1838192 (Refugee)
[2019] AATA 6555
•31 July 2019
1838192 (Refugee) [2019] AATA 6555 (31 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1838192
COUNTRY OF REFERENCE: Pakistan
MEMBER:Brendan Darcy
DATE:31 July 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
STATEMENT MADE ON 31 JULY 2019 AT 2:25PM
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – ethnicity – Turi Pashtun – religion – Shia Muslim – fears persecution by Taliban – real chance of serious harm – unreasonable to relocate within home country – state protection severely compromised – limited education – credibility issues – inconsistent evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 8 November 2012 and the delegate refused to grant the visa on 3 September 2012.
The applicant applied to the former Migration Review Tribunal – Refugee Review Tribunal for review (case number 1313370) and on 24 January 2014 the delegate’s decision to refuse the visa application was affirmed by the Tribunal (differently constituted).
The applicant sought review by the Federal Circuit Court of Australia (FCCA) and on 31 October 2017 his application was dismissed by the Court.
The applicant sought review by the Federal Court of Australia and on 6 December 2018 the first Tribunal’s decision was set aside by the Court. A consent order made on that date indicates the Tribunal fell into jurisdictional error regarding findings about relocation.
The applicant appeared before the Tribunal on 30 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS FOR CONSIDERATION
For the following reasons, the Tribunal has concluded that the matter be remitted for reconsideration.
Background
The applicant claimed to be born on 20 February 1989 in [village 1], Parachinar in Kurram Agency in Pakistan.
The applicant claims to be a citizen of Pakistan. He claims to be an ethnic Pashtun and a follower of the Shia Muslim religion.
The applicant claimed on Form 866B that he was unmarried and his family consisted of his mother and father and [a number of] siblings. On 23 July 2019 the applicant’s representative emailed the Tribunal claiming the applicant is now married to [a] woman from his home village of [Village 1], and that his [sibling] [was] killed in Rawalpindi in 2018.[1]
The applicant arrived on Christmas Island [August] 2012 as an unauthorised maritime arrival. Since his arrival in Australia the applicant has held [numerous] Bridging E visas (WE-050), the most recent of which ceased on 12 August 2015. The applicant has not been granted any further visas.
[1] AAT file 1838192 f.49
The applicant’s claims were detailed in a statutory declaration dated 2 November 2012 accompanying Form 866C.[2] His claims may be summarised as follows:
·In Pakistan his life was in danger because the Taliban are targeting Shias;
·In 2011 he was kidnapped by the Taliban while travelling to Peshawar;
·As a member of the Turi tribe and a Shia he fears harm from the Pashtun Sunni community; and
·The authorities in Pakistan cannot protect him because they cannot control the Taliban.
[2] Department file [specified]
The applicant’s following identity documents were provided to the Department:
·ID card;[3]
·Pakistani driving licence;[4]
·Provisional certificate 2009 [College];[5]
·Secondary school [certificate];[6]
·Secondary school [certificate];[7]
·Secondary school [certificate];[8]
·Copy of prior Pakistani passport;[9]
·Pakistani character certificate;[10]
·Pakistani police clearance certificate;[11] and
·Domicile certificate.[12]
[3] Department file [specified]
[4] Department file [specified]
[5] Department file [specified]
[6] Department file [specified]
[7] Department file [specified]
[8] Department file [specified]
[9] Department file [specified]
[10] Department file [specified]
[11] Department file [specified]
[12] Department file [specified]
A copy of the delegate’s decision was submitted to the Tribunal. The delegate accepted that the applicant is a Pashtun, a Turi tribesman from Kurram Agency and a Shia Muslim. The delegate did not accept that the applicant was kidnapped and detained by the Taliban in 2011.[13] While accepting that there is an ongoing risk of harm to the applicant on the basis of his religion as a Shia Muslim in the Kurram Agency, FATA (Federally Administered Tribal Areas) and that he could not access adequate state protection with FATA,[14] the delegate was satisfied that the applicant could relocate within Pakistan and concluded that he is not owed protection obligations.[15] The delegate found that the applicant’s claims that he would be persecuted for his Turi race or for departing Pakistan to be supported.[16]
[13] AAT file 1313370 f.23
[14] AAT file 1313370 f.19
[15] AAT file 1313370 f.14-13
[16] AAT file 1313370 f.19
Material provided to the first Tribunal Member (case number 1313370) included:
·A letter dated 16 December 2013 from the [named Association] confirming that the applicant is a Shia Muslim from Parachinar, Pakistan and that he attends the organisation’s community events and religious practice.[17]
[17] AAT file 1313370 f.102
·Copy of pages from the applicant’s Pakistani [passport].[18]
[18] AAT file 1313370 f.100
·A submission by the applicant’s representative dated 23 October 2013.[19] The applicant’s claims may be summarized as follows:
[19] AAT file 1313370 f.87
a)The applicant was born in [Village 1] in the Kurram Agency, Pakistan, his ethnicity is Pashtun and his religion is Muslim Shia;[20]
[20] AAT file 1313370 f. 87
b)He fears persecution on the basis of his religion and membership of several particular social groups, namely as a ‘failed asylum seeker’ or ‘returnee from a Western Country’, a Turi Shia, and a Shia from the Kurram Agency, Pakistan;[21]
[21] AAT file 1313370 f.87
c)Shia Muslims are regularly identified as targets by Sunni Muslim extremists and fundamentalist groups in Pakistan;[22]
d)The applicant is identifiable as a Shia based on his area of origin (listed on his identity documents) and the way he prays;[23]
e)The applicant was kidnapped by the Taliban in 2011 while travelling from Parachinar to Peshawar;[24]
f)Returnees from the West are regarded by some Pakistanis as traitors and viewed with disdain by the Taliban;[25]
g)Relocation within Pakistan is not a viable option for the applicant because: movement in and around the applicant’s area of origin is difficult; the targeting of religious minorities is widespread throughout the country; and, in many cities, Shias are not able to practice their faith;[26]
h)The State can be viewed as failing to prevent the actions of extremist groups and in some instances as supporting them;[27]
i)The authorities in Pakistan, which are predisposed to corruption and unable to uphold the rule of law, are not able to provide protection to the applicant;[28]
j)The Pakistan Government is associated with the killings of Shias within Pakistan;[29]
k)The applicant’s cousin and another relative were killed as a result of attacks by extremist groups;[30] and
l)Relocation would not be reasonable because: the applicant is a young man and has no family in any other area of Pakistan to support his relocation; his lack of work experience will make finding employment difficult; and he has no access to amenities in another area of Pakistan. It is further claimed that his family cannot financially assist him to relocate, his travel experience is limited to Peshawar and the applicant cannot live safely in a Sunni-dominated area.[31]
[22] AAT file 1313370 f.87
[23] AAT file 1313370 f.87
[24] AAT file 1313370 f.87
[25] AAT file 1313370 f.86
[26] AAT file 1313370 f.84-83; 80
[27] AAT file 1313370 f.80
[28] AAT file 1313370 f.80
[29] AAT file 1313370 f.72
[30] AAT file 1313370 f.80
[31] AAT file 1313370 f.80
Material provided to the present Tribunal Member included:
·An email dated 23 July 2019 by the applicant’s representative claiming that the applicant’s marriage, the applicant’s [sibling]’s death and the applicant’s mental health issues are relevant to assessing whether it is reasonable for him to relocate to another part of Pakistan.[32]
[32] AAT file 1838192 f.49
Country information: Pakistan
Ethnicity: Turis
Relevant to this case is the security situation for members of the Turi tribe. The DFAT Country information report on Pakistan dated 20 February 2019 states the following:
Turis
The Turi tribe is a Shi’a Pashtun tribe of around 500,000 people. Turis are not generally distinguishable from other Pashtuns by appearance, but are identifiable by tribal names, accents, and residency in known Turi areas. Most Turis live in Parachinar, lower and upper Kurram Agency, Orakzai, DI Khan, Kohat, and Hangu. Concentration of Turis in small geographic areas, particularly in and around Parachinar and Kurram Agency, renders Turi communities vulnerable to attack.
The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a—especially in Parachinar, rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan. Between 2008 and 2014, Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith (see Shi’a). Militants frequently stopped and killed Turis travelling on roads. […]
[…] […]
While military operations have improved the security situation in Parachinar and Kurram Agency, they have also restricted freedom of movement and limited the community’s access to essential services and trade opportunities. Military operations have also displaced many Turis, and some of the many who have since returned to their homes have faced extensive damage to property and crops.
By February 2018, the Turi community estimated 40 per cent of military fencing in Kurram was complete, decreasing border permeability. Continuing security measures and tighter Afghanistan-Pakistan border controls also restrict movement. Turis also advise the military implements a 20 to 30 square kilometre area red zone for Parachinar, and a second, smaller red zone inside the outer red zone, in which markets and schools are located. Security forces have issued cards to access the red zones, which can be obtained by residents on presentation of identity documents (CNICs or passports).
While minorities feel more protected, according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence (see Shi'a) and greater presence of the Taliban and Al Qaeda. Turis face some risk of violence while travelling by road to Iran and Iraq on religious pilgrimage, although DFAT understands the government provides security assistance for such journeys (see Shi’a). Turis also express concern that the civil war in Syria was spilling over into Kurram and that ISIL, based in Nangarhar, is getting stronger.
Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes. Turis claim a Turi child died at a North Waziristan checkpoint because security officials refused the family’s request to cross to visit a hospital. DFAT is unable to verify this claim.
Notwithstanding these difficulties, global Turi Shi’a networks and donation systems can assist Turis to relocate to other cities in Pakistan. Such support often relies on a senior male Turi advocate, limiting access for poorer members of the community, especially women and children. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of language barriers, notably Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi.
The Parachinar government provides PKR 3 million (AUD 33,000) to families of government officials or military members killed in the line of duty, and PKR 300,000 (AUD 3,300) for civilians killed in the course of military operations. Members of parliament from the former FATA can face significant cultural pressure to provide financial assistance to constituents. Local sources say five orphanages in Parachinar are accessible to Turis and other ethnic and religious minorities.
Preferred relocation options for Turis are Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of the language barriers they may face. Relocation to Khyber Pakhtunkhwa is not viable, as Turis are discriminated against, face security threats, do not have adequate access to services, and would likely be forced to sell assets. If forced to move to Khyber Pakhtunkhwa, Turis prefer to live in gated communities such as the Defence House Authority, however they will face security concerns and remain vulnerable. Abbottabad is considered slightly more secure within Khyber Pakhtunkhwa, but remains unsuitable from a risk perspective.
DFAT assesses that Turis a face similar risk of official discrimination as other Pashtuns based on ethnicity (see Pashtuns), and no additional risk of official discrimination based on their religion (see Shi’a).
Turis tend to live in enclaves with other Turis, mitigating societal discrimination. Outside these areas, Turis face a moderate risk of societal discrimination based on their Shi’a religion (see Shi’a) and historical animosity with the Bangash tribe.
DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.
The International Crisis Group recently published the following report about the situation in areas formerly within FATA and now part of KPK province, parts of which I have highlighted due to their relevance:
FATA’s merger with Khyber Pakhtunkhwa followed years of military operations against Tehreek-e-Taliban (TTP, Taliban Movement of Pakistan) militants. Those operations broke TTP’s hold over most of the tribal belt but also displaced millions of residents, destroyed homes and ruined livelihoods. Security in those areas has improved but remains fragile. Afghan insurgents, including Afghan Taliban factions and allied militants, maintain sanctuaries in FATA from which they conduct operations in Afghanistan. Human rights abuses, particularly enforced disappearances, continue, and the military still controls virtually every aspect of public life…
Even critics of the military operations recognise that they have disrupted TTP networks in FATA.
The tribal areas are no longer the hub for transnational jihadists that they were some years ago, when militants from across the world rubbed shoulders with their Pakistani counterparts in training camps.
Yet the military has neither killed nor captured all major TTP leaders. Some relocated to Afghanistan. Others moved to nearby Khyber Pakhtunkhwa districts, such as Tank and Dera Ismail Khan, and revived their networks there. These areas have seen increased extortion of local businesses, killing of leaders seen as anti-TTP and other perceived opponents, and kidnapping for ransom.
Other TTP factions with close ties to the Afghan Taliban, such as those led by Gul Bahadur and Sadiq Noor, appear to have moved their militias from North to South Waziristan.
Well-informed sources contend that Afghan militants, too, first relocated to other parts of the tribal belt, such as Kurram, whence they had easy access to Afghanistan’s Khost province, and have now returned to sanctuaries in North Waziristan.
“The Haqqani network [an Afghan Taliban faction long based in FATA] owns property worth billions of rupees in North Waziristan”, said Latif Afridi, a senior lawyer and Awami National Party leader from Khyber. “They started there and are still there. They only temporarily relocated to FATA’s Kurram and Hangu [an adjoining Khyber Pakhtunkhwa district]”.
To consolidate control, the military has relied on “peace committees”. In reality, these are pro-state militias, comprising what many FATA activists refer to as “local thugs”, that have fuelled conflict … While the military disbanded some of these militias due to local opposition, those that remain continue to target opponents and indulge in criminal activity, including drug and arms smuggling, with few restrictions.
That militant networks have revived is evident in the higher rates of violence and casualties in the past year. A FATA-focused NGO noted a 16 per cent rise in militant attacks and a 37 per cent rise in the number of casualties in 2017, compared to the year before. Many such attacks have taken place in tribal agencies that the military had supposedly rid of militants, such as Mohmand and Bajaur. Kurram, with its large Shiite population, was particularly volatile, with at least 115 people killed in three attacks in the first six months of 2017 – two of them targeting Shiites.
Attacks have continued this year: in January, five civilians were killed in a bombing in Kurram; in February, a military convoy was attacked in North Waziristan; the same month in Bajaur, an anti-Taliban leader was killed. Militants have also resumed targeting girls’ schools and threatening families who send their daughters to school.[33]
[33] “Shaping a New Peace in Pakistan’s Tribal Areas,” International Crisis Group, Briefing 150 / Asia, 20 August 2018,
Non-disclosure notices
The Department file was not subject to a non-disclosure notice.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicant claims to be a national of the Islamic Republic of Pakistan (Pakistan). The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. Based on the available evidence, all of which is on file and with no evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Credibility Findings
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.) In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
In this decision, the Tribunal has made a small number of adverse credibility findings. Those findings are outlined below. Nevertheless, these findings are limited and have not distracted it from assessing the applicant’s claims that he is owed Australia’s protection based on his ethnicity and his religion when evaluating the relevant country information.
Real chance of serious harm in the applicant’s home area
It is accepted that the applicant is a Turi Pashtun who belongs to the Shia religion who was born in [village 1], Parachinar in the Kurram Agency in Pakistan. At the time of the applicant’s departure, Kurram Agency was part of Pakistan’s Federally Administered Tribunal Areas (FATA). Since 2018, Kurram Agency is now part a district in Kohat division of which is federally administered and now known as Khyber Pakhtunkhwa. [34]
[34] DFAT Country Information Report Pakistan, 20 February 2019: The Federal Government administers seven tribal districts (Bajaur, Khyber, Mohmand, Kurram, Orakzai, South and North Waziristan) and six frontier regions. Collectively these 13 administrative units are known as the former FATA (now Khyber Pakhtunkhwa).
Geographically the Kurram district is in north-western Pakistan sharing Pakistan’s international border with Afghanistan. Most of the population in Kurram district is Pashtun and the main religion in the district is Islam. Parachinar is the administrative headquarters of the Kurram valley. Pakistan and Afghan citizens are required to present their passports with valid visas for movement across the Pakistan-Afghan border. The length of the border and the rugged terrain mean that, in practice, undocumented movement is common. Pakistan citizens of Shi’a-majority Kurram Agency have historically transited through Afghanistan to reach Khyber Pakhtunkhwa (Peshawar) to avoid militant groups in Kurram and Orakzai agencies. Such movement has become more difficult following the fencing of the border.[35]
[35] DFAT Country Information Report Pakistan, 20 February 2019, 5.35, page 66
In this decision, the Tribunal accepts Kurram district is the applicant’s home area and Khyber Pakhtunkhwa is his home province.
Based on the available evidence and noting that no earlier decisions about this protection application have doubted it, the Tribunal further accepts the applicant belongs to the Turi tribespeople who generally reside in the Kohar division of Khyber Pakhtunkhwa. It is further accepted that the applicant belongs to a large family whose parents and siblings mostly reside in Kurram district. It is also accepted that he applicant has recently married a Pakistani national but he does not have any children, biological or otherwise.
The applicant claimed that he departed Pakistan because the Tehreek-e-Taliban Pakistan (TTP) was targeting Shia Muslims, not only in his home area of Kurram Agency. Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018.[36] The UN listed Jamaat ul Ahrar (JuA), an autonomous faction of the TTP, as a terrorist group in 2017. JuA was involved in 15 terrorist attacks (all in Khyber Pakhtunkhwa), killing 11 and injuring 16 in 2018 (compared to 37, killing 123 and injuring 306 in 2017). JuA leadership reportedly has close ties to al-Qaeda. Smaller militant groups in Khyber Pakhtunkhwa and the former FATA, labelled the ‘local Taliban’ for their TTP sympathies, carried out 28 terrorist attacks in 2018 (compared to 29 in 2017). [37]
[36] DFAT Country Information Report Pakistan, 20 February 2019,.2.71, p.18
[37] DFAT Country Information Report Pakistan, 20 February 2019,.2.86, p.20
Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties. Shi’a continue to face a threat from anti-Shi’a militant groups, including Lashkar-e-Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus. [38]
[38] DFAT Country Information Report Pakistan, 20 February 2019, 3.99 p.36.
With regard to incidents of past harm, the applicant specifically claimed that he had been kidnapped by the Taliban in 2011 when he was in a convoy of [cars] travelling to Peshawar (the capital of Khyber [Pakhtunkhwa)]. The applicant claimed he and [others] were ambushed and then abducted to an unknown location. He further claimed that he as blindfolded and bound in a house or compound. During his abduction, the applicant had been struck, beaten and cut by the Taliban. He claimed the abduction lasted [a number of] days. The applicant eventually escaped and returned to Parachinar with the assistance of a kind woman assisting the applicant’s abductors. The applicant evaluated that the situation in other parts of Pakistan, such as Karachi and Islamabad, were dangerous for Turis and Shias, including himself.
Neither the delegate nor the previous Tribunal member accepted the applicant’s abduction and escape elements of his written claims. The delegate did not accept that the applicant had been kidnapped and detained by the Taliban in 2011, due to inconsistencies between the applicant’s entry interview, statement and evidence at the interview. The earlier Tribunal member regarded the escape were also highly improbable. A response that the applicant had difficulty understanding the questions at the entry interview was not accepted by the same member. The same member also put to the applicant adverse information and based on this and the applicant’s responses, the earlier Tribunal member considered that the applicant devised a story about being kidnapped to augment his application for protection, but that the details of the story have faltered in the telling and retelling of the claim.
In this decision, the Tribunal concurs with the credibility findings about the applicant’s fantastic claims about an abduction and escape in 2011 but finds that, given the levels of generalised violence and targeted extremist outrages against Shias and specifically Turi Pashtuns in and around 2011, this augmentation was understandable.
In the applicant’s case, the applicant has a significant number of family members living in Kurram district as residents of metropolitan Parachinar. It is noted that the applicant did not advance that those family members have experienced physical maltreatment or direct intimidation. Furthermore, the Tribunal does not accept the applicant’s highly improbable claim that he was abducted and harmed by the TTP whom he then fantastically, even ludicrously, escaped in 2011. The Tribunal considers that, given his family’s behaviour does not indicate any deep or urgent fears of persecution, whereby the family continues to reside in the Kurram District, the applicant does not have a well-founded fear of persecution for the reasons claimed.
Availability of State protection
However, the Tribunal accepts the applicant does hold genuine subjectively held fears in returning to the Kurram district and that his family members hold similar fears which restrict their mobility within Khyber Pakhtunkhwa.
Moreover, what is critical in this case is that the harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Pakistani authorities are weak and cannot protect him from that persecutory harm.
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
DFAT assesses that Shi’a in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA. [39] Between 2008 and 2014, Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith. Militants frequently stopped and killed Turis travelling on roads. A significant spike in profiling and targeted killings occurred between 2009 and 2014 along the Tall-Parachinar road, which links Kurram Agency and Peshawar.[40]
[39] DFAT Country Information Report Pakistan, 20 February 2019, 3.111, page 38.
[40] DFAT Country Information Report Pakistan, 20 February 2019, 3.14, page 25.
Deaths from terrorist attacks in Kurram Agency significantly increased in 2017. DFAT is aware of three attacks targeting Turis in Parachinar during the first six months of 2017, on the grounds of their Shi’a faith[41]:
· on 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar;
· on 31 March 2017 a suicide bomber attacked an imambargah in Parachinar; and
· on 24 June 2017 two devices detonated in a market in Parachinar.
[41] DFAT Country Information Report Pakistan, 20 February 2019, 3.15, page 26
The three attacks killed more than 120 people.
The more recent information before the Tribunal indicates that the security situation throughout Khyber Pakhtunkhwa, which includes the applicant’s home province of Khyber Pakhtunkhwa, remains dangerous and volatile, with continuing terrorist attacks being undertaken by militant groups with an openly anti-Shia agenda.
It is noted by the Tribunal that operations Zarb-e-Azb, Radd ul Fasaad and associated counter-terrorism activities significantly decreased the number and severity of attacks on Turis. Nevertheless, in the first quarter of 2018, the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children.[42] This ongoing risk is further illustrated by a November 2018 incident in which 31 people were killed in the Shia-dominated area of Orakzai in Khyber Pakhtunkhwa. This broke a relatively long lull in terrorist attacks in country.[43]
[42] DFAT Country Information Report Pakistan, 20 February 2019, 3.16, page 26
[43] ’31 dead as bomb rips through busy market in Orakzai’, The Express Tribune, 23 November 2018,
Although the applicant has not experienced serious or significant harm himself, the Tribunal has also placed significant weight on the DFAT assessment that Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups because of their Shi’a faith.
The Tribunal is satisfied that the country information reflects that that the Khyber Pakhtunkhwa province is still subject to unpredictable attacks on government, civilian, sectarian and military targets. The Tribunal further finds that the level of protection available to the applicant from the Pakistani authorities in Kurram Agency (and other Shia dominated areas of Khyber Pakhtunkhwa) does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds that, based on the country information, the applicant would not be able to avail himself of effective state protection against the harm he faces.
It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his ethnicity/race and religion if he returns to his home region in the Kurram district or any other part of the Khyber Pakhtunkhwa province in Pakistan, now or in the reasonably foreseeable future.
Is relocation of the applicant to other parts of Pakistan reasonable?
Having made the finding whether the applicant faces a real chance of serious harm in the applicant’s home area, the Tribunal has considered whether it is reasonable for the applicant to relocate to other parts of Pakistan.
Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. The principles discussed by the court in Randhawa v MIELGEA (1994) 52 FCR 437, per Black CJ at 440-1, require the Tribunal to determine whether he or she can, reasonably in all the circumstances, live safely and free from a risk of such harm by resettling and living in another part of his country.
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.
The Tribunal has considered the claim by the applicant that his [sibling], who graduated from a [degree] in Rawalpindi, had been killed in September 2018. This [sibling] had been earlier mentioned by the applicant, as outlined in the earlier Tribunal member’s decision in 2014, in which the applicant did not claim his [sibling] had experienced harm while living in Rawalpindi. On this occasion, the applicant invited the Tribunal to consider that fatal killing of his [sibling] lacked credibility. There was no mention of this death in his submitted psychology letter; there was no death certificate or other documentary evidence to support the claim. Neither was there any convincing reason provided as to the reasons he could not obtain such documentary evidence when death certificates are commonly provided by Pakistanis for other visa categories under review by the Tribunal. The applicant also contradicted himself when, on the one hand, the applicant said he had not asked his family members for details about the death and on the other hand, he said when he asked his [siblings] about the death they said they did not know any details. Again, the Tribunal finds it understandable that the applicant posited this uncorroborated claim as it appeared to augment the unreasonableness of him relocating within Pakistan. The Tribunal accordingly does not accept his [sibling] was killed in Rawalpindi in the recent past and has invited the Tribunal to consider that his [sibling] continues to reside outside of Kurram District.
DFAT comments that it has observed that Shias generally relocate with relative ease due to family and communal networks and that the higher expenses of living in cities such as Lahore and Islamabad are offset by higher wages, particularly for those with relevant skills, such as foreign language and computer skills. Although it appears the applicant has at least one family member living outside of Kurram District, the Tribunal accepts the applicant has limited education and no qualifications, making relocation risker than better skilled Turis.
In relation to the concerns expressed by the applicant that he would be perceived by militants to be wealthy and to be an imputed supporter of the west, as well as the information from DFAT that kidnapping is common in parts of Pakistan. Rangers and police have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years. While verifiable data remains unavailable, DFAT understands serious crime across Pakistan, especially in Karachi and downtown Peshawar, has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the NAP.[44]
[44] DFAT Country Information Report Pakistan, 20 February 2019, 2.98 and 2.99, pp 22-23.
In assessing the applicant’s claims in relation to this matter, the Tribunal had regard to a 2017 judgment of the Federal Circuit Court of Australia (FCCA) indicating that it is important to focus on the perception of militant groups in such circumstances rather than the reality of whether or not a potential kidnapping victim was wealthy.[45] In this regard, notwithstanding DFAT’s assessment that persons who departed Pakistan legally are not subject to additional risk of violence on the basis of having spent time in western countries, the Tribunal considers that, in the particular circumstances of this case where the applicant is a Turi Shia from Kurram district, it is relevant that his having lived in Australia for over seven years since his arrival in 2012 may become known on his return to Pakistan (including as he is dealing with the complexities of relocating, such as changing his place of residence status, seeking accommodation and finding employment) because it could increase the risk that he would be perceived to be wealthy, thereby increasing the risk of abduction or extortion over and above that faced by other Turi Shias seeking to relocate to a city like Islamabad, Rawalpindi or Karachi directly from Kurram district.
[45] AAY15 v MIB [2017] FCCA 476.
The DFAT report indicates that Pakistan continues to face security threats from militant groups and those anti-Shia groups, such as LeJ, SSP, JeM and the TTP, continue to operate across Pakistan despite government and military operations disrupting their activities. The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.[46]
[46] DFAT Country Information Report Pakistan, 20 February 2019, 2.27 p.18.
DFAT further comments that despite measures introduced to curb violence across the country under the NAP—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.[47]
[47] DFAT Country Information Report, Pakistan, 20 February 2019, 5.2, p.62.
According to UNHCR Eligibility Guidelines relating to religious Minorities in Pakistan, the government has been criticised for failing to protect Shia Muslims from attacks, and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks on Shias in Pakistan.[48]
[48] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of ReligiousThe US Department of State reports that the Pakistan police often failed to protect members of religious minorities, including Shias, although there have been improvements.[49] The US Commission on International Religious Freedom (USCIRF) also assesses that despite government efforts and positive rulings by the Supreme Court, the government failed to provide adequate protection to targeted groups or to prosecute perpetrators or those calling for violence.[50]
[49] US Department of State, Pakistan – Country Reports on Human Rights Practices 2015, 13 April 2016, section[50] USCIRF, Annual Report 2015 - Pakistan, 30 April 2015, p.2
Turis outside of the Kurram Agency have been targeted and killed with impunity by extremists on a number of occasions. These incidents have happened over many years and continue to occur. The applicant has not been personally targeted in acts of extremist violence outside of his home area. However this is because the applicant has not spent much time outside of his home area and not because his ethnicity in combination with his religion does not make him conspicuous. While the Tribunal does not accept the applicant’s [sibling] had been killed and that [the sibling] probably continues to reside in Rawalpindi or some other Pakistani city as a [professional], the Tribunal does not place any adverse emphasis when evaluating whether the applicant will be denied state protection.
The Tribunal assesses that the applicant’s foreseeable experience will be consistent with the country information outlined above. It is noted that DFAT assess the threat risk for Shia in Pakistan who are Hazara and Turis vary depending on geographic location and that the risk of high-profile Shia face a moderate risk of violence. It is also noted that the Turis have distinct Pashtu accents and that they face the added risk of being violently targeted by rival tribe members of the Bangash who are also Pashtun. The applicant has provided credible information that he attends Ashura and has participated in pilgrimages. Shia pilgrims face a moderate risk of violence from sectarian militants. Given that Turis are both ethnically and religiously conspicuous throughout Pakistan and that anti-Shia organisations and militants, especially of Pashtun origin, operate throughout Pakistan, the Tribunal assesses that the applicant, as a Turi Pashtu who is Shia, has more than a low risk of violence from sectarian militancy. In this regard, the Tribunal finds that the applicant is a relatively conspicuous and vulnerable target as a Turi Shia whose risk of serious harm outside the Kurram District is appreciable.
The information about Turis and the applicant’s accepted religious affiliation and practices as a Shia Muslim strongly indicates that state protection is severely compromised in Pakistan due to the predominance in some regions of tribal justice systems, systemic corruption of security and political agencies, an endemic lack of resources for security personnel and the nature of the ongoing extremist threat despite the authorities’ more targeting terrorist groups in Pakistan, such as the TTP. Security for Shia Muslims throughout Pakistan has improved but remains fragile. The Tribunal accepts that police and security forces in Pakistan are ill-equipped to protect Turi Pashtun citizens who are targeted by extremists and others, and that Turi Pashtuns are generally more conspicuous by their religion as Shias and aspects of their ethnicity, such as their accents, than other Shia Pakistanis who are targeted by fundamentalist Sunni militants that hold eliminationist views towards all Shia Muslims. Furthermore, successful prosecution rates are low, which leads to a perception that extremist attackers enjoy immunity from justice, due to resource deficiencies and corruption throughout Pakistan. The level of state protection throughout Pakistan available to the applicant is accordingly not at a level which citizens are entitled to expect according to international standards.
Conclusion
The Tribunal accepts the applicant has a real chance of serious harm based on his ethnicity as a Turi Pashtun and based on the related Convention based on the applicant’s religion given belonging to the Shia branch of the Islamic religion, if he were to return to his home area of Kurram District in Khyber Pakhtunkhwa.
Having considered the available country information, the Tribunal finds that that it would be unreasonable for the applicant to relocate to any other part of his country of nationality as the applicant will face an appreciable risk of persecution based on the essential and significant reason that the applicant is a Turi Pashtun who is a Shia Muslim.
The Tribunal is satisfied that the applicant is unable to avail himself of state protection from persecution in anywhere within Pakistan and that it is not reasonable for him to relocate to other parts of Pakistan to avoid the risk of Convention based persecution that he faces.
In conclusion, the Tribunal finds that the applicant satisfies the refugee criteria as the applicant has a real chance of serious harm for the essential and significant reasons based on a combination of his ethnicity and religion, if he were to return anywhere within his country of nationality.
The applicant’s fear of persecution is well-founded and he is a refugee who satisfies the criteria under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Accordingly the applicant satisfies s.36(2)(a) of the Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Accordingly, the applicant satisfies the criterion in s.36(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Brendan Darcy
Member
Minorities from Pakistan, 01 January 2017, p.55-56..
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