1831953 (Refugee)

[2020] AATA 1495

1831953 (Refugee) [2020] AATA 1495 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831953

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:James Lambie

DATE:1 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 01 May 2020 at 12:30pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – interpretation issues – availability of Pakistani Pashto interpreters – mental health issues – religion – Shia Muslim – race – Pashtun – Turi – targeted by the Taliban in the former Kurram Agency – internal relocation – Rawalpindi or Islamabad – former association or imputed membership of the Imamia Student Organisation (ISO) – new claims or evidence – father’s profile as a political figure in the Kurram region – access to health care – ability to subsist – returnee from a Western country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S, 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 7 November 2012 and the delegate refused to grant the visa on 19 March 2014.

3. This matter was remitted to the Tribunal [in] October 2018 by the Federal Circuit Court of Australia, quashing a Tribunal decision of 19 August 2015 and requiring the Tribunal to determine according to law the application for review of the decision of the delegate of the Minister for Immigration and Border Protection made on 20 March 2014.  The court found that the Tribunal had misconstrued or misapplied subsections 36(2)(aa) and 36(2B)(c) of the Act in assessing, respectively, the risk of significant harm and elements of the complementary protection criteria.

4. The applicant appeared before the Tribunal on 6 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

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

   RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

16. 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. Section 91R(2) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

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.

20. 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.

    Mandatory considerations

21. 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

22. 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.

23. The applicant claims to be a Pashtun and Shia Muslim and a member of the Turi tribe, born in [year] in [Parachinar], Kurram Agency. He completed his secondary education in Parachinar and speaks and writes Pashto, Urdu and some English. He has provided his Pakistani passport biodata page, Pakistani national identification card (CNIC) and his Pakistani birth certificate, along with some other personal documents.

24. The applicant claims that his identity as Pashtun, Shia and Turi are easily recognisable in Pakistan from his ID card, his name and his appearance.  He claims to have been ‘targeted’ by Sunni extremists in Parachinar and elsewhere in Pakistan because of his religion.  In particular, he claims that the Taliban has targeted Pashtun Shias on the road between Parachinar and Peshawar, killing or kidnapping them.

25. Following the completion of his secondary education (which the applicant claims to have been disrupted by the violence in and around Parachinar, affecting his results), the applicant travelled to Rawalpindi and began studying a [qualification] in [Discipline 1]. He claims that there he started supporting the Islamic Students Organisation (ISO) and participated in protests condemning the Taliban. He withdrew a month into the course because, he says, of the abduction and killing of Shia students. He moved in with his uncle in Islamabad and continued attending protests. He left Pakistan [in] June 2012 and travelled through [Country 1], [Country 2] and [Country 3] with a people smuggler. He arrived on Christmas Island [in] July 2012 and lodged an application for a protection Visa on 30 November 2012.

26. The applicant claims to fear that he will be abducted, tortured and killed by the Taliban on account of his religion, ethnicity and involvement in anti-Taliban protests if he returns to Pakistan. He also claims that he faces similar risks as a member of household imputed with pro-Government and anti-militant views (see paragraph 30). In a post hearing submission, his representative expanded these claims to include his membership of the social groups “a failed asylum seeker returning from a Western country” and “someone with liberal values and appearance in a starkly religious country.”

27. The delegate accepted that the applicant took part in the protests and that a photograph of him doing so was published in an article in 2011. The delegate determined that, considering the applicant’s role in the protests and the scale and frequency of the protests, the mere fact that the applicant was in attendance did not give rise to a real chance of him being seriously harmed by the Taliban. The applicant had never claimed to have experienced harm in Islamabad or elsewhere for his Turi ethnicity, attendance at protests or Shia religious affiliation. The delegate determined the chance of the applicant being at a mosque, gathering or protest in Islamabad where there may be an attack on Shia Muslims to be remote. The delegate further noted that the applicant had been able to relocate to Islamabad without apparent financial, religious or social difficulties and found there was no reason to believe that the applicant would experience substantial hardship if he established himself in Islamabad.

28. The Tribunal, in 2015, found that the applicant’s submissions were not consistent with his claims about attending protests while in Rawalpindi. The applicant’s evidence to the Tribunal was that he only became a member of the ISO and attended protests in Islamabad. The Tribunal determined that the applicant was never a member of the ISO, although he supported the organisation. There was very little information before the Tribunal about the targeting of ISO members by the Taliban or other insurgent groups. The Tribunal therefore determined that the applicant did not face a real chance of serious harm arising from his support of the ISO. The Tribunal also noted discrepancies in the applicant’s evidence: for example, claiming that he had been forced to leave school after one month because he had been targeted by the Taliban and conceding that he had never been threatened or harmed by the Taliban or any other insurgent group. The Tribunal found that the applicant had a subjective fear of the possibility of harm but that the country information did not support the applicant’s contention that he was at risk of harm while studying. The Tribunal noted that, while the applicant had had his photograph taken at a protest, he was not approached or threatened by any person at any subsequent protest. The Tribunal therefore did not accept that the applicant had been personally targeted because of his religion, ethnicity or real or imputed political opinions or activity. 

29. For the hearing on 6 September 2019 before the Tribunal as presently constituted, the applicant lodged a statutory declaration (dated 4 September 2019) and a psychologist’s report.  His representative’s written submissions were received on 30 September 2019 and addresses matters arising from the hearing in addition to detailed submissions on the applicant’s claims.

30. The applicant’s statutory declaration claims that he continues to fear harm returning to Pakistan because of his religion and membership of the Turi tribe as well as being a known affiliate or perceived member of the ISO (he now clarifies that by “ISO” he means the Imamia Student Organisation, a large and well-organised Shia organisation in Pakistan). The applicant also raises a new claim, relating to his father, a tribal elder, who he says is a prominent Turi leader who has been interviewed by the [media] in relation to his anti-Taliban activities. A report from a [correspondent in] October 2010 was attached to the statutory declaration. The applicant says that, since he arrived in Australia, his father had become even more prominent. He claims that his parents had informed him over the telephone that in recent times his father has received threats from anti-Shia extremists arising from his support for the holding of local elections. He says that his father’s prominence entails a risk of harm to the applicant himself. Finally, he claims that relocation within Pakistan is not possible because of his religion and ethnicity, lack of financial support in Islamabad or Rawalpindi and his mental health issues.

31. The applicant gave oral evidence at the hearing in relation to these matters and his representative’s post hearing written submission expanded on some of that evidence.  I have considered all of that material at length and, where relevant, refer to it further in the paragraphs below.

    Communication at the hearing

32. In his statutory declaration and in the post hearing submission, I was asked to bear in mind to issues that might affect the applicant’s capacity to give evidence at the hearing.

33. The first of these was that the applicant says that, to date, he has had difficulty giving evidence through interpreters. In his statutory declaration of 4 September 2019, he says (at paragraph 3):

    “I wish to state that there have been some discrepancies in my matters because I have been required to speak through interpreters who I have difficulty understanding. I have difficulties with Pashto interpreters because they are from Afghanistan and Pakistan. I have never had a Pakistani Pashto interpreter. In Parachinar we speak our own tribal dialect of Pashto. Our Pashto language is a mix of Afghan and Pakistani Pashto, Urdu and even English. This is very different to Afghan Pashto. We often use Urdu words without realising but Afghan interpreters do not know these words. We use the Urdu but not the Pashto numbering system. I often worry whether I have understood questions precisely, or whether interpreters understand me because of these language issues. Nonetheless, I persevere knowing that there are no Pashto speaking interpreters available from Parachinar.”

1. At the outset of the hearing, the applicant noted that he had “a little problem” with the interpreter arising from differences in their dialects. However, noting the difficulty in the applicant himself had acknowledged with obtaining an interpreter fully conversant in the tribal dialect used in Parachinar, I directed that we should proceed with the hearing and attempt to deal with difficulties as and when they arose. In the event, the range of issues and discrepancies were of a fairly limited compass and there were few objections as to interpretation that arose in the course of the hearing. His representatives submitted after the hearing:

   During interview our client stated he was uncomfortable proceeding with the Interpreter provided at hearing assisting via teleconference. The Tribunal was notified of communication difficulties on several occasions, including by way of statutory declaration dated 4 September 2019, in submissions emailed to the Tribunal on Thursday, 5 September 2019 requesting an adjournment after it had been brought to our attention the on-site Pashto interpreter had withdrawn, and finally by way of oral testimony during the hearing preamble and throughout the hearing. Prior to commencement of the hearing the client conversed with the interpreter and after listening to the interpreter in the preamble asserted, he did not understand interpreter well. The Tribunal’s response was quote let’s just press on and do our best, and deal with that as it arises.

   We submit our client was unreasonably compelled to speak to an interpreter who he struggled to understand and had difficulty understanding him. The consequence of the above is that he felt uncomfortable while required to advance and explain his protection claims. Throughout the hearing there were instances where our client complained, in English, that the interpreter had not interpreted his testimony correctly. This resulted in him attempting to rectify by speaking in broken English sentences, either to express his claim clearly or to identify an interpretive issue [three examples are given] …

   We submit that the above objections ought to have prompted the Tribunal to facilitate an alternative interpreter. This could have been facilitated by way of making an on the spot request for a second telephone interpreter, or more ideally and as requested, to adjourn the hearing pending availability of an on-site interpreter…

   We contested the Tribunal’s decision to dismiss our client’s prehearing adjournment request was unreasonable. Our client felt disenfranchised and extremely disappointed given his language difficulties our client’s condition was exacerbated when the Tribunal unilaterally proceeded to change the interview start time, without explanation, in a new invitation dated just one day before the hearing. This demonstrated to our client how easy it was for Tribunal staff to make amendments to the Tribunal schedule encouraging his belief that he was a mere burden and the Tribunal was only interested in dealing with his matters at its own convenience.

2. The Tribunal’s decision to proceed with the interpreter was made with regard with to the applicant’s statutory declaration, namely, that Pashto interpreters with a specialty in the Parachinar dialect are very scarce (it was his previous representative’s submission in June 2019 that there are, in fact, no NAATI accredited interpreters fluent in the Pakistani Pashto dialect).  It was also at the request of his previous representatives that the hearing was moved from [one city] (where the applicant ordinarily resides) to [another], where the scarcity of interpreters with the specialised skills is even more acute.  It being very unlikely – on the applicant’s statutory declaration, it had never been achieved in his experience – that the ideal interpreter could be engaged, I determined that the best available resources be deployed and, where necessary, the appropriate allowances should be made.

3. The complaint about the change to the commencement time of the hearing refers to a one-hour postponement for administrative reasons.  I reject the submission that this was in any way disrespectful or oppressive.

4. The three examples cited by the representative, for which the representative has arranged double translation, do not appear to me to represent significant misinterpretation and have no discernible effect on the evidence, for reasons explained further below.

5. The second issue relates to the applicant’s mental health. It was said on his behalf that the quality of his testimony and his overall capacity to engage was impaired. In support of this a psychologist’s report was submitted with a diagnosis of anxiety, depression and post-traumatic stress disorder. The report states that the applicant claims he is not ready for the hearing because he is terrified of being returned to Pakistan, despite being legally represented and that he feels he should have the benefit of at least one to 2 months of psychological therapy in order to prepare for a hearing. A view was expressed that, owing to stress and anxiety he may present unfavourably in terms of responsiveness to questions and an inability to express himself with clarity or cohesion. The psychologist opined that his powers of recall may be affected by PTSD.

6. The applicant’s representative submitted that, in these circumstances, the Tribunal should adopt a low threshold in respect of the applicant’s ability to advance his protection claims and give compelling testimony. The submission also notes that some eight years had passed since the incidents which precipitated the applicant’s departure from Pakistan and that it was normal and natural for someone in the applicant’s position to suppress “ill memories”. Further, it was submitted that owing to the applicant’s feelings of isolation in Australia arising from his lack of travel rights and the other implications of not having a bridging visa since 2015, his ability to concentrate, focus and to present himself as he wished should be borne in mind when assessing his claims and interview testimony.

7. I have taken the psychologist report and the submissions into account. I was mindful of the psychological report in the course of the hearing and took steps to ensure that my questions were confined chiefly to the most recent claims and to clarify those specific aspects of his claims where discrepancies had been previously noted adverse to his credit. Where possible, I have avoided making adverse findings on the applicant’s credit on the basis of demeanour and the quality of his oral evidence. Where any such findings are necessary they are explicitly referred to below.

   The refugee criterion – former Kurram Agency

8. The applicant made extensive claims concerning the security situation in Parachinar and the former Kurram Agency. His evidence was that he observed first-hand the aftermath of terrorist attacks and that he considered that he and his family were being targeted by the Taliban. The delegate accepted the applicant’s assertion that Turi Shias are targeted with harm by the Taliban and other armed Islamic extremist groups in Parachinar. The delegate therefore found that there was a factual basis to the applicant’s fear of being subjected to severe forms of sectarian violence in Parachinar. This is consistent with current country information.

9. Accordingly, I accept that the applicant faces a real chance of persecution in Parachinar and surrounding areas. It now becomes necessary to determine the feasibility and reasonableness of the applicant relocating to other parts of Pakistan.

   The refugee criterion – Pakistan generally (relocation)

10. The basis of the applicant claims to have a well-founded fear of persecution in Pakistan generally are those listed in paragraph 30.

11. It was said on behalf of the applicant that the existence of traditional Pashtun codes of behaviour (including honour and retribution) is why so many Turis from Parchinar and the Upper Kurram in general, but particularly when their villages are in areas of direct conflict with the Taliban, do not feel safe outside their home area. It was said that they fear becoming victims of random violent acts of revenge if recognised by former Sunni residents of the Kurram Agency or those with links to other insurgent networks stemming from that region.

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

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

    section 15 of the Constitution guarantees freedom of movement throughout Pakistan and there are no legal impediments to relocation. This applies equally to Shias and other religious sects. Because of Pakistan’s size and diversity, internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination and violence. In many cases, there are options for members of most ethnic and religious minorities, including Shias to relocate to areas of relative safety within Pakistan. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities. These cities also provide greater access to employment, education and health care services. For example, Turi migrants in Islamabad have told DFAT these factors were central to their decision to relocate from Kurram Agency. [1]

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

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

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

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

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

    Some Turi migrants in Islamabad have reportedly received unspecified threats from sectarian elements. According to Islamabad-based think tanks, there is a declining incidence of kidnapping for ransom incidents in Islamabad. Kidnappers have historically targeted Ahmadis and, to a lesser extent, wealthy migrants from tribal areas.[2]

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

15. The Tribunal accepts that the applicant is identifiable as Shia, Turi and However, having regard to the country information cited above and, in particular the low levels of sectarian violence in Islamabad and Rawalpindi, combined with the large number of Shia Muslims in Pakistan, the Tribunal is satisfied that the chance of the applicant being harmed in an act of sectarian or generalised violence in Rawalpindi or Islamabad is remote.

16. Accordingly, on the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm for reasons of his Shia religion or the fact that he is Turi or Pashtun in Islamabad or Rawalpindi. 

17. I have given careful consideration to the applicant’s claim that his former association or imputed membership of the ISO might expose him to the risk of serious harm, especially in Islamabad or Rawalpindi (see paragraph 28 above). Apart from the applicant’s assertions, which appear to be entirely subjective, I have been unable to find any objective or independent evidence that ISO membership would expose the applicant to the risk of significant harm, or indeed any harm. It would appear that the ISO is visible and active and even its own propaganda does not indicate that its members are at particular risk. Further, the evidence of the applicant’s association with the movement is now some 10 years old and limited to a single photograph. The ISO, as its name suggests, is a student organisation – a descriptor or that does not apply to the applicant. The ISO also operates as a feeder organisation for a significant number of other well-established Shia political entities, to none of which the applicant claims to be affiliated. I therefore cannot be satisfied that there is any real chance that the applicant would be at risk of serious, or less than serious, harm arising from any imputed association with the ISO.

18. I have also carefully considered the applicant’s claim that he might fear harm by reason of his father’s profile as a political figure in the Kurram region. As noted in paragraph 30, this is a new claim, evidenced by a single internet article dating from 2010. The interest of a [reporter] in the applicant’s family, some two years before the applicant left Pakistan and a year before he claims to have been photographed at an ISO demonstration, would have been a very significant and memorable event. The absence of any mention of it until 2019 strikes me as very strange.

19. 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.  I am not satisfied that the claimed state of the applicant’s mental health, or some disposition to forgetfulness under stress, constitute a reasonable explanation given that he has been professionally represented throughout a seven-year process.  No material was submitted to support the applicant’s claim that his father’s profile is now even higher than it was in 2010.

20. The applicant makes two further claims which, he says, make it unreasonable or impracticable for him to relocate to centres such as Islamabad and Rawalpindi. In a sense, they are cognate claims and I will deal with them together. At paragraphs 13 and 14 of his statutory declaration he claims:

    In the past I was able to travel to Islamabad and Rawalpindi because our financial situation was secure and because I lived with my uncle. This is no longer the case as our family business is not doing well and only my eldest brother works in the shop. My uncle is around [age] years old and retired. He resides in Peshawar and lives off support from his sons who live abroad. My family cannot support me remotely because they have relatively weak finances compared to the living expenses in urban centres such as Islamabad or Rawalpindi.

    I cannot relocate within Pakistan because I have mental health issues and will not be able to access services or support in a new and unfamiliar region. I fear my mental health issues will spiral in a new region and cause me to become isolated.

21. I understand these claims to have an underlying assumption that, for reasons of the state of his mental health, the applicant would be unemployed or unemployable in Pakistan. I have the evidence of the psychologist; I do not have any evidence from the applicant or anything in the way of expert evidence that would satisfy me that the applicant is unemployable. I also have no evidence that his condition would not be responsive to medical or psychological treatment, other than the statement of the psychologist that she believes that the applicant would be “a good candidate for psychological therapy and recovery if he is kept in Australia.”

22. The DFAT Country Report states that basic healthcare in Pakistan is free, but of limited quality and accessibility. The quality of healthcare in the larger cities is significantly better than in rural areas. The report notes that many religious and secular charities provide emergency relief, education and health services, while tending to focus their support on the specific needs of the community or sect[3]. It seems clear that the availability of psychiatric treatment and medication in Islamabad or Rawalpindi would be inferior to that currently available to the applicant; however, it would appear that the applicant has not sought or relied upon medical assistance of that nature to any significant extent while in Australia. I therefore do not consider that his health condition represents any practical barrier to relocation.

    [3] DFAT Country Information Report, Pakistan (20 February 2019), p. 11

23. The applicant’s representatives, in the post-hearing submission, claimed that the applicant’s language barriers, limited education, lack of work skills and poor health (in respect of which, see paragraph 55) together with his poor financial situation would impugn his ability to find employment and subsist elsewhere in Pakistan. It does not seem to me that his languages, education (which qualified him for tertiary admission), and work experience place him at any more of a disadvantage than the rest of the large cohort of migrants to Islamabad and Rawalpindi from the Kurram Agency referred to in paragraph 46 above.

24. At paragraphs 48 and 49 above I have assessed the applicant’s risk of serious harm as a result of his religion and ethnicity as remote. While noting that the levels of crime and generalised violence in Pakistan are significantly worse than in Australia, I do not consider that he faces any risk of harm (including less than serious harm) appreciably higher than any other member of the local community, whether by reason of religion, ethnicity or socio-economic factors, were he to move to Islamabad or Rawalpindi.  I therefore do not consider these factors to be a practical barrier to relocation.

25. I have also considered whether his personal circumstances as a returnee from a Western country may put him at some risk of harm, including less than serious harm. DFAT “assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate.”  Given that the applicant’s reason to migrate stems from conditions in the Kurram Agency, in common with a significantly large community in Islamabad and Rawalpindi, I do not assess his risk of harm or discrimination to be appreciable and therefore no obstacle to the practicality of relocation.

1. The Tribunal has considered the applicant’s claim that, as a Pashtun, he would face racial discrimination and racial profiling in Pakistan. The DFAT Country Report states that Pashtuns comprise an estimated 15.4% of the population of Pakistan, making them the second largest ethnic group in the country after Punjabis. It notes that the largest Pashtun communities live in Karachi, which hosts the largest population of Pashtuns in the world. There are also large communities in Islamabad and Lahore. Pashtuns are represented at all levels of society in Pakistan, historically dominating employment in the transport sector and also being well represented in the security forces. The DFAT report assesses that Pashtuns face a medium risk of official discrimination in the form of terrorism related and racial profiling by security forces in areas where they are a minority, particularly in the Punjab[4]. I am not satisfied that the risk that the applicant faces such discrimination would heighten his risk of facing serious harm beyond that assessed at paragraphs 48 and 49 above.

   [4] DFAT Country Report, Pakistan (20 February 2019), p. 24

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

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

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

4. 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 43 to 60, I have found that it is reasonable for the applicant to relocate to areas such as Islamabad and Rawalpindi where there is not a real risk that he will suffer significant harm. I have also not accepted that the applicant fears harm on any other basis. The Tribunal is also not satisfied that the applicant will suffer significant harm for reasons associated with his presence in Australia for a lengthy period.

5. 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.

6. 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).

7. 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).

8. 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

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

   James Lambie
   Senior Member