if that security presence were relaxed at any time in the future or if it proved defective, one might expect, all things being equal, an increase in successful attacks.  This makes any finding of a “remote” risk of violence contingent on an ongoing and effective security presence.  It is problematic, in my opinion, to find as a matter of fact that a risk of violence to a person is “remote” in circumstances where the low level of risk depends on the maintenance of elaborate security operations to deter what is otherwise regarded as an appreciable threat. 

21. I think a fair assessment of [the applicant’s] claims does need to take into account the fact that security operations may or may not be maintained effectively in the future.

22. All in all, the situation for Shias in Pakistan appears to have deteriorated since the 2016 DFAT Report.   In this respect, I note a number of matters.  There has been an increase in more recent times in blasphemy cases, which almost always target those who are not of the Sunni Muslim faith.  Pakistan’s Human Rights Commission noted, for example, an increase in blasphemy cases in August 2020 filed mainly against Shiite Muslims.[3]  According to this source, the rise in blasphemy accusations and street protests against Shias has been described by the HRC’s Chairman as “unprecedented”. He said “[w]e are worried it can flare up (sic) sectarian violence”.  Another senior official at the HRC said the authorities were not doing anything to rein in extremist groups but were rather “turn[ing] a blind eye to sectarian organisations that are spreading hatred against Shiites” amongst other religious minorities.  That is a serious accusation.

    [3] See DW News Report: “Pakistan: Hardline Sunni Groups on collision course with Shiites”  dated 14 September 2020 >

    The Diplomat reported on 17 September 2020[4] on large-scale demonstrations against Shias in Karachi over successive days.  These were “targeting the Shia Muslims of Pakistan”.  Demonstrators were estimated to number 30,000 at least.  There were chants of “Shia kafir” (or “Shia infidels”).  Banners of “Sipah-e-Sahaba Pakistan” were observed: this group is a proscribed terror group.  

    [4] KK Shahid What Role does the State Play in Pakistan’s Anti-Shia Hysteria? The Diplomat, 17 September, 2020.

23. The article also refers also to the Punjab Assembly having passed a Bill called the Protection of the Foundation of Islam[5] Bill.  This Bill is reported as upholding “the Sunni interpretation as the only acceptable version of Islam in Pakistan” and as having made it mandatory for all Pakistanis to “identically revere esteemed Sunni figures”.  This is reported to have caused uproar amongst Shia clergy.  The commentary in the article suggests explicitly that the State has either acquiesced in the anti-Shia hysteria or has wholeheartedly backed it.  This article raises matters of concern.  I attach some significance to the passage of the Protection of the Foundation of Islam Bill at State level because it suggests that explicit prejudice against Shia Muslims has now become politically acceptable as a programme within a State-based legislature.[6]

    [5] Tahaffuz-e-Bunyad-e-Islam.

    [6] A Home Office Report suggests the Bill had not yet been “signed into law” as of July 2021: see Country Policy and Information Note Pakistan: Shia Muslims, July 2021, at [2.4.3] and [5.2.4].    

24. The Diplomat further reported on 28 September 2020[7] on anti-Shia rallies.  It was noted that this was “the first time that three prominent groups within Sunni Islam- Deobandi, Sufi Barelvis and Salafists- concurrently held public rallies in a single week, openly calling the Shia sect “heretical”, its followers “infidels” and demanding violent action.  The article suggests that the radicalising of Barelvis against the Shia will “put Shias at risk of multi-layered violence from at least three big Sunni groups in the coming years”.

    [7] JA Mirza The Changing Landscape of Anti-Shia Politics in Pakistan The Diplomat, 28 September 2020.

25. I would also refer to an article in The Guardian.[8]  The journalists refer to a number of disturbing events.  First, they assert that a two-day rally in Karachi in mid-September 2020 was the largest anti-Shia march seen on Pakistan “in decades” and that it “was copied in other cities including Islamabad”.  The fact that marches of this type are held in the capital, Islamabad, is of some real concern. 

    [8] SM Baloch and H Ellis-Petersen Pakistani Shias Live in Terror as Sectarian Violence Increases, The Guardian, 21 October 2020.

26. Secondly, the journalists report that two “hard-line” Sunni groups, Ahl-e-Sunnat-Wal-Jamaat and Tehreek-e-Labbaik Pakistan are at the forefront of the anti-Shia campaign.  The former group had previously been banned in Pakistan under the country’s Anti-Terrorism Act before the ban was lifted in 2018.  Both these groups were allowed to run in the 2018 election and garnered seats in Parliament.  Ahl-e-Sunnat-Wal-Jamaat is reported as having “thrown its weight” behind 70 candidates from Mr Imran Khan’s party, which won and formed government.  The article reports that even the Khan Government’s own Minister for Science and Technology “conceded that sectarianism was an issue that was getting ‘out of hand’.”  In this regard, there is also a report from 2018[9] of a provincial government or the federal government- it is not clear which- having removed a radical Sunni cleric named Ludhianvi from its banned list of political candidates in time for the forthcoming election.  Ludhianvi was the leader of Ahl-e-Sunnat-Wal-Jamaat.

    [9] See M Anwar Pakistan Pulls Extremist from Terror Watch List, Extremism Watch, 29 June 2018.

27. The Human Rights Commission of Pakistan has issued a report entitled “State of Human Rights in 2018”. That Report is instructive. It refers (at p. 111) to a US Annual Religious Freedom Report released in June 2018 that suggests religious persecution is growing in Pakistan.  There is considerable detail concerning attacks against Hazaras (at pp111-112). 

28. The well-known case of a Christian woman, Aasia Bibi, is instructive and is referred to at pp120-121 of the Report.  The Supreme Court of Pakistan had overturned her conviction for blasphemy in October 2018.  The Balochstan Assembly then passed a joint resolution calling on the federal government to apply to the Supreme Court to review its own decision.  Large protest rallies followed.  The Report continues as follows at p 121:

    “Initially indicating a firm stance, the government subsequently chose to enter into an agreement with the protestors,[10] supporting a perception that they had surrendered to the violent mobs.  Pending a judicial review, Aasia Bibi was still not free at the end of the year and her whereabouts unknown.  Her lawyer fears for his life after receiving real threats from the far-right.

    The apparent ease with which a few thousand extremists shut down Pakistan’s major cities, controlling roads into and out of Lahore, Karachi and  Islamabad, has invoked (sic) real concern as to whether the apex court, let alone a trial court, can dare to release a victim of alleged blasphemy.”

    The Report implies that the federal government decided to appease, rather than actively oppose, extremists opposed to minority religions, and that roads leading into and out of Islamabad fell under the demonstrators’ control. 

    [10] The text alongside the photograph on p 121 suggests the agreement was one to seek a review of the decision and that demonstrations only ceased when the government signed the agreement.

29. In The Diplomat in April 2021[11], there is reporting on negative social media references to Shias. The article also discusses the practice of “enforced disappearances” carried out by security forces, involving arbitrary arrest and unlawful detention without trial, that now target Shias, together with other minority groups.  

    [11] See JA Mirza, Pakistan’s Shias Face Double Threat: Extremists and Their Own Government The Diplomat 6 April 2021.

30. Finally, I note the UNHCR issued a report in January 2017.[12]  The Report, at pp55ff, gives a very concerning view of attacks upon Shias and the disproportionately high number of Hazaras among victims due to their visibility (at p 55) even as of 2017.  The Report also refers (at p 55) to the government having been criticised for failing to protect Shias and for allowing militant organisations to operate with impunity.  The Report (at p 59) refers to attacks against Shias in all parts of Pakistan and the corresponding footnote (fn 392) refers explicitly to attacks in Islamabad.  I note a US Department of State Report in 2019 refers to there being a “serious risk of terrorism in Islamabad”[13].

    [12] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01, available at: US Department of State, Pakistan 2019 Crime and Safety Report: Islamabad” p 3.

The sources I have consulted support the conclusion in the 2019 DFAT Report that Hazaras face a “high risk of violence”.  I am concerned by the reports in these sources of the more recent increases in extremism towards Shias, of blasphemy charges, of large and explicitly anti-Shia rallies, including in Islamabad, as well as the passage by a state legislature of a Bill widely seen as targeting Shia beliefs. 

I am concerned also by the reports in the sources to which I have referred of security forces having been complicit in the practice of enforced disappearances (a practice now extended to Shias) and of having failed to protect Hazara Shias adequately.  I am concerned by the removal of an extreme Sunni cleric from a banned list, and by the report of an agreement having been reached between the government and protesters in relation to the Supreme Court’s reversal of a blasphemy conviction.  This conviction concerned a Christian woman, but in my view the fact that the case concerned a different religious minority makes no difference.  I am also concerned by the references in the sources to dangers in Islamabad.

1. My review of the source material leads me to conclude that as a matter of fact the risks to Hazara Shia are increasing not decreasing, and, furthermore, that there is no reason for concluding in 2021 that the risk of suffering harm in Islamabad is “remote”.  As I have said large anti-Shia rallies have been head in major cities, including Islamabad, and I do not believe it is correct to infer that the risk of attack in Islamabad in the short to medium term is remote.  Some of the sources I have cited above refer to attacks in Islamabad and to danger there. As I have noted, the conclusion reached by the delegate on the basis of the 2016 DFAT Report depended in any event upon the ongoing maintenance of effective security operations in Islamabad, not on there being a more tolerant milieu as such.  All in all, I have decided that as of my decision today, there is no sufficient basis for concluding that the threat [the applicant] would face were he to live in Islamabad would be remote. 

2. My critical findings of fact are, therefore, that [the applicant] would face in Pakistan an appreciable risk of harm to his person as a Hazara.  I believe that this risk exists throughout the country and is appreciable in Islamabad.

   LEGAL REGIME

3. I now turn to apply the law. 

4. Section 36(2)(a) of the Act provides, relevantly, that one criterion for a protection visa is that the Minister be satisfied that Australia owes protection obligations to [the applicant] as “a refugee”. The concept of “refugee” is elaborated in ss 5H and 5J. [The applicant] claims he fears being persecuted in Pakistan as a Hazara (and this fear relates to his ethnicity and assumed religion). I accept this statement. Section 5J(1)(a) is satisfied. I also conclude that there is a real chance that [the applicant] would in fact be persecuted for this reason were he to return to Pakistan. The risk of violence has been rated as high by DFAT. Section 5J(1)(b) is satisfied. I conclude that the threat to [the applicant] exists throughout Pakistan as there has been widespread and increasing anti-Shia sentiment throughout the country in recent times. The risk to [the applicant] in Islamabad is not “remote” in my judgment. Section 5J(1)(c) is satisfied.

5. Section 5J(2) provides that [the applicant] will not have a well-founded fear of persecution, and therefore not be “a refugee”, if effective protection measures are available to him in Pakistan. The concept of “effective protection measures” is elaborated in s 5LA. I need not set out the section. I do not believe there are effective protection measures available to [the applicant].

6. In this regard, I would refer to the 2019 DFAT Report at [5.11] which assesses that police capacity, judged overall, is limited in Pakistan. Para [5.15] mentions the alarming practice of “forced disappearances” which is elaborated in Chapter 4 of the Report. I have referred at [30] above to this practice and to the fact that it is now suggested that the practice is being used against Shias. That is an alarming development. Overall, as the sources from which I have quoted demonstrate, the Government itself would appear to have encouraged, or at least acquiesced in, the burgeoning anti-Shia sentiment, which might lead to an extremist attack. All in all, I do not believe s 5J(2) applies.

7. I note that there is no suggestion on the papers that there is a third country to which [the applicant] might return.

   CONCLUSION AND FORMAL DECISION

8. Having regard to the widespread and appreciable increase in extremist sentiment throughout Pakistan in more recent times, I have concluded that [the applicant] satisfies the criterion in s 36(2)(a) of the Act. I shall set aside the decision under review and substitute a new decision to this effect under s 415(2)(d) of the Act.

   Dr N Manetta
   Senior Member