1838190 (Refugee)

1838190 (Refugee) [2023] AATA 737 (6 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Shahid Nadeem (MARN: 0851112)
CASE NUMBER:  1838190
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Roslyn Smidt
DATE:6 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 6 February 2023 at 12:51 PM
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – ethnicity, religion and political opinion – Pashtun tribal Shi’a opposed to militant extremists – refused to be recruited by local militants – returnee with agnostic and liberal opinions and behaviour – country information – moderate risk of violence and discrimination – reasonableness of relocation – community and family ties and travel to visit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (aa), (2A), (2B), 65, 91R, 91S
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

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 (Cth) (the Act).
The applicant, who is a citizen of Pakistan, applied for the visa on 20 November 2012, and the delegate refused to grant the visa on 6 March 2013. The delegate’s decision was affirmed on 23 July 2013 by a differently constituted Tribunal (the first Tribunal). This delegate’s decision was affirmed by another Tribunal (the second Tribunal) on 1 September 2016.
The applicant appeared before the Tribunal on 18 August 2022 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.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country: where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The applicant is a [Age]-year-old married man of Shi’a Muslim faith and Pashtun ethnicity. He belongs to the Orakzai/Mohammed Khel tribe. He was born in [Location 1] in the Orakzai District of what is now Khyber Pakhtunkhwa (KP) Province, but from [year] to 1998 lived mostly in [Location 2], where he completed primary school and five years of high school. From [Year] until [Year] he studied at [College] where he obtained a diploma in [Subject]. He speaks, reads and writes English, Urdu and Pashto.
The applicant married in August 1996. He has [a number of children]. His wife and children live with his parents in [Location 2]. His wife is not educated and does not work outside the home. His oldest son is currently studying [at] college [which] is located near [Location 1]. The other children are at school in [Location 2]. His family owns houses in [Location 2] and [Location 1].
The applicant’s siblings live in [Location 2]. His father has a second wife. She and their children also live in [Location 2]. His father worked in [Country 1] many years ago. He currently farms land in the local area but is mostly dependent on the applicant for financial support.
The applicant lived and worked in [Country 2] from March 1998 until April 2012, first as [an Occupation 1], then from 2004 until 2011 as [an Occupation 2] [doing Job task 1] for the [Employer]. In 2012 he worked briefly as [an Occupation 3] for a [company]. He left [Country 2] because many Shi’a people working in the country were being deported and he no longer felt secure.
While living in [Country 2] the applicant visited Pakistan in 2002, 2004, 2005, 2008 and 2010. He stayed with his family in Orakzai for about two months on each occasion.
The applicant obtained Pakistani passports in [Country 2] in 2003 and 2008. He left Pakistan on a genuine Pakistani passport. He travelled from [Country 2] to [Country 3] in April 2012, before travelling on to [Country 4] and [Country 5]. His passport was taken by the agent who arranged his travel to Australia, but he has a copy. He arrived in Australia [Christmas Island] by boat [in] August 2012. He was detained on Christmas Island and [Detention centre] until October 2012. Since then, he has held bridging visas. Since arriving in Australia he has worked in several unskilled jobs in Australia. He currently works as an [Occupation 2].
SUMMARY OF THE APPLICANT’S CLAIMS
The applicant claims that he faces a real chance of experiencing serious or significant harm from Sunni extremists such as the Taliban, other members of the Sunni and Shi’a community and the government of Pakistan because of: his Shi’a faith or background; his Pashtun ethnicity; his place of origin and membership of the Orakzai/Mohammed Khel tribe; his refusal to join a Shi’a militia; his political opinions or imputed political opinions, including his opposition to militant Shi’a groups and Sunni extremists; his membership of the particular social group of failed asylum seekers/returnees from a western country; and his decision to become a non-believer who now holds liberal views. He claims that he would be at risk of harm for at least some of these reasons throughout Pakistan and that the Pakistani authorities could not or would not protect him. He claims that even if he were able to find a safe haven somewhere in Pakistan, it would not be reasonable to expect him to relocate because: he does not have family or established connections outside Orakzai; he would have difficulty earning an adequate livelihood; he would be separated from his family and community in Orakzai, which would cause distress to him and his family; and he would be compelled to visit Orakzai to see his family, which would place him at risk of harm.
COUNTRY INFORMATION
The following is intended to provide an overview of the situation in Pakistan in so far as it is relevant to the applicant’s claims. It does not pretend to be a comprehensive account of developments in Pakistan during the period in question.
Shi’a Muslims[1]
[1] Unless otherwise stated, this overview is based on information in DFAT Thematic Reports on Shi’as in Pakistan dated 18 December 2013, 14 April 2015 and January 2016 and Country Information Reports dated 29 November 2013, 15 January 2016, 1 September 2017 and 25 January 2022
According to DFAT, between 10 and 20 per cent of the population of Pakistan [20 to 40 million people] are Shi’a Muslims. Apart from Hazaras, Shi’a are not physically or linguistically distinguishable from Sunnis, although they may be identifiable because of their name or their tribal affiliation. Shi’a Muslims live throughout Pakistan. . There are significant populations in Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. While some Shi’as live in enclaves, Shi’a and Sunni communities in cities outside KP are generally well integrated.
Ability to practise the Shi’a faith
DFAT has consistently advised that there are no legal restrictions on freedom of religion for Shi’a, and they are able to establish places of worship and practise their religion without overt state interference. Its 2022 report noted that the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’, which would have criminalised Shi’a beliefs about the Companions of the Prophet. Media reports[2] state this development was greeted with widespread criticism from civil society organisations, minority groups and others, and as result, a number of Assembly Members withdrew their support. The Assembly unanimously called for the formation of a committee including prominent religious clerics to review the Bill. The Law Minister for Punjab, Raja Basharat, stated that without consensus, the Assembly would not move on the bill. That said, it appears that extremist groups may attempt to have similar legislation enacted in future.
[2] PA opposes Tahaffuz Bunyad-e-Islam Bill, demand amendments, The Nation, 8 August 2020, and Punjab Tahaffuz-e-Bunyad-e-Islam bill 2020 reined in over criticisms, Voicepk, 9 August 2020 >
In a report dated September 2022, International Crisis Group[3] noted that the police continued to file first information reports against Shi’a possessions. Whether this resulted in arrests or banning of the possessions is not stated. It also notes some examples of police stopping Shi’a religious gatherings at private homes citing lack of permission, despite the fact that no such permission is required.
Discrimination
[3] A New Era of Sectarian Violence in Pakistan, International Crisis Group 5 September 2022. See in particular section V, Targeting Shi’a
According to DFAT, Shi’a are well represented in parliament and regularly contest elections for mainstream political parties.
The Pakistani constitution provides that no citizen can be denied admission to a publicly funded education institution on the grounds of race, religion, caste or place of birth. Similar provisions apply to discrimination in access to public places and public sector employment. According to DFAT, many people do experience discrimination on these grounds, for example Ahmadis, Hazaras and women. However, reports do not suggest that Shi’a generally face problems of this kind. In 2016, DFAT noted that according to credible human rights groups, there is no evidence of discrimination against Shi’as in gaining admission to the civil service, police, military, or private sector.
Prior to 2022, DFAT reported that Shi’a generally did not face discrimination in areas such as education, employment or access to government services. The 2022 report noted that religious intolerance had increased in Pakistan and that there had been an increase in official discrimination against Shi’a in the form of increased blasphemy accusations, and that Shi’a face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence but provided no specific information on the situation in relation to access to employment, education or government services.
The 2021 US Department of State Report on International Religious Freedom in Pakistan reports that some members of religious minority groups such as Christians, Hindus, Sikhs and Ahmadis faced discrimination in areas such as education and public employment, but makes no mention of Shi’as facing problems in these areas.
Sectarian violence
It is clear from DFAT and other reports that Shi’a have faced sectarian violence in Pakistan for many years. A number of extremist Sunni groups have strong anti-Shi’a views and have claimed responsibility for attacks on Shi’a institutions and individuals. The incidence and severity of these problems has varied over time and according to location. Specific groups such as Hazaras and members of the Turi tribe, who traditionally reside in Kurram District in the former Federally Administered Tribal Areas (FATA), face a heightened risk of harm.
According to DFAT and others, sectarian and extremist violence rose sharply sometime between 2007 and 2010. The available reports give somewhat differing accounts of when this violence peaked and the number and nature of attacks. The following overview does not pretend to provide a comprehensive account of terrorist attacks or sectarian violence in Pakistan in recent years. It is intended to provide some insight into the situation of Shi’as over the past decade and the likelihood of terrorist attacks or sectarian violence in future.
According to DFAT’s 2013 reports, sectarian attacks were recorded across all sects in 2012. Over 85 per cent were in Kurram District, parts of Karachi, Quetta and Gilgit in Baltistan. Sectarian attacks also occurred sporadically in Punjab, Hangu, Khyber and Orakzai. Banned Sunni militant groups were largely responsible for these attacks, but Shi’a militias also carried out some fatal attacks. At least 91 attacks targeted Shi’a, resulting in about 500 fatalities. Targets included places of worship, processions and residential areas. Many attacks occurred during Muharram. Despite these problems, DFAT continued to assess that community violence between Sunnis and Shi’as was relatively low-level and that Sunni and Shi’a communities were generally integrated and lived side-by side in their daily lives.
According to the European Asylum Support Office (EASO) Country of Origin Information Report on Pakistan dated August 2015[4], the Pakistani Institute for Peace Studies (PIPS) reported that 1,206 terrorist attacks were carried out by militant, nationalist/insurgent and violent sectarian groups in 2014, resulting in 1,723 deaths. About 36 percent of these attacks targeted security forces and law enforcement agencies; about 18% targeted civilians. About 13% involved sectarian targets, mostly Shi’a and Sunni communities and places of worship. Other targets included pro-government tribesmen, tribal peace committees, political leaders, schools and health workers. According to PIPS, 559 of these attacks occurred in KP/FATA (835 deaths), 341 in Balochistan (375 deaths) and 217 in Karachi (317 deaths). There were 14 attacks in Punjab, 31 in Sindh excluding Karachi and 14 in Islamabad.
[4] I acknowledge that it is likely that the monitoring groups cited by EASO and others have not recorded all incidents of extremist or sectarian violence in Pakistan. Nevertheless, in my view there is no reason to doubt that they provide a broadly accurate picture of the situation during the periods covered

DFAT’s January 2016 Thematic Report on Shi’as indicates that extremist violence peaked in 2014. Reports indicate there were some 1,242 target killings and 346 terrorist attacks between September 2013 and September 2014. Military operations against terrorist groups launched in mid-2104 reduced the level of violence by some 75 per cent. In the following 12 months, 411 target killings and 150 terrorist attacks were recorded. The report notes that heightened state protection during Shi’a religious celebrations had lessened the risk of harm during those occasions. DFAT again assessed that most Shi’a faced a low risk of experiencing sectarian violence.[5]
[5] This term is used when DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern
In 2019 DFAT noted that while there had been a decline in sectarian violence since 2014, attacks against religious minorities continued and Shi’as continued to face threats from anti-Shi’a militant groups. It also noted that commentators had reported increased religiosity and growing religious intolerance from 2018. Nevertheless, they assessed the risk of sectarian violence for most Shi’a as low.
The increase in religious intolerance contributed to violent demonstrations by Sunnis in Karachi and elsewhere in 2020 and 2021. According to one media report dated August 2020, a years-long operation by security forces starting in 2013 brought a lull in violence, although scattered attacks still took place.[6] However, in August-September 2020 tens of thousands of Sunnis, including members of some banned extremist groups, took to the streets in Karachi and elsewhere to protest perceived insults or blasphemy by senior Shi’a leaders during Ashura. They shouted anti-Shi’a slogans and called for violence against them. Media reports indicate that there were fears of widespread anti-Shi’a violence as had occurred in the past. However, while there was an increase in blasphemy accusations against prominent Shi’a leaders and some Shi’a were killed, none of the available evidence suggests that this occurred. Demonstrations involving extremist groups protesting developments relating to the publication of cartoons in France in 2021 resulted in violent clashes between extremists and police, but there does not appear to have been a significant increase in sectarian violence in Karachi or elsewhere since that time.[7]
[6] Anti-Shiite protest rattles Pakistan’s Karachi, Arab News, 11 September 2020, See for example, The Changing Landscape of Anti-Shia Politics in Pakistan – The Diplomat protest in Pakistan over reprinting of Mohammad cartoons in France | Reuters; and Four killed, hundreds wounded in clash with police as radical Islamists move to march on Pakistan’s capital, Washington Post, 28 October 2021, >
The EASO Pakistan Security Situation Report issued in October 2021 provides a detailed account of security developments in Pakistan in the preceding 18 months based on reports from several organisations which closely monitor the situation.
According to the Armed Conflict Location and Event Data (ACLED) Project there were 483 security incidents in 2020, of which 113 involved violence against civilians. They reported 459 security incidents in the first seven months of 2021, of which 142 involved violence against civilians (p 43-45).
According to PIPS, there were 373 security incidents, including 146 terrorist attacks, resulting in 220 deaths in 2020, one incident of political ethnic/violence resulting in no deaths, one sectarian clash resulting in two deaths, eight communal faith-based clashes resulting in eight deaths, and 11 targeted attacks resulting in 14 deaths. Most of the other incidents involved conflict between security forces and extremist groups (p 46). Four of these incidents involved attacks on Shi’a religious scholars or community members (p.46 & 58).
In the first six months of 2021, PIPS reported 158 security incidents, including 97 terrorist attacks, resulting in 180 deaths, one incident of political/ethnic violence resulting in two deaths, three incidents of communal/faith-based violence, one targeted attack not involving terrorists resulting in one death and three clashes between security forces and protestors. According to PIPS there were about 10 kidnappings in 2020 (p 47).
According to the Pakistan Institute for Conflict and Security Studies (PICSS), there were 333 security incidents in 2020, an increase of 23 per cent since 2019. There were 187 attacks by militants. A total of 127 civilians were killed as a result of these incidents. PICSS also reported 49 targeted killings resulting in 64 deaths, most of which occurred in the former FATA. During the first seven months of 2021, PICSS reported 263 incidents of anti-state violence by militants, during which 111 civilians were killed. PICSS also reported 46 targeted killings resulting in 54 deaths (p 44-45 & 51).
Reports on sectarian-related violence varied significantly (p 51-52). PIPS recorded seven incidents resulting in nine deaths and 14 injuries. Two of these incidents were bomb blasts, one a clash in the city of Rahim Yar Khan in Punjab, and the others appear to have been targeted killings. Most occurred in Karachi, while some occurred in Kurram and Kohat. PIPS recorded no sectarian related terrorist attacks in the first six months of 2021. The Centre for Research and Security Studies (CRSS) reported 58 deaths as a result of sectarian violence in 2020 and 17 casualties as a result of sectarian violence in the first six months of 2021, mostly in Balochistan, KP and Sindh. CRSS reported that seven people were killed and 801 injured when violence erupted during a protest by Tehreek-e-Labbaik (TLP) in April 2021.[8]
[8] TPL is a right-wing Sunni political party which has staged mass demonstrations demanding changes to blasphemy laws and the expulsion of the French Ambassador for perceived insults to Islam. It has been banned and many members have been arrested but reports also suggest that the government has acceded to some of its demands and is sometimes reluctant to act against it for fear of losing support. See for example Protests across Pakistan after far-right TLP leader arrested >
Overall, the data in the EASO report suggests that KP, in particular the former FATA, and Balochistan continued to be the main areas impacted by extremist and sectarian violence, with some violence also occurred in the Punjab and Sindh provinces.
According to the 2021 US Department of State Country Report on Human Rights Practices for Pakistan, societal violence due to religious intolerance remained a serious problem in Pakistan. There were occasional reports of mob violence against religious minorities, including Christians, Ahmadi Muslims and Hindus. Shi’a Muslim activists reported continuing instances of targeted killings and enforced disappearances in scattered parts of the country.
The 2021 US Department of State on Religious Freedom in Pakistan report for 2021 indicates that the number of sectarian attacks and killings by armed groups had increased since 2020. It reports Sunni groups held large sectarian rallies in Peshawar and Karachi in September 2021 and Karachi in September and October 2021 at which speakers threatened members of minority religions of dire consequences if they said anything deemed blasphemous. It notes that there were numerous instances of societal violence related to allegations of blasphemy and of societal harassment, discrimination, and threats of violence directed at members of religious minority communities. It provides a number of examples of these problems, but limited information on their overall frequency.
The US Report notes that the government had taken measures to protect religious minorities, including establishing a special police unit in all provinces. Police and security forces enhanced security measures during religious holidays in consultation with religious leaders. Provincial authorities in Sindh and the Rawalpindi district, and federal authorities, banned “firebrand” Sunni and Shi’a speakers from leaving their homes for up to 60 days during Muharram to avoid violent disturbances. It reports on arrests and charges against some people involved in sectarian attacks, but also notes that officials are sometimes reluctant to take action and that members of minority religions may not be provided with adequate protection.
The US Report cites information from the Centre for Social Justice (CSJ) which states that 84 persons were accused of blasphemy in 2021, a significant decrease from the 199 individuals accused in 2020. According to the report, 30 per cent of those charged were Ahmadis[9] and 16 per cent were Christians or Hindus. The remaining 54 per cent were Muslims. No information was available on how many of this group were of the Shi’a faith, but it seems likely that they formed the majority of the Muslim cases.
[9] Ahmadis consider themselves to be Muslim, but many other Muslims do not
Overall, the US report indicates that some followers of all religious faiths, including Sunni Muslims, experienced some problems related to their religion during the year, that Shi’as faced a greater risk of harm than Sunnis, and that Ahmadis and non-Muslims such as Christians and Hindus were most at risk of facing discrimination or harm.
In January 2022 DFAT noted that the security situation in Pakistan had deteriorated in 2021 due to factors such as domestic politics, religious extremism, ethnic conflicts, sectarian hatred, the situation in Afghanistan and the re-emergence of the TTP. TTP activity has been mostly in Waziristan and surrounding districts; they also have a presence in Quetta and parts of Karachi. The report cites information from PIPS which states that attacks by extremists/terrorists fell from 1,717 attacks resulting in 2,451 deaths in 2013, to a low of 220 attacks resulting in 146 deaths in 2020, then rose slightly in 2021 to 200 attacks resulting in 293 deaths. Most of these attacks were in the former FATA where the main targets were security forces and government representatives. However, extremist groups continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, and there were some attacks in Punjab and Sindh.
The report notes that while the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistani security forces continue to conduct operations against groups which attack its interests and in response to specific threats and incidents. There has been an increase in these operations commensurate with the recent increase in terrorist attacks
The DFAT report noted that the frequency of terrorist attacks on Shi’a individuals, places of worship and other sites had steadily declined since 2013. According to the report three people were killed and 50 injured during bombing on a Shi’a procession in Bahawalnagar in Punjab in 2021 while five Shi’a were killed and injured in 14 terrorist attacks in 2020 (not including attacks targeting Shi’a Hazaras). This compares with 471 deaths in 2013 and 32 deaths in 2019. The reduction is the result of the overall improvement in the security situation in Pakistan since 2014 and increased police security for Shi’a places of worship and processions. However, the report cautions that sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a in Pakistan.
The DFAT report observes that an increase in religious intolerance had increased anti-Shi’a sentiment. Sectarian tensions often flare during Shi’a religious celebrations such as Muharram and in 2020 thousands of Sunni protestors took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. The leader of the TLP openly threatened beheadings for Shi’a blasphemers. According to the report, there were targeted killings in multiple cities in 2020. No information was provided on the location or number of these deaths. Authorities have attempted to curb sectarian problems during Muharram by measures such as banning firebrand Sunni and Shi’a clerics from leaving home and by cutting mobile phone services in major cities during processions.
The report states that over 40 Shi’a were charged with blasphemy following religious processions in 2020. It appears that some lower court convictions for blasphemy are overturned by higher courts. However, that is not always the case and those accused of blasphemy can face the death penalty and are at high risk of extrajudicial killing. According to DFAT there were 200 blasphemy cases in 2020, the highest number ever recorded. Over 70 per cent of these cases involved Shi’a.
Overall DFAT assessed that Shi’as faced a moderate risk[10] of sectarian violence and societal discrimination in the form of anti-Shi’a protests and community violence.
[10] This term is used when DFAT is aware of sufficient incidents to suggest a pattern of behaviour
According to a September 2022 report from the International Crisis Group,[11] Pakistan’s counter-terrorism approach has achieved short-term successes but has neglected long-term strategies that would deny or restrict political and civic platforms for those who espouse radical interpretations of Sunni Islamand has failed to put hard-line operations out of business. It notes that hatred of non-Sunni Muslims has spread to some Sunni Islamist groups once seen as moderate, while ultra-orthodox Sunni groups have pressured the government to extend blasphemy provisions to cover Shi’a interpretations of Islamic history and expressions of faith. It states that supporters of some Sunni Islamist groups chant anti-Shi’a slogans outside Shi’a places of worship during Muharram in cities such as Karachi, and Islamabad and that anti-Shi’a slogans on walls and social media have increased. It states that anti-Shi’a mobilisation reached a new pitch in August 2020 when large demonstrations demanding that the state declare Shi’a to be deemed heretics were held in Karachi. Massive protests were also held in Karachi, Rawalpindi and elsewhere later in 2020 in response to cartoons published in a French magazine. The report records violence against police during these demonstrations and arrests and charges against some extremist Sunni leaders. It also reports on lack of action by the authorities in some cases following pressure from Sunni Islamist groups. While anti-Shi’a rhetoric has continued, particularly during Muharram, and the authors of the report express concern about future sectarian violence, there is no suggestion that the large-scale anti-Shi’a demonstrations of late 2020 were repeated. Nor are there any reports of widespread communal violence.
[11] A New Era of Sectarian Violence in Pakistan, International Crisis Group, 5 September 2022. See in particular section V, Targeting Shi’a
The ICC report also notes that misapprehensions of a Shi’a militant threat led security agencies to crack down on Shi’as. Anecdotal evidence that some local Shi’a had joined Iran-backed militias fighting in Syria and Yemen resulted in the detention or disappearance of scores of Shi’as returning from Iran and Iraq. Some Shi’a social activists have also been the victims of enforced disappearances. The disappearances provoked demonstrations by Shi’a activists, including a large one in Karachi in 2019 that succeeded in pressuring the state to release many, and the number of people missing appears to have decreased from a high of several hundred to 50. The fact that an anticipated increase in sectarian attacks by Shi’a did not occur also appears to have lessened security concerns.
A report issued by PIPS on 29 September 2022 noted that terrorist attacks in Pakistan had increased by 51 per cent in the year since the Taliban takeover in Afghanistan. According to the report, there were 250 terrorist attacks during that period, resulting in 433 deaths. Most of these attacks occurred in KP (156 attacks mostly involving Sunni extremist groups, an increase of 89 per cent) and Balochistan (79 attacks, mostly involving separatist groups, an increase of 12 per cent). Six attacks in occurred in Punjab and Islamabad (a decrease of 20 per cent) and between nine and 34 in Sindh (these appear to have mostly involved nationalist groups and do not appear to have targeted Shi’a). The report states that there was a decrease of 47 per cent).[12]
Civil unrest and criminal violence
According to DFAT violent crime occurs across Pakistan, including armed robbery, assault, carjacking and kidnapping. According to UN Office on Drugs and Crime data, Pakistan has a homicide rate of 3.1 murders per 100,000 population, about average for the region and lower than the global average of 6.1 murders per 100,000 population. Islamabad has a lower crime rate than other major cities due to its large security presence. Crime rates in Lahore and Karachi have also dropped in recent years due to police crackdowns.
[12] Fallout of Afghan situation and Pakistan’s policy responses, PIPS, 29 September 2022, origin
According to DFAT, there are an estimated 20 to 25 million Pashtuns in Pakistan, making them the second largest ethnic group in the country. Traditionally they live in areas across southern Afghanistan and north-western Pakistan. Many Pashtuns live in KP Province. There are also significant populations in Sindh and Punjab, particularly in Karachi and Lahore. Most Pashtuns are followers of Sunni Islam. They are well represented at all levels of society in Pakistan and dominate the transport sector.
The association of Pashtuns with the TTP has led to official discrimination and ethnic profiling across the country. In 2016 DFAT observed that the Pashtun community in Lahore had reported harassment from local police authorities at check points and elsewhere. In 2018 local authorities in Punjab issued a notice asking citizens to watch out for people who appears to be Pashtuns or came from FATA. According to DFAT’s 2022 report, Pashtuns in areas where they are in the minority may face low level societal discrimination in the form of racial slurs. The report states Pashtuns in area such as KP face a moderate risk of violence from security forces, while Pashtuns residing elsewhere in Pakistan face a low risk of official or social discrimination and a similar risk of violence to other ethnic groups in the same area.
Unlike most Pashtuns, the applicant is a follower of the Shi’a faith. Reports state that some Shi’a groups such as Hazaras or members of the Turi tribe face an increased risk of harm because of their background. The applicant does not belong to either of these groups, but his background is similar to members of the Turi tribe as he is of Pashtun ethnicity. DFAT’s 2022 report notes that members of the Turi tribe faced significant violence in Kurram District between 2014 and 2017 and continue to face a moderate risk of violence from militant groups in that area. In other parts of Pakistan, they face a similar risk of discrimination as other Pashtuns and a similar risk of sectarian violence as other non-Hazara Shi’as.
The situation in KP Province and Orakzai
Orakzai is a district in KP Province. Prior to 2018 it was an agency within the FATA. The population of KP is mainly Pashtun and predominantly Sunni. Orakzai has a population of about 250,000. The Orakzai tribe is predominately Sunni but includes a significant number of Shi’a from the Mohammed Khels. There also appear to be a number of Shi’as from the Bangash tribe in Orakzai Agency. Sunni and Shi’a communities are separated by the Mastura River, with the Shi’a living on the river’s south end. Among the Shi’a, the Saiyid (Syad) takes the place of the Mullah. The influence that a Syad has over his disciples is extraordinary. The Syad is deemed to be sacred and his curse is considered dreaded.

Orakzai was relatively calm until about 2004 to 2006, when Pakistan Army operations in South Waziristan forced many Sunni militants who had been operating in the area to seek refuge in the agency.[13] The TTP, which purported to unify most of the existing Sunni extremist groups in Pakistan, was formed in Orakzai in 2007. By 2008 the TTP had taken control of the district, announced the enforcement of Sharia, and established Islamic courts and a parallel administrative system. At the time, Pakistan’s military was not present in the area. Reports indicate that the TTP attacked the Shi’a community indiscriminately and also targeted anyone who refused to cooperate with them. With some government assistance, local tribes, including some Sunni tribes, attempted to resist the TTP, most of whom came from outside the district. The Taliban responded with violence and numerous members of anti-Taliban tribes were killed.
[13] A USEFUL OVERVIEW OF THE SITUATION IN ORAKZAI PRIOR TO 2013 IS CONTAINED IN THE DELEGATE’S DECISION. SEE ALSO PROGRAM FOR CULTURE AND CONFLICT STUDIES ORAKZAI TRIBE, [US] NAVAL POST GRADUATE SCHOOL, 4663074B-4B64-4C67-848D-2047DA378A28 (NPS.EDU), TAYYAB ALI SHAH, PAKISTAN’S CHALLENGES IN ORAKZAI AGENCY, CTC SENTINEL JULY 2010, VOL 3, ISSUE 7 ORAKZAI AGENCY: GOVERNMENT’S WRIT FULLY RESTORED IN KHYBER PAKHTUNKHWA, DAWN NEWS GROUP - PAKISTAN, 26 NOVEMBER 2010; 'TALIBAN CLAIM ORAKZAI SECTARIAN BOMBING THAT KILLED 14', AGENCE FRANCE PRESSE (AFP) - FRANCE, 18 JULY 2012; KALAYA IN PAKISTAN HIT BY DEADLY MARKET BOMB – 8 FEBRUARY 2013, BBC NEWS, ATTACKS IN PAKISTAN'S NORTH-WEST 'KILL AT LEAST 19', 14 FEBRUARY 2013, >
On March 23, 2010, Pakistan’s military launched a major anti-Taliban operation in Orakzai. The army blocked most of the entry and exit routes to and from the district and carried out air-strikes. Many families were displaced to internally displaced people (IDP) camps. Most of the Taliban members fled to Afghanistan and on 1 June 2010, the Army declared that the military operation had achieved its objective. However, they later conceded that they continued to be in conflict with the TTP in upper Orakzai. Reports suggest that while the Taliban no longer controlled the district, the security situation remained volatile and remaining militants continued to present a security threat for some time. In 2012 the Taliban claimed responsibility for a bombing attack on Shi’a which killed 14 people, and in February 2013 a bomb attack on a market in Kalaya killed at least 16 people. The government responded with aerial bombing of a Taliban hideout, which reportedly killed a number of insurgents.
The cumulative impact of a major military operation launched in June 2014, internal splits and loss of community support due to indiscriminate attacks on civilian targets such as schools and markets further reduced the TTP presence throughout the FATA agencies. A number of Taliban members and leaders, including the leadership of the Taliban in Orakzai defected to Islamic State – Khorasan Province (ISKP), which was attempting to expand into the area. None of the sources consulted suggest the ISKP had a significant presence in Orakzai or that it or other extremist groups carried out a significant number of attacks in the district after 2014.[14] Reports suggest that violence in the area lessened after 2014.
[14] For post 2014 developments see DFAT reports and Mapping Militant Organizations. “Islamic State in Khorasan Province (IS-KP).” Stanford University. Last modified June 2018, Pakistan: Deadly blast hits market in Orakzai district, 23 November 2018, /pakistan-deadly-blast-hits-market-in-orakzai-district and Abdul Sayed and Tore Hamming, The Revival of the Pakistani Taliban, CTC Sentinel April/May 2021, Vol 14 Issue 4; EASO Pakistan Security Situation Report, October 2021 and A New Era of Sectarian Violence in Pakistan, International Crisis Committee 5 September 2022
In 2016 DFAT assessed that there was a low level of generalised violence in Orakzai Agency. Nevertheless, clashes between militants and security forces continued and there were sporadic attacks on civilian targets. According to DFAT, the only sectarian attack in the FATA in 2015 was an improvised explosive device (IED) targeting Shi’as at a volleyball match in Kalaya and in November 2018 at least 26 people were killed by an explosion in the market in Kalaya.
According to recent reports, the TTP has been regrouping and has conducted an increasing number of attacks since about 2020. According to the EASO Pakistan Security Situation Report issued in October 2021, the situation began to deteriorate in 2002. KP Province continued to record one of the highest incidences of terrorist attacks in Pakistan, but at significantly lower levels than during the height of the conflict prior to 2013 and mostly in areas such as Waziristan. Most of the attacks in 2020-2021 targeted security forces, primarily police officers. Attacks against civilians declined in 2020.
According to data from the FRC cited by EASO, there were four incidents of violence in Orakzai in 2020, resulting in five deaths and two injuries, compared with one incident in 2019 and three in the first seven months of 2021. PIPS reported two terrorist attacks in the district in 2020 resulting in two deaths and two injuries and no attacks in the first six months of 2021.
The authors of the EASO report sought the opinion of two experts in Pakistan. Their responses provide useful insights into the current situation in KP.
Mansur Khan Mahsud, the Executive Director of the FATA Research Centre, advised that some 90 per cent of reported terrorist activity in KP Province in 2020 and the first six months of 2021 occurred in North Waziristan, and most of it involved conflict between the Pakistani government and extremist groups or conflict between extremists and local Sunni groups. Orakzai, Mohmand and Kurram districts remained mainly peaceful. He also observed that the security situation in Pakistan had begun to deteriorate in 2019 and that indications suggested a likely resurgence in extremist activities in future.
Abdul Basit, a research fellow at the Rajaratnam School of International Studies, observed that after improving between 2015 and 2019, the security situation deteriorated in 2020 with Taliban attacks on the Pakistan security forces in the former FATA region becoming a daily occurrence. Tactics frequently used were targeted killings, IEDs, suicide attacks, kidnappings, grenade blasts, rocket attacks and sabotage acts. He observed that the TTP [essentially the Pakistan Taliban] had reorganised and become more disciplined following the US withdrawal from Afghanistan. The attacks appear to have largely taken the form of ambushes and IED attacks against the Pakistani security forces in North and South Waziristan Agencies. Basit predicted further declines in the security situation in the ex-FATA region.
The ICC September 2022 report states that, according to some Pakistani officials, militant groups claiming affiliation with ISKP are making inroads in the KP. It observes that while groups such as the TTP have focused on attacks on security and law enforcement personnel in KP, ISKP militants have targeted individuals from religious minorities, for example, the March 2022 bombing of a Sikh temple in Peshawar.
Relocation
According to DFAT’s report on Shi’as in Pakistan issued on 15 January 2016, there are no legal impediments to relocation in Pakistan. The size and diversity of the country offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination or violence and there are options for members of most ethnic and religious minorities, including Shi’as, to relocate to an area of relative safety in Pakistan. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and also provide greater access to employment, education and health care services. DFAT observed that Shi’as relocate with relative ease and frequency because of family and communal networks throughout Pakistan. There are large Shi’a communities in Lahore and Islamabad and in towns close to Islamabad. The report notes that migrant communities also provide support networks, for example, it is common for three to four Turi migrant families to jointly purchase and occupy a house in Islamabad, although other Turis choose to live independently in Islamabad.
A report from the UK based The Coalition for Religious Equality and Inclusive Development (CREID),[15] which relates mostly to the problems faced by Hazaras, observed that while religion remains an important factor in Pakistan, non-Hazara Shi’as living in large cities often reside in mixed communities and are generally interdependent with the broader community. It states that there are significant numbers of Shi’a in Karachi and Lahore, including Shi’a-dominated neighbourhoods and hundreds of congregation centres. It also noted that Sunni and Shi’a Muslims living in larger cities in Pakistan were ‘more interdependent and live in mixed communities’.
[15] The Multi-Layered Minority: Exploring the Intersection of Gender, Class, and Religious-Ethnic Affiliation in the Marginalisation of Hazara Women Sadiqa Sultan, Maryam Kanwer and Jaffer Abbas Mirza. November 2020, CREID Intersections Series, Violence and Discrimination against Women of Religious Minority Backgrounds in Pakistan, >
A 2021 UK Home Office report[16] notes that many Shi’a communities in Pakistan are integrated and live alongside the majority Sunni Muslim population, and observes that there are parts of the country where a person would not have a well-founded fear of persecution or real risk of suffering serious harm from non-state actors and it would be reasonable for them to relocate, but provides little specific guidance relating to which areas would be safe for Shi’a people.
[16] UK Home Office Country Policy and Information Note Pakistan: Shi’a Muslim July 2021
DFAT’s January 2022 report also notes that large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations. It observed that internal migration is widespread and common in Pakistan, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. The report notes that for some groups, such as Hazaras, travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
Returnees and failed asylum seekers
According to DFAT, Pakistani citizens who left the country legally and return using valid documents do not have problems with the authorities on return to Pakistan unless they have pre-existing issues or have been involved in or suspected of involvement in criminal activities. Returnees, including failed asylum seekers, are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt. Returnees do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a western country.
Country information provided by the applicant
The applicant and his representatives have provided a range of articles and reports on the situation in Pakistan since the lodgement of his application in November 2012. Some of this information is now dated and of limited relevance. Much of it relates to specific incidents of violence in different parts of Pakistan. In my view it paints a picture which is broadly consistent with the information set out above but lacks the considered overview of the situation over time provided by DFAT and the other sources quoted above.
CLAIMS AND EVIDENCE
Evidence provided to the Department
In a written submission provided in November 2012, the applicant said that he was afraid to return to Pakistan because there was fighting in Orakzai and his village was surrounded by the Taliban. His children were afraid to go to school because of the Taliban and because of searches conducted by government forces, which caused problems for everyone. When he visited his family in 2010, he passed through an area controlled by the Taliban. The vehicle in which he was travelling was fired on and two people were injured. Fortunately, he was not harmed and travelled on to his home the following day without further problems. He also feared Shi’a militants who were forcing men to fight the Taliban and killing those who refused.
The applicant said that he could not live anywhere else in Pakistan because he would be recognised as Shi’a and a Pashtun and he would not be able to practise his religion safely. He said that the government of Pakistan had failed to stop the fighting and killing in the area and the anti-Taliban operations carried out in the area only made things worse as they forced local people to hide their houses.
Copies of a number of documents were provided with this application, including a copy of the applicant’s National Identity Card issued [in] November 2003, a tribal domicile certificate and a passport issued [in] 2011.
The applicant attended an interview with the delegate on 21 February 2013. He appears to have confirmed his earlier claims. After reviewing country information current at the time, the delegate accepted that the applicant had a well-founded fear of persecution in Orakzai District because of his Shi’a religion but found that he could avoid this harm by relocating to one of the cities in Pakistan with a significant population of Shi’a Muslims, for example, cities located in Punjab. Furthermore, given his skills, work experience and demonstrated ability to live in different environments, she found that it would not be unreasonable to expect him to do so.
Evidence provided to the first Tribunal
The applicant’s representative provided a lengthy submission dated 21 June 2013, which repeats the substance of his earlier clams. In addition, it submits that:
·     he was likely to be seen as a westerner or a supporter of the west by extremist groups and this, in combination with his Shi’a faith, would mean that he would be viewed as an opponent and face harm from these groups. In support of this claim, the submission refers to a 2003 New York Times article which states that some returnees from the US had been regarded as traitors.
·     Shi’a militants were forcing people in his area to take up arms and fight and warning that those who refused would be killed.
·     he would be identified as Shi’a if he attempted to live outside his local area because of the manner in which he would practise his religion and he would face a greater risk of harm from Sunni Pashtuns than other Shi’as because he shares their ethnicity and would be seen as a traitor.
·     he would be at risk of harm throughout Pakistan because of his religion and his ethnicity.
·     the Pakistani authorities would not protect him.
In support of these claims the submission refers to a number of reports regarding the situation for Shi’a in a range of locations in about 2010 and the inadequacies of security and legal arrangements in Pakistan.
The applicant attended a hearing of the first Tribunal on 9 July 2013. He said that he was aware of the information in his initial application and confirmed that it was correct. When asked how he practised his religion, he said that he prayed, fasted, went to the mosque and participated in events such as Muharram and Eid. His claims regarding his experiences in Pakistan were not discussed in detail.
The first Tribunal accepted that the applicant had a well-founded fear of harm in the Orakzai for reasons of religion but found that he could avoid this harm by relocating within Pakistan and that it would not be unreasonable to expect him to do so.
The applicant appealed to the Federal Circuit Court, which found that the Tribunal had erred by failing to consider the issue of sectarian violence in Karachi when assessing the reasonableness of relocation to that city.
The second Tribunal
On 28 July 2016 the applicant’s representative provided a submission which repeats the substance of his earlier claims. In addition, it states:
·     his home is in a rural village of [number] households about [Travel time] from Kohat. There are Taliban supporters about five kilometres away.
·     while living in Kohat he found it difficult to assimilate because he was clearly identified as not being a local and tribal practices differed including the manner of prayer, even between different Shi’as.
·     after completing his education, he held several unskilled jobs and was sometimes unemployed.
·     he was not injured during the Taliban attack on the vehicle in which he was travelling in 2010.
·     when the level of violence in Orakzai rose in 2007, village leaders called on local Shi’a to fight Sunni militants. They came to people’s homes to make the men fight. The recruitment usually lasted for a night but could be longer depending on need. Two of his cousins were recruited to fight in 2008. The militants attempted to recruit him twice when he visited in 2008, but his mother persuaded them to leave him alone as he was only on holiday.
·     he became relatively liberal while living in [Country 2]. He had friendships and romantic relationships with women and enjoyed Indian music and movies. When he visited his home in Orakzai in 2010, his family and others in the local community referred to his preferences as haram (forbidden) and scolded him for being a bad Muslim, and he felt ostracised.
·     he would not be able to practise his religion outside his village because he would be recognised as Shi’a which could result in him being harmed.
·     he would be at greater risk of harm than other Shi’as because he is a Pashtun. Other Shi’as would ostracise him because most Pashtuns are Sunnis and Sunni Pashtuns would object to his Shi’a religion.
·     if he returned to Pakistan, he would be forced to pass through territory controlled by the Taliban to reach his home.
·     it would be unreasonable to expect him to relocate because he has never resided outside Orakzai. He has lived outside Pakistan for many years, he does not have family connections or support networks outside Orakzai, he has limited skills and work experience and he would be unable to find employment and support himself and his family. As a result, his family would experience great hardship. In addition, he would be compelled to visit his family in Orakzai, which would place him at risk of harm in Orakzai and when travelling.
The submission goes on to review the situation in Pakistan at the time, in particular the situation in KP and the situation of Shi’as and Pashtuns.
The applicant attended a hearing of the second Tribunal on 4 August 2016. I obtained a transcript of that hearing. His evidence was sometimes unclear. In essence, he confirmed the substance of his earlier claims and provided the following relevant details:
·     there are no Sunnis in his village or local area, but there were Sunnis and members of the Taliban nearby.
·     he believed that he was not looked on favourably when he was at college in Kohat because he was a Pashtun, but he had not had significant problems because of his ethnicity. However, he could not go to Punjab because Pashtuns face problems there.
·     he had minor injuries to his head from flying glass when the car in which he was travelling in 2010 was attacked.
·     Shi’a militias attempted to recruit him many times in 2008 and 2010. They accused him of not practising his religion in [Country 2]. He was excused from joining a militia but warned that he would be forced to fight the next time he visited Pakistan, so he decided not to return.
·     some of his relatives were killed or harmed because of the violence in Orakzai. In 2011 one of his relatives was kidnapped by the Taliban but released when a ransom was paid.
·     he only practised his religion in [Country 2] occasionally. He sometimes went to mosque on Fridays.
·     while living in [Country 2] he began drinking and had an affair with a woman. Many people from Orakzai lived near him in [Country 2] and when he returned to Pakistan, he was called a blasphemer and felt ostracised by his family and community.
·     he has not practised his religion in Australia, but he would be forced to practise it if he returned to Pakistan because he would be killed if he did not attend the mosque.
·     there are no Sunni people in his village so Shi’as can practise their faith there, but it would not be possible to practise the Shi’a religion anywhere else in Pakistan because of the Taliban.
·     Shi’a and Sunni people in his area hate people who had lived in the west because they were believed to have adopted western ideas and they would harm him if he returned to Pakistan.
·     candidates in local elections harmed people who did not vote for them.
·     his family continues to reside in [Location 2] where they have some land and grow vegetables so they can survive. He also sends them money.
·     he could not relocate because he would not be safe anywhere in Pakistan because he would be identified as Shi’a and he would be at risk of harm for that reason.
·     he is adaptable and could find employment in an area outside Orakzai, but he would not be safe, and he would not be able to earn enough to support his family. He would also have great difficulty finding accommodation.
·     he has mainly worked as [an Occupation 2] for many years and [Occupation 2] s in Pakistan are frequently stopped at Taliban roadblocks, which would place him at risk of harm.
·     if he returned to Pakistan and relocated, his family would have to join him because there are not many schools in his local area. The Taliban are present in his local area and they do not allow girls to go to school.
·     he had accumulated substantial debts in Australia to pay lawyers to help with his migration case and he would not be able to repay them if he returned to Pakistan.

Following the hearing the applicant’s representative provided a submission dated 22 August 2016. It repeats the essence of the claims and submissions made earlier regarding the applicant’s fears and adds:
·     he still believed in God, but he no longer practised Islam and considered himself to be an agnostic. In addition, he had adopted western values and practices such as drinking alcohol, interacting with women and watching movies, which would place him at risk of harm from extremists, other Muslims and the government, including charges of blasphemy.
·     he would continue to practise the Shi’a religion in Pakistan out of fear of being considered an apostate and thus he would still be at risk of harm because he would be considered to be a Shi’a.
·     he has lost his National Identity Card (NIC) and would require a new one in order to access basic services and integrate into society anywhere in Pakistan. In order to obtain a new NIC he would have to travel to his home in Orakzai, which would place him at risk of harm.
The second Tribunal accepted that the applicant would continue to practise the Shi’a religion if he returned to Pakistan out of fear of the consequences for failing to do so, that he would therefore be perceived to be a Shi’a and that he would therefore face a real chance of experiencing serious harm in the FATA region if he returned to Pakistan. However, it found that he could avoid this harm by relocating elsewhere such as Hyderabad and that it would be reasonable for him to do so.
The applicant appealed the second Tribunal’s decision to the Federal Circuit Court, which upheld the Tribunal’s decision. He then appealed to the Federal Court which found that the Tribunal did not address the applicant’s claim that he would visit his family and that this would place him at risk of harm.
Submissions to the current Tribunal
Submissions provided in August 2022
The applicant’s current representative provided a written submission on 14 August 2022. It begins by reviewing submissions made to the Federal Court in relation to four claims which it was claimed were not considered, namely the “visitation claim”, (the claim that he would seek to visit his family if they lived apart in Pakistan which would place him at risk of harm), the “travel claim” (the claim that he would be required to travel through Taliban controlled territory if he worked as [an Occupation 2] or to visit his family which would place him at risk of harm), the “social ties claim” (the claim that he would be deprived of his social and communal ties which would have an adverse psychological impact on him) and the “Taliban claim”. This refers to a statement first made by the applicant in his entry interview when he claimed that he and his family had previously come to the adverse attention of the Taliban or Taliban sympathisers, which affected both his and his family’s risk of harm in Pakistan.
As pointed out in the applicant’s submission, the Court accepted that the visitation claim was not addressed by the Tribunal and remitted the case for reconsideration. It did not make findings in relation to the other claims. The submission requests that the Tribunal give proper consideration to all four of these claims.

100. The submission states that, contrary to the second Tribunal’s finding, the applicant was very close to his family. It notes that strong family relationships are part of Pashtun culture. It does not appear to suggest that the applicant’s family would join him if he relocated, but states that they would visit each other. It also submits that living in Pakistan apart from his family would be unreasonable as it would place great strains on their relationship and cause psychological harm.
101. The submission states that the applicant remains at risk of serious harm because of his religion and ethnicity if he returns to his home in Pakistan. In support of that claim, it cites information in the 2022 DFAT report regarding the general situation in KP, the situation of Pashtuns in KP and the situation of Shi’as throughout Pakistan. It also notes recent reports on the return of the TTP to SWAT.
102. The submission states that the applicant and his family have had previous contact with the Taliban and the applicant would therefore be at risk of harm if he returned to Pakistan.
103. The submission states that the fact that the applicant had spent time in Australia and applied for protection would be widely known by people in his local area in Pakistan and this would cause problems if he returned to that area.
104. The submission notes that the applicant currently works as an [Occupation 2] and that he worked as [an Occupation 2] for much of the time he lived in [Country 2]. It observes that he is likely to work a similar job if he returns to Pakistan and submits that this would place him at risk of harm in part because the transport industry is dominated by people of Pashtun ethnicity who are often associated with the TTP. It might also mean that he would have to travel to different cities, which would expose him to anti-Shi’a elements elsewhere.
105. The submission states that the applicant would have difficulty finding work in Pakistan, which would impact on his ability to support his family. It notes that he has no relatives and no tribal or clan links in Hyderabad, which would make it extremely difficult for him to relocate.
The hearing held on 18 August 2022
106. The applicant confirmed the details relating to his background set out above.
107. The applicant confirmed that he had not experienced problems in Pakistan before he initially went to [Country 2] in 1998, but while he was in [Country 2] the violence in Orakzai increased. When asked about any problems he himself had experienced because of this, he mentioned the encounter with the Taliban in 2010 and attempts by local Shi’a groups to recruit him to fight the Taliban.
108. I asked the applicant about his encounters with Shi’a militants. His response was confused. He initially said that the first approach was after his encounter with the Taliban in 2010, but later said that he had been approached every time he visited to Pakistan. I advised him that I had some concerns about these claims as there was no mention of these approaches prior to his submissions to the second Tribunal. I also advised him that it was my understanding that Shi’a had not formed organised militias until about 2008.[17] He said that Shi’a had been pressured to take up arms whenever there was violence. I advised him that I accepted that local Shi’as may have been pressured to take up arms during times of sectarian conflict, but it was my understanding that the Shi’a militias which had been formed in about 2008 to fight the Taliban were mostly disbanded in about 2017. He said that there were still Shi’a militias in his areas because the Sunni might attack at any time and named several, including Sipa Mohammad, which had attempted to recruit him. I noted that he had not been forced to fight when he had been approached in the past. He said that this was because he was only visiting and said that he would cooperate in future.
[17] In fact, the applicant mentioned problems with Shi’a militias in his initial application and further investigation following the hearing revealed that Shi’a militias had been in existence prior to that time, although how active they were in Orakzai remains unclear
109. I noted that the applicant had claimed in earlier submissions that he and his family had come to attention of the Taliban and asked him for further information regarding this contact. He said that he and his family lived close to areas where Sunni who supported the Taliban lived, and they knew each other. I observed that he appeared to be suggesting that Sunnis and Taliban members in the area had an adverse interest in all Shi’as in the area. He confirmed that this was correct.
110. I asked the applicant if his family had experienced any problems while he was living in [Country 2]. He said that the Taliban did not attack women or children, but they had been unable to travel outside the local area and his children had stopped attending school for one or two years around 2008. When asked about the circumstances of his parents and siblings, he said that they had also faced restriction in relation to travel during the most violent period but they had not faced any other problems.
111. The applicant said that he remained closely in touch with his family. His wife, children and parents live together. His oldest child is studying [at] college [which] is located close to [Location 1]. The other three children are at school in [Location 2]. He confirmed that there was a high school in [Location 2]. His wife has never worked outside the home. His father no longer works. His family have some land which they farm, but they are largely dependent on the money he sends. His sisters are married and continue to live in the same area. One of them is married to [an Occupation 4], one to [an Occupation 2], the third to a farmer. The children from his father’s second marriage are very young. I did not enquire about their circumstances.
112. When asked if any members of his family had experienced problems while he was in Australia, he said that one of his sisters had died because there was only a small hospital in [Location 2] and she could not be taken to Kohat where there was a larger hospital because it was dangerous to travel. He said that his family was safe in [Location 2] because everyone who lived there was Shi’a. However, they would not be safe if they left their local area.
113. I noted that it was some years since the applicant had first applied for protection and observed that it was my understanding that the situation in Pakistan in general and in the former FATA region in particular had changed during that time. I asked what he currently feared would happen to him if he returned to his home. He said that there was currently no fighting or violence in his local area where the majority of the population was Shi’a. However, his only skill was [Job task] and he would have to seek work outside [Location 2] to support his family. This would involve spending time in areas with a Sunni majority. He said that the Taliban were reorganising and he would be at risk of harm from them if he returned to Pakistan. Later in the hearing he said that his son would not be able to continue his studies in Orakzai because there is no university in the area, but he would be in danger if he went to the city.
114. The applicant said that his current lifestyle and beliefs would increase the possibility that he would face harm if he returned to Pakistan. Later in the hearing he said that when he first arrived in Australia, he was a believer and practised his faith in a similar manner to other Shi’as. However, he lost his faith after watching programs about religion on YouTube. He stopped believing in God one or two years earlier [about 2020] and had not attended mosque or participated in religious celebrations since that time. I asked him what he meant when he said he was a liberal. He said that he was open minded. He confirmed that he had friends in the Pakistani community in Australia but said that apart from a few close friends, they were not aware he had abandoned his faith and held liberal views.
115. The applicant confirmed that he had developed liberal views and become an agnostic since arriving in Australia. I reminded him of his earlier statements that he had not wanted to attend religious services when he visited Pakistan from [Country 2] and observed that this suggested he had changed his views before arriving in Australia. He said that this was incorrect and added that he had practised his religion before coming to Australia.
116. I asked the applicant if he had been involved in any activities in Australia which might cause him problems if he returned to Pakistan. He said that he watched people on YouTube speaking about religion, but he had not joined any groups or engaged in any activities likely to cause him problems in Pakistan.
117. I asked the applicant what he believed would happen to him if he returned to his local area and did not practise his religion. He said that Shi’a people would not want to associate with him and he might be accused of blasphemy, particularly if he did not follow one of the local religious leaders or Saeeds. Saeeds play a very important role in the area and everyone is expected to establish a close association with one of them.
118. I asked if the applicant feared that he would be harmed by anyone apart from the Taliban or Sunni people if he returned to Pakistan. He said that he believed he would be picked up at the airport by the equivalent of the FBI and ask why he had applied for protection in Australia without permission. I observed that there appeared to be no reason to suppose that the government of Pakistan would know he had applied for protection in Australia and that it was not my understanding that the Pakistani authorities would have an adverse interest in someone who had never been involved in politics, never committed a crime and had left the country legally merely because he had resided in Australia. He said that he would definitely be picked up at the airport and extorted for money because he would not have a passport, but he would be allowed to enter if he paid a bribe.
119. I advised the applicant that it was my understanding that Pakistani citizens could obtain a passport in Australia. He said that this would not be possible for him as he only had photocopies of his documents, not originals. In addition, he had promised not to contact the Pakistani Embassy while in Australia. I advised him that I had great difficulty accepting that anyone in authority in Australia would have told him not to contact the embassy. He said that he was not suggesting this and appeared to state that he had decided or promised that he would not contact the Embassy when he was in detention after arriving in Australia.
120. I noted that the applicant had claimed that he would not be able to practise the Shi’a faith outside his local area if he returned to Pakistan and advised him that evidence from DFAT and others indicated that this was not generally the case. He said that it was possible to practise in Shi’a areas, but not where the majority of the people were Sunni.
121. I noted that the applicant had previously stated that he would have problems if he returned to Pakistan because he had spent time in Australia and asked what these problems would be. He said Sunni people would harm him because they would believe he was a kaffir (non-believer). I advised him that advice from DFAT said that many Pakistanis lived and worked abroad including in western countries and they did not generally face problems on return because of this. He said that things were different in the tribal areas. I asked if he feared that he would have problems with the Shi’a people in his local area because of his time in Australia. He said that the Shi’a people in his area would not harm him because he had been abroad, but he would face problems if he did not practise his religion.
122. I noted that the applicant had also suggested that he would have problems because of his Pashtun ethnicity. He said that while he would not have problems in his local area, he would have problems in areas such as Punjab and Sindh.
123. I noted that the applicant had previously stated that he feared he would be harmed because he opposed the Taliban. I observed that it seemed likely that all Shi’as opposed the Taliban and that the Taliban would view all Shi’as as opponents, which suggested that there was no real or practical difference between this claim and the claim that he would be at risk of harm merely because he is a Shi’a. The applicant appeared not to understand. Neither he nor his representative raised any claims which suggested that he faced a greater risk of harm than other Shi’a Pakistanis because he would be seen as an opponent of the Taliban.
124. I noted that the applicant had stated that his fears related to harm from groups such as the Taliban and the Sunni community in general. I noted he did not appear to fear harm in his local area where the entire population was Shi’a, but he feared that he would face harm if he travelled to other areas. I advised him that advice from DFAT and others indicated that there had been significant improvements throughout most of the former FATA region since about 2013 or 2014. I also noted that the evidence suggested that most terrorist attacks in the area occurred in North and South Waziristan districts and Bajaur and that the main targets of these attacks were security and government officials. I noted that while there appeared to have been some increase in violence in the FATA in recent years, this did not appear to have been the case in the Orakzai region. I acknowledged that this did not mean that there were no problems in the area but advised him that in my view the evidence did not appear to suggest that he was likely to be harmed as a result of sectarian or terrorist violence if he returned to his home in Orakzai.
125. The applicant said that there were no Shi’a in Waziristan but there were Shi’a in Orakzai, and they were always at risk of harm from Sunnis. He added that people in the area sometimes went missing and if he left his area, the Sunnis would recognise him as Shi’a and he might be targeted and go missing. He said that in the past he might have been able to find work in places like Kohat, but if he went outside his immediate area and attempted to travel or find work elsewhere in Orakzai he would be at risk of harm from the local Sunni population.
126. I advised the applicant that if I decided that he would be at risk of serious harm in Orakzai, then I would need to consider whether he could safely and reasonably relocate to another part of Pakistan. I advised him that it was my understanding that up to 20 per cent of the population of Pakistan are Shi’as and there are a number of cities with large populations of Shi’a Muslims where he could safely live. I advised him that it was my understanding that Shi’a people from Orakzai have relocated to Peshawar and Karachi and there are also significant Shi’a populations in Lahore, Rawalpindi and Islamabad. I observed that while there had sometimes been problems for some Shi’as in those cities, in my view the evidence did not suggest that the problems were such that all the Shi’as faced a real chance of harm because of their religion. I also observed that there did not appear to be any reason to suppose that he would be more at risk of harm than other Shi’a who relocated to these areas.
127. The applicant said that wherever he went he would be asked his religion and where he came from so people would know his religion and background. He said that only displaced Sunnis went to Peshawar and if he went to Punjab or Sindh, he would face problems because of his Pashtun ethnicity. I advised him that I accepted that people would likely be aware of his religion and ethnicity, but the country information did not suggest that he would face a real chance of experiencing serious harm for those reasons throughout Pakistan. The applicant maintained that he would not be safe in any Sunni majority area because of his religion.
128. I noted that the applicant had previously claimed that he could not relocate because he would be separated from his family and asked why they could not relocate with him. He said that his family would be at risk of harm because they are Shi’a. In addition, they did not want to move because they would not speak the local language. I asked if he would bring his family to Australia if that was possible. He said that he would. I observed that they would have language and cultural problems in Australia. He said that these difficulties were just one reason they could not relocate with him. The main problem was that they would be at risk of harm.

[21] Pakistan restricts screening of films from India - Los Angeles Times (latimes.com), 20 November 2013; Screen Bollywood movies in Pakistan, director says ahead of ‘Ishrat Made in China’ release (arabnews.pk) 2 March 2022
190. According to DFAT’s 2022 report, women’s participation in society in Pakistan can be heavily curtailed depending on their social circumstances. While women in cities such as Lahore, Karachi and Islamabad often enjoy relative freedom, conservative rural communities are much stricter. In these circumstances, I accept that the applicant may have had inappropriate relationships or socialised with women in Australia in a manner which might be unacceptable in Pakistan. However, DFAT’s report and other evidence indicates that it is women who are likely to face honour killings or other punishment for inappropriate behaviour or relationships. For example, a media article published on 23 November 2017 quotes a chief justice of the Federal Shariat Court in Pakistan who observed that 1,600 women had been accused of adultery with not a single male accused.[22]
[22] ‘Iqbal’s dream of a state with social and economic justice has been shattered’ (thenews.com.pk)
191. I am not satisfied that there is a real chance that the applicant will face a real chance of suffering serious or significant harm on return to Pakistan because of his friendships or relationships with women in Australia.
192. Furthermore, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm as a result of establishing friendships or relationships with women in Pakistan. In the first place, there is no suggestion that he is currently in an inappropriate relationship with a woman in Pakistan and the possibility that he might form one in future or socialise with women in an inappropriate manner is nothing more than speculation. Secondly, as noted above, it is women who generally face problems for inappropriate relationships with men.
193. After considering all of the evidence I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm on return to Pakistan because he has become more liberal while living in Australia. November
Membership of the particular social group of failed asylum seekers who have resided in a western country
194. I have some difficulty accepting that failed asylum seekers or people who have resided in western countries constitute a particular social group in Pakistan. However, even if I accept that he is a member of one or both of these groups, I am not satisfied that he faces a real chance of experiencing serous or significant harm for those reasons.
195. In submissions to the first Tribunal, the applicant claimed extremist groups were likely to view him as a supporter of the west and therefore as an opponent because he had resided in Australia and would seek to harm him for that reason. In oral submissions to the second Tribunal, he said that Shi’a and Sunni people in his local area hate people who had lived in the west because they were believed to have adopted western ideas and he would therefore be at risk of harm if he returned to Pakistan. In written submissions to the current Tribunal, he said that the fact that he had spent time in Australia and applied for protection would be widely known by people in his local area in Pakistan and this would cause problems on return.
196. During the hearing on 18 August 2022, I asked the applicant what he feared would happen to him as a result of the time he has resided in Australia. He said that he would not have problems with Shi’a people in his local area, but Sunni people would see him as a non-believer and would harm him because of this. I advised him that it was my understanding that many Pakistanis lived and worked abroad including in western countries and they did not generally face problems on return because of this. He said that things were different in the tribal areas.
197. I accept that people in the applicant’s local area are likely to be aware that he has been living in Australia and may assume that he has sought asylum. Such applications by people from the former FATA region are not uncommon. I also accept that Sunni extremists in the former FATA region may be more suspicious of people who have resided in the west than those living elsewhere in the country given political and religious views. However, as noted above, DFAT advises that returnees and failed asylum seekers do not generally face significant problems for these reasons on return to Pakistan. There is nothing in the other evidence before me which suggests that Pakistanis returning from western countries to areas outside KP are generally at risk of serious or significant harm on return to Pakistan because of their time abroad or because they are suspected of adopting western views or values or abandoning their faith or because they are suspected of seeking asylum.
198. After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm for reasons of his membership of the particular social groups of failed asylum seekers and people who have resided in the west if he returns to Pakistan.
Political opinion
199. The applicant claims that he would be at risk of harm in Pakistan because he would be viewed as an opponent by the Taliban and Shi’a militants and because he would be viewed as pro-western because he has resided in Australia. As discussed above, I do not accept that the applicant faces a real chance of suffering serious or significant harm in Pakistan for any of these reasons.
200. When asked about problems he might face as a result of his political opinion by the second Tribunal, he said that candidates in local elections harmed people who did not vote for them. However, he did not suggest that he had been threatened or harmed at any time for that reason. DFAT’s 2022 report notes that political violence has been a problem in Pakistan in the past, particularly in Karachi, but notes that the extent of the problem has reduced in recent years. There is nothing in the report or any other evidence before me which suggests that the applicant faces a real chance of experiencing serious or significant harm anywhere in Pakistan in the reasonably foreseeable future as a result of failing to support a candidate in an election.
201. There is no suggestion that applicant has been involved with political groups or participated in any political activities in Pakistan or Australia or that he fears he will be imputed with political opinions that would cause him problems on return to Pakistan other than those already discussed above.
202. After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Pakistan for reasons of political opinion.
Fear of the Pakistani government
203. The applicant claims that he would be at risk of harm from the government if he returns to Pakistan.
204. In his initial application to the Department, he said that his children feared going to school because of the activities of security forces who conducted searches as part of their campaign against local terrorists. While the evidence does not suggest that security forces have targeted Shi’a in Orakzai at any time, the applicant’s description accords with other evidence regarding the general situation in Orakzai in about 2008 and I accept that the applicant’s family were fearful of the security forces at that time. However, there is nothing in the evidence before me which suggest that the applicant would be of interest to the Pakistani security forces for any reason or that there is a real chance that he would be at risk of harm as a result of their activities or campaigns against extremist groups or others if he returns to Pakistan within the reasonably foreseeable future and resides outside KP.
205. The applicant has also claimed that he is at risk of being charged with blasphemy by the Pakistani authorities. As discussed above, blasphemy charges are often the result of accusations or pressure from by religious extremists, not actions initiated by the authorities. As also discussed above, there is nothing in the evidence before me which suggests that the applicant faces a real chance of being accused of or charged with blasphemy by the Pakistani authorities or anyone else. I am not satisfied that there is a real chance that he would experience serious or significant harm as a result of being charged with blasphemy if he returned to Pakistan and resided outside KP.
206. The applicant has also claimed that he would not be able to obtain a passport in Australia and he would face problems with authorities on arrival in Pakistan because of this and because he has applied for protection in Australia. His evidence regarding these problems was somewhat confused. He claimed that he would not be able to obtain a passport because he lacked an NIC and other relevant documents, but later appeared to suggest that he had decided that he would not approach the Pakistani Embassy in Australia to seek a passport.
207. According to DFAT’s 2022 report Pakistani diplomatic missions in Australia and elsewhere can issue passports to Pakistani citizens. Generally, the only supporting document which is required is an NIC. The report also states that Pakistanis living abroad who have previously held an NIC can apply online to obtain a new card. The applicant has clearly held an NIC in the past as he provided a copy in support of his initial application. In these circumstances I do not accept that he would be unable to obtain a new passport from the Pakistan authorities in Australia. In reaching this conclusion, I have noted his apparent reluctance to approach the Pakistani Embassy. However, there is no credible evidence before me which suggests that he has any reason to fear the Pakistani authorities in Australia and therefore there is no reason why he would be unable to obtain a new passport to enable him to return to Pakistan.
208. The applicant claims that the government would be aware that he had applied for protection in Australia and that he would be detained and questioned at the airport because of this. I advised him that there appeared to be no reason to believe that the Pakistani authorities would be aware that he had applied for protection and that I was unaware of any evidence which suggested that the Pakistani authorities would have an adverse interest in him for this or any other reason if he returned to Pakistan. He did not dispute my observations but said that he would have to pay a bribe in order to enter the country.
209. According to DFAT, corruption is a significant problem in Pakistan and it is not uncommon for public servants to demand bribes. I accept that the applicant may be extorted for a bribe to facilitate his entry into Pakistan. However, I do not accept this is sufficient to constitute serious or significant harm or that the applicant would face other problems on arrival in Pakistan. According to DFAT, Pakistanis who return involuntarily or on temporary documents may be questioned on arrival, but those who leave the county on valid travel documents and return voluntarily with a valid passport are processed in the same manner as any other returning citizen and are unlikely to experience any problems unless they are of interest to the authorities for some other reason. There is nothing in the evidence before me which suggests that the applicant departed Pakistan illegally, that he would be unable to obtain a valid passport to return to Pakistan or that he is or ever was of adverse interest to the Pakistani authorities. In these circumstances, I am not satisfied that there is a real chance that the applicant would face serious or significant harm from the Pakistani authorities for any reason on arrival to Pakistan.
Conclusions
210. After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious or significant harm for any of the reasons claimed if he returns to his homeland in the reasonably foreseeable future and resides outside KP.
Is it reasonable to expect the applicant to relocate on return to Pakistan to avoid serious or significant harm in PK?
211. As discussed above, while I accept that the applicant faces a real chance of experiencing serious or significant harm for reasons of religion if he returns to Pakistan and resides in KP, I am not satisfied that he faces a real chance of suffering such harm throughout Pakistan for any of the reasons he has claimed. Furthermore, I consider that it would be reasonable in the sense of practicable in all the circumstances for him to relocate within Pakistan. I note that he has family members residing in Pakistan and is in contact with members of the Pakistan community in Australia and is no doubt better placed than I am to decide which city or area in Pakistan would provide him with the most secure future and best opportunities. That said, according to DFAT, there are significant Shi’a communities in a number of cities including Lahore, Rawalpindi and Islamabad and these are cities where the applicant could reside.
The applicant’s claims regarding relocation
212. The applicant has claimed at different times that even if he does not face a real chance of suffering serious or significant harm if he resides in an appropriate location outside KP, it would be unreasonable to expect him to because has never lived anywhere apart from Orakzai in Pakistan, because he lacks the skills and networks that he would need to obtain employment and support his family, that he would be deprived of his social, familial and cultural connections which would cause him psychological distress, and that his close family ties means he would be compelled to visit his family in Orakzai which would place him at risk of harm while travelling.
Lack of family and community networks and support
213. I accept that the applicant has never resided outside Orakzai and may not have connections to extended family or people from his local community in other parts of Pakistan. However, there are large Shi’a communities in many urban centres in Pakistan serviced by Shi’a mosques, community centres and networks. According to the applicant, he has established relationships within the Shi’a community in Australia and it seems likely that he could and would develop support networks within these communities if he took up residence outside KP in Pakistan. I acknowledge that they may not all be from his tribe or ethnic background, but there is nothing in the evidence which suggests to me that he would not be accepted by the broader Shi’a community.
214. I do not accept that it would be unreasonable to expect the applicant to relocate inside Pakistan because he does not have an established community or kinship network outside Orakzai.
Ability to find employment and earn sufficient income
215. It has been submitted that the applicant would be unable to find work or earn a livelihood outside KP because he lacks supportive networks in other areas and because he has limited work skills and experience. I do not accept this claim. First and most significantly, he told me and the second Tribunal that he was adaptable and would have no problem finding work outside the Orakzai area. Secondly, he is reasonably well educated and in addition to Pashto speaks Urdu and English, the national languages of Pakistan. His ability to find work and earn a livelihood in [Country 2] and Australia for the last 24 years suggests that he is resourceful and able to make his way in areas with different languages and cultures. Finally, as discussed above, while he may not have established networks outside Orakzai, I believe he would be able to seek and obtain some assistance from Shi’a communities elsewhere.
216. It has also been submitted that even if the applicant finds work, he would not be able to earn enough to find accommodation or to support his family. While it is no doubt true that he would not earn as much in Pakistan as he would in Australia, on the evidence currently before me I am not satisfied that he would be unable to earn sufficient income to find accommodation and support himself and his family within the Pakistani context.
217. I do not accept that it would be unreasonable to expect the applicant to relocate inside Pakistan because he would be unable to find employment and therefore unable to support his family.
Social, familial and cultural connections
218. The applicant submits that it would be unreasonable to expect him to relocate to a location outside KP in Pakistan because to do so would be to deprive him of his social, familial and cultural connections, which would damage his relationships and cause him psychological distress.
219. The applicant has lived away from his family in [Location 2] for some 24 years and while I accept that it must been difficult for him to be apart from his family for so long, there is nothing in the evidence which suggests this has caused him such psychological suffering or harm that it would be unreasonable to expect him to relocate to somewhere outside KP on return to Pakistan. In any event, he has the option of bringing his family to live with him outside KP should he and they wish to do so. When this possibility was discussed at the hearing, he said that they would not want to relocate because they would be in danger and because there would be language and cultural differences. For the reasons discussed above in relation to the applicant, I do not accept that his family would be in danger if they resided with him in an appropriate location outside KP. With regard to issues such as culture and language differences, the applicant did not suggest that his family had any concerns about living in Australia, where they would no doubt encounter even greater cultural differences. Finally, I note that according to the applicant, his children would need to relocate to continue their education beyond a certain age, which suggests they would not be greatly concerned about these issues and would be likely leave the local area in future no matter where he lives.
220. With regard to the issue of the applicant’s social and cultural connections, there is nothing in the evidence which suggests that the applicant has suffered psychological distress because he has been living away from his place of origin and thus deprived of his social and cultural connections, and thus no reason to suppose that he would suffer such significant psychological distress for that reason if he returned to Pakistan and lived somewhere other than KP.
221. I do not accept that it would be unreasonable to expect the applicant to relocate inside Pakistan because to do so would be to deprive him of his social, familial and cultural connections which would damage his relationships and cause him psychological distress.
Risks associated with travel inside Pakistan
222. The applicant claims that he would be at risk of harm if he returned to Pakistan because even if he resides outside KP he would visit his family who reside in [Location 2], which would mean passing through areas where he would be at risk of attack by the Taliban or other extremist groups.
223. I accept that the applicant would initially return to [Location 2] to visit his family if he returned to Pakistan. However, according to his evidence he would be safe in [Location 2] and as noted above, Orakzai is currently relevantly peaceful, and while roads in KP were sometimes unsafe during the height of the violence prior to 2014, most of the current violence in KP is taking place in Waziristan close to the border with Afghanistan, not in the area which the applicant would need to traverse to visit his family if he resided elsewhere in Pakistan. In these circumstances, I do not accept the applicant faces a real chance of being attacked when travelling to [Location 2] because of his religion or for any reason if he visits his family when he arrives in the country.

224. I also accept that the applicant would wish to visit his wife and children in [Location 2] if they remained there while he resided elsewhere. However, he has the option of arranging for his family to join him outside KP once he is settled, which would remove the need for him to travel.
Other issues
225. The applicant submitted that it would be unreasonable to expect him to relocate in Pakistan because he would be unable to repay debts he has incurred in Australia. While it may well be more difficult for the applicant to repay his debts as he would likely be earning less money, in my view it has no relation to the issue of whether it would be reasonable to expect him to relocate to avoid serious or significant harm in Pakistan.
CONCLUSIONS
226. For the reasons set out above, I am 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).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have 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).
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 criteria in s 36(2).
DECISION

229. The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
Member

[2023] AATA 737

6 February 2023

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