1933120 (Refugee)

[2023] AATA 2501

1933120 (Refugee) [2023] AATA 2501 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Ellen Moore

CASE NUMBER:  1933120

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Alison Murphy

DATE:30 June 2023

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 30 June 2023 at 11:48am

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Court remittal – religion – Shia – race – Turi tribe – imputed political opinion – family members of Anjuman-e-Hussainia – reasonable internal relocation – family and tribal networks – mental health issues – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application 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).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 26 November 2012 and the delegate refused to grant the visa on 10 December 2013. In doing so the delegate accepted the applicant to be a young male of Shia religion and Turi ethnicity from Parachinar, which was at that time part of Kurram Agency in Pakistan’s Federally Administered Tribal Area (FATA).

3. The delegate found the applicant to be a credible witness and accepted his claims about the events in Parachinar, considering those claims to be consistent with country information about the situation for Shia Turis in Kurram Agency. The delegate accepted that if the applicant returned to his home area of Kurram Agency, there was a real chance he would face persecution because of his Shia religion and Turi ethnicity and state protection would not be available to him. However the delegate considered that it was reasonable for the applicant to move to another part of Pakistan where there was not a real chance that he would face persecution for a Convention reason.

4. The applicant first sought a review of the delegate’s decision from the former Refugee Review Tribunal (the RRT) and that Tribunal affirmed the decision of the delegate on 2 December 2014. Its reasons show that the Tribunal accepted the applicant had a well-founded fear of persecution in his home area of Parachinar or Upper Kurram Agency, but that it was reasonable for him to relocate to a city in Pakistan outside of those areas where there would not be a real chance of persecution, such as Islamabad or Rawalpindi. [In] July 2015, the Federal Court of Australia quashed the RRT’s decision and remitted the matter back to this Tribunal for re-consideration, finding the Tribunal had failed to correctly apply the internal relocation test.

5. On 10 May 2016, this Tribunal (differently constituted) again affirmed the decision of the delegate, finding that the security situation in Kurram Agency had significantly improved since the applicant’s departure in 2012 as a result of which the applicant did not have a well-founded fear of persecution on return; nor was he owed complementary protection. [In] November 2019 the Federal Court of Australia quashed the Tribunal’s decision, finding the Tribunal had failed to consider the issue of the safety of the applicant’s travel outside of Kurram Agency and in particular how he would safely access Parachinar from a point of entry into Pakistan.

6. The applicant appeared before the Tribunal on 15 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Doctor A] from [Agency 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

7. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

9. 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).

10. 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.

11. 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’).

    Mandatory considerations

12. 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.

    Non-disclosure certificate

13. The Tribunal has before it the departmental file relating to the refusal of the applicant’s protection visa. On 13 August 2015, a delegate purported to place restrictions on some of the material given to the Tribunal by the Department by issuing a certificate under s 438 of the Act.

14. Where a valid certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

15. Having considered the validity of the certificate, the Tribunal wrote to the Department inviting them to reconsider that certificate, noting that the only reason given for non-disclosure is that the certificate material contained internal working documents and business affairs.

16. On 15 May 2023 the Department responded by stating that the delegate had agreed to revoke the certificate and that it was accepted that the certificate was inoperative. On the same date the Tribunal provided a copy of the revoked certificate and the affected material to the applicant. 

    CONSIDERATION OF Claims and evidence

17. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Country of nationality

18. It is not in dispute that the applicant is a citizen of Pakistan. The delegate accepted that he departed Pakistan from Peshawar airport using his own genuinely issued passport, a copy of which is contained on the departmental file along with his Pakistani National Identity Card, domicile certificate, marriage certificate and school leaving certificate. He transited through [specified countries] before arriving in Indonesia where he boarded a boat in early April 2012 and that boat was intercepted by the Australian Navy. He has at all times stated that he is a citizen of Pakistan and he has been assessed on that basis by the Department. The Tribunal finds he is a Pakistani citizen and has assessed his claims against Pakistan as his country of nationality and the receiving country.

    The applicant’s personal background

19. The applicant’s passport records that he was born in Kurram Agency and is currently [age] years old. He has [specified family members]. He lived with his parents and siblings in [Village 1] in Kurram Agency and attended school until [specified year] at the [grade] level. [That year] he moved with his parents to [a location] in Parachinar city where the applicant worked in his father’s grocery store. He married his wife [named] in May 2004 and they have no children.

20. It is not in dispute that he left Pakistan from Peshawar airport using his own genuinely issued passport, transiting through [specified countries] before arriving in Indonesia where he boarded a boat in early April 2012. That boat was intercepted by the Australian Navy and the applicant entered Australia [in] June 2012.

21. I accept the above matters to be true.

    Medical evidence

22. Medical evidence submitted to the Tribunal indicates the applicant suffers from major depressive disorder on the background of trauma and situational stressors. These include witnessing the deaths of other passengers when the boat on which he travelled to Australia sunk and chronic hopelessness resulting from the prolonged visa application process.

23. He has no access to Medicare but has for some years been under the care of medical practitioners at [Agency 1], where he has been supported by a case worker, a counsellor, a mental health nurse and psychiatrist. He experiences frequent suicidal/self-harm ideation and has required multiple crisis interventions.

24. The Tribunal accepts the above matters to be true.

    The applicant’s claims for protection

25. The applicant has been assessed as a credible witness by each of the previous decision makers, all of whom have accepted his account of the harm he has experienced as a member of the Turi tribe of Shia religion in Kurram Agency. In particular there is no dispute that the applicant is of Shia religion and Turi ethnicity. His domicile and police clearance certificates confirm he is from the Turi tribe (section [specified]) and DFAT confirms that the majority of Shias in FATA and Kurram Agency are from the Turi tribe.[1]

    [1] DFAT DFAT Thematic Report: Shias in Pakistan 14 April 2015 

26. The applicant fears harm from the Taliban in Kurrum Agency, because they are against Shia people whom they consider to be infidels. He states that living in Parachinar is like living in a cage, with just one road into and out of Parachinar where the Taliban catch Shia people and behead them. In 2007 a truck carrying supplies for his father’s store was travelling in convoy with 40–50 other trucks accompanied by government escorts when the convoy was attacked by the Taliban, who burned or looted the trucks and killed approximately 20 people in the convoy.

27. His sister-in-law [named] died in childbirth in Parachinar hospital in 2008 because it was unsafe to transport her to the bigger hospital in Peshawar for urgent medical treatment. The applicant himself witnessed three to four bomb blasts in Parachinar in 2011 and 2012 and his father decided he should leave. After the applicant’s arrival in Australia, his cousin [named] was killed in a bomb attack in a crowded shopping area in Parachinar for which the Taliban claimed responsibility. The applicant’s account of each of these events was accepted by each previous decision maker. Those events are also consistent with the country information about the situation in Parachinar and Kurram Agency cited below and the Tribunal accepts they occurred as claimed.

28. In his statutory declarations made 11 August 2022 and 10 May 2023 and in his oral evidence at the hearing in May 2023, the applicant raised new claims concerning his uncle [Uncle A]. He stated his uncle was elected the [Position 1] of the Anjuman-e-Hussainia, a community-based body formed to make decisions about how Shia Turis should defend themselves against the Taliban. He stated that in 2010 [Uncle A’s] house was subject to a bomb attack, one of hundreds of such attacks happening at the time. He did not leave his post, but it ended after three years and while his uncle is no longer [Position 1], he still has a role consulting with leaders on matters of security.The applicant explained that the members of the Anjuman-e-Hussainia are chosen by the people and the Anjuman-e-Hussainia sometimes sends armed protection to villages in Kurram District from the Markaz, being the headquarters of Shias in Parachinar. He claims that he has not raised this issue before because of his poor mental health and because it is not always clear to him which details are important for his case.

29. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. In this case the applicant did not raise such claims before the department or the first or second tribunals. However the Tribunal considers that the applicant’s poor mental health, together with the number of times the applicant has been asked to recount his claims during these extended proceedings and the fact that the events now described did not impact directly on the applicant constitute a reasonable explanation as to why this matter was not raised earlier. As well, the applicant’s description of those events is consistent with country information about events in FATA at the time.

30. Country information indicates that Anjuman-e-Hussainia is a Shia organisation and advocacy group in Kurram, described as the ‘supreme council of elders’ of the Shia Turi tribe.[2] While not officially connected with the system of administration in the (former) FATA agencies, multiple reports indicate that it is involved in the enforcement of security in the area and advocates for greater state protection for Turi Shias in the region.[3] The Tribunal accepts the applicant’s claim that his uncle served in some official capacity on this committee to be plausible, noting the relatively small population of Parachinar and surrounding villages make it entirely likely that most families would be represented on the Anjuman-e-Hussainia at some point in time. Its rotating system of office holders as described by the applicant is consistent with media reports naming a number of persons as [Position 1] or spokesperson around 2009–2011. DFAT reported in 2011 that militants were targeting members of Anjuman-e-Hussainia in Kurram for tactical and sectarian reasons and that high-ranking members were more susceptible to attacks.[4] As the applicant states in his evidence, the attack on his uncle’s home was one of hundreds of attacks taking place at the time.

    [2] Subramanian, N. 2008, ‘In Pakistan, a Shia-Sunni war to oust Taliban’, Inside Sectarianism, source: The Hindu, 3 September Department of Foreign Affairs and Trade 2011, DFAT Report No. 1313 – Pakistan: RRT Information Request: PAK38999, 28 July

    [3] Hussain, N. 2011, ‘Kurram Agency peace deal: Tribal elders to enforce pact in Parachinar only’, The Express Tribune, 11 October ‘Action against miscreants in Kurram urged’ 2011, The Nation, 5 September Department of Foreign Affairs and Trade 2011, DFAT Report No. 1313 – Pakistan: RRT Information Request: PAK38999, 28 July

At the time of the Tribunal hearing, the applicant’s mother and wife had relocated back to the village of [Village 1] from Parachinar city to live with the applicant’s [siblings] following the death of the applicant’s father. His [specified siblings] are all married and live with their families in [Village 1], using what they can of the family land to support themselves.

The Tribunal accepts each of the above matters to be true.

Risk of harm on return

The Tribunal accepts that if returned to Pakistan, the applicant will return to [Village 1] in the former Kurram Agency, now known as Kurram District in the Kohat Division of Khyber Pakhtunkhwa Province (KPK). Up until 2018, Kurram Agency was one of seven FATA in the north-west of Pakistan, bordered on the north and west by Afghanistan. In the 2017 census it had a recorded population of 615,372 people.[5] In 2018, the FATA were merged with Khyber Pakhtunkhwa and Kurram Agency became a district in the Kohat Division of Khyber Pakhtunkhwa Province (KPK). In identifying the applicant’s home area, the Tribunal considers that he will be returning to Kurram District located in the tribal regions of KPK that were formerly known as the FATA.

[5] Pakistan Bureau of Statistics website at 02701.pdf (pbs.gov.pk)

The area which now forms Kurram District was part of Afghanistan before the second Afghan War in 1878–9 and the local population are reported to have continuously resisted and resented Afghan domination.[6] The violent conflict between Shia Turi/Bangash and Sunni Bangash in Kurram Agency occurred sporadically from the 1970s, but worsened in 2001 following the arrival of NATO forces in Afghanistan causing members of the Afghan Taliban to regularly seek passage through Kurram.[7] By 2009, fighting in the region had claimed more than 1,500 lives and injured thousands more as well as causing massive dislocation of residents. It was reported that Sunni Bangash tribesmen carried out these attacks after being emboldened by the presence of the Taliban and their hard-core brand of Sunni ideology.[8]

[6] ‘Siraj Haqqani sheltering in Kurram, near area of US helicopter strikes’ 2010, The Long War Journal, 22 October

[8] International Crisis Group 2009, Pakistan: The Militant Jihadi Challenge, Asia Report N°164, 13 March, p.15; Chandran, S. 2008, ‘Sectarian Violence in Pakistan’s Kurram Agency’, Pakistan Security Research Unit (PSRU), Brief Number 40, 22 September, p.6

Between 2008 and 2014, Turis faced significant violence from militant groups including the Tehrik-e Taliban Pakistan (TTP), being subjected to frequent suicide bombings and targeted attacks on the Shia community.[9] In 2014, the ongoing conflict in the FATA led to it being described as the most dangerous place on earth.[10] The US Institute of Peace reported in February 2014 that FATA had been the most violent region in South Asia for over two decades.[11]  In February 2014 it was reported that the incidence of violence in FATA in recent years had been unprecedented, with statistics revealing approximately 16,578 casualties between 2009 and 2013 as a consequence of sectarian strife, terrorist related activity, military operations and the US Predator drone campaign.[12]

[9] BBC 2010 The Pakistani tribe that is taking on the Taliban 21 October 

[10] SATP ‘FATA Assessment 2014’ SATP ‘FATA Assessment 2014’ US Institute of Peace 2014 Mapping Conflict Trends in Pakistan February at 3, 5, 8

1. Security operations in the region resulted in a significant reduction in the number of violent and terrorism related incidents during 2015 but also displaced large numbers of people. Voluntary returns to FATA began as the security situation improved and in January 2016 DFAT reported that 25% of those displaced from Kurram including Parachinar and surrounding villages had returned. Most casualties in the FATA in the first six months of 2015 were reported to be militants or security forces killed as part of Operation Zarb-e-Azb, with only one sectarian attack reported in the wider FATA area in 2015. In January 2016, DFAT assessed that there was a low level of sectarian violence overall in the FATA, most of which was occurring in North Waziristan and Khyber Agency.[13] The Tribunal notes that it was shortly after DFAT issued this report that the second Tribunal found that the security situation in Kurram Agency had significantly improved such that the applicant did not have a well-founded fear of serious or significant harm on return to that area.

   [13] DFAT Thematic Report: Shias in Pakistan 15 January 2016 at 4.31–4.36

2. However the security situation again deteriorated in 2017, with DFAT reporting that deaths from terrorist attacks in Kurram Agency significantly increased during that year. Three attacks targeting Turis in Parachinar on the grounds of their Shia faith in the first six months of 2017 killed more than 120 people.[14] Security operations conducted in the region in 2018 reportedly again decreased the number of severity of attacks on Turis, with significantly fewer road attacks restoring confidence in the Turi community to travel on the Thall-Parachinar road. DFAT attributed the trend of decreased attacks against Turis in 2018 to the improved security situation in Parachinar and Kurram Agency, but noted that attacks and violence against Turis can, and may still occur. It assessed Turis in Kurram Agency faced moderate risk of sectarian violence from militant groups because of their Shia faith.[15] It also noted that those security operations restricted freedom of movement and limited the community’s access to essential services and trade opportunities. Many Turis were displaced and on return faced extensive damage to property and crops.[16]

   [14] DFAT Country Information Report: Pakistan 20 February 2019 at 3.15

   [15] Ibid at 3.26

   [16] Ibid at 3.16–3.18

3. In January 2022, DFAT reported that the security situation in Kurram District had improved considerably in recent years, although the underlying triggers for conflict in Turi areas remained. It reported two sectarian attacks against Turis and assessed that Turis in Kurram Agency faced moderate risk of sectarian violence from militant groups because of their Shia faith.[17] DFAT has not produced a further country information report for Pakistan since January 2022.

   [17] DFAT Country Information Report: Pakistan 22 January 2022 at 3.66

4. However within months of DFAT’s January 2022 report, there were signs that the security situation in Pakistan generally and KPK particularly had again sharply deteriorated. South Asia Terrorism Portal reports that terrorism-linked fatalities in Pakistan surged 46.45% in 2022 from 663 to 971. This is attributed primarily to the re-grouping of the TTP in August 2020 and the capture of the Afghan government by the Taliban in August 2021, strengthening the TTP and facilitating their return to the tribal areas of Pakistan which they had fled during Operation Zarb-e-Azb. As might be expected given its proximity to Afghanistan, KPK was most affected by the Taliban resurgence, recording the highest fatalities (527) since 2014.[18]

   [18] Terrorism Assessment, Pakistan (satp.org)

5. In an interview in July 2021, TTP Chief Noor Wali Mehsud stated that his group had a ‘good relationship’ with the Afghan Taliban and hoped to benefit from its victories in Afghanistan, warning the TTP would ‘continue its war against Pakistan’s security forces’ with the goal of ‘tak[ing] control of the border regions and mak[ing] them independent’.[19]

   [19] Terrorism Assessment, Pakistan (satp.org)

6. The International Crisis Group (ICG) reports that after the Afghan Taliban took control of Kabul in 2021, it released hundreds of Pakistani Taliban, including key leaders, from the prisons of the former Afghan government, reuniting TTP splinter groups and strengthening its operational structures, including the central command in Afghanistan and shadow governments in Khyber Pakhtunkhwa and Balochistan’s Pashtun belt, headed by tribal factions.[20] Four key developments are reported to have defined the TTP’s ensuing resurgence: a series of mergers and absorptions of other militant groups, the adoption of a centralised organisational structure emulating the Afghan Taliban insurgency, growing operational activity expanding from the tribal belt of KPK to the major cities of Pakistan, and an increase in the output and sophistication of the TTP’s main propaganda outlet, Umar Media.[21]

   [20] The Pakistani Taliban Test Ties between Islamabad and Kabul | Crisis Group

   [21] CTC-SENTINEL-052023.pdf (westpoint.edu)

7. Shortly after the Taliban returned to power in Afghanistan, Pakistan’s government approached the Afghan Taliban to facilitate peace negotiations with the TTP. The Pakistani government offered a general amnesty to the militants on the condition that they lay down arms and return to normal life in the country, but the TTP rejected this offer saying they intended to continue its armed struggle until democracy had been replaced with sharia law governing Pakistan.[22] In particular the TTP sought the reversal of Islamabad’s 2018 decision to merge the FATA into KPK, demanding the Pakistani government pull out of these areas and impose Islamic law in all of KPK and Balochistan.[23]

   [22] CTC-SENTINEL-052023.pdf (westpoint.edu)

   [23] The Pakistani Taliban Test Ties between Islamabad and Kabul | Crisis Group

8. This led to an increase in security incidents in KPK over the summer of 2022, despite the TTP announcing a unilateral ‘indefinite ceasefire’ in June. Militants were reported to be much more visible in the province, setting up checkpoints, extorting fees from travellers, kidnapping police and army officers, and killing government officials as well as political and tribal leaders who spoke out against them.[24] The Pakistan Institute of Peace Studies (PIPS) reported that by August 2022, a year after the Afghan Taliban takeover, militant attacks in Pakistan had increased by 51 per cent, with more than 75 per cent of them taking place in KPK.[25] It reported an increase of persons killed (74%) and injured (222%) in KPK during 2022 compared to 2021. Three terrorist attacks are reported to have taken place in Kurram District during 2022, resulting in four fatalities and three injured.[26]

   [24] Ibid

   [25] Terror attacks in Pakistan surge by 51pc after Afghan Taliban victory - Pakistan - DAWN.COM

   [26] PIPS Research Journal, Conflict and Peace Studies, Pakistan Security Report 2022, Volume 15,

9. In March 2023, the ICG reported that the TTP had gone on a killing spree since January 2023, with most attacks taking place in KPK and Balochistan. The increase in attacks is attributed to three interlinked factors: the Afghan Taliban’s alleged provision of sanctuary to the TTP; the Pakistani militants’ access to sophisticated arms left behind by NATO forces in Afghanistan; and concessions granted to the group during the negotiations, in particular the choice to allow hundreds of armed fighters to return to Pakistan.[27]

   [27] International Crisis Group The Pakistani Taliban Test Ties between Islamabad and Kabul | Crisis Group 23 March 2023

10. It is clear from the country information that the primary targets of the TTP are Pakistan’s security agencies, with more than 300 police officers losing their lives between September 2022 and March 2023, mainly in KPK.[28] However the killings are not limited to members of the security forces, with South Asia Terrorism Portal (SATP) reporting that of the 527 killings that occurred in KPK in 2022, 173 were members of the security forces while 235 were militants and the remaining 119 were civilians. In the first five months of 2023 a further 27 civilians were killed out of a total of 354 fatalities.[29]

    [28] International Crisis Group The Pakistani Taliban Test Ties between Islamabad and Kabul | Crisis Group 23 March 2023

    [29] Terrorism in Pakistan - Yearly Fatalities | SATP

11. DFAT reports that Shias have historically been targeted by the TTP and other sectarian terrorist groups, which retain the capacity and intent to carry out attacks against Shia anywhere in the country. In January 2022, DFAT assessed that even given the significantly improved security situation that then appeared to exist in Kurram District, Turis in that region continued to face a moderate risk of sectarian violence from militant groups because of their Shia faith.[30] On 5 May 2023, five Shia teachers and two labourers were killed in Teri Mangal in Kurram District in a sectarian attack after two gunmen entered the school, identifying Shiite people and separating them from others before opening fire.[31] The attack appears to have been a reprisal for the murder of a Sunni teacher earlier in the day.[32]

    [30] DFAT Country Information Report: Pakistan 22 January 2022 at 3.66–3.66

    [31] Five teachers killed in Pakistan school shooting as sectarian tensions boil over - ABC News

    [32] Six teachers among 8 gunned down in Kurram school firing (nation.com.pk)

12. The applicant gave evidence that following that attack, a curfew was imposed on residents of Parachinar and surrounding villages which lasted for several weeks and severely restricted their movements making it very difficult to survive and itself constituted serious harm. While the applicant’s statutory declaration refers to that curfew being imposed by the Anjuman-e-Hussainia, at hearing the applicant clarified it was imposed by the Pakistani authorities and the Tribunal accepts that to be the case. As discussed with the applicant at hearing, while the Tribunal accepts the imposition of that curfew imposed significant hardship on the residents of Parachinar and surrounding villages it would appear to be a law of general application applicable to all members of the population for the legitimate object of investigating a very serious attack and protecting the community from further attacks and reprisals. In these circumstances the Tribunal does not accept that the hardship imposed on the affected population constitutes persecution for the purposes of the Convention.

13. The Tribunal notes that much of the violence that has recently taken place in KPK occurred in areas outside of Kurram District, for example in North and South Wazaristan and Peshawar. However the Tribunal accepts the submission that those areas are all within a few hundred kilometres of Parachinar, in some cases significantly less, and that the violence in those areas should not be discounted in an assessment of the risks to the applicant on return to the neighbouring Kurram District of KPK. The Tribunal also considers it is clear from the chronology set out above that while there have been periods of significant improvement in the security situation in Kurram District over the past decade as a result of government operations, such improvements have always been followed by rapid deteriorations.

14. In light of DFAT’s most recent advice that Turis in Kurram District continue to face a moderate risk of sectarian violence from militant groups because of their Shia faith and in conjunction with the escalation of violence in KPK since the Taliban took control of Afghanistan in August 2021; the close ties between the TTP and the Afghan Taliban and the TTP’s demands that the Pakistani government pull out of KPK and Balochistan and impose Islamic law in those areas; and the serious sectarian attack on the village of Teri Mangal approximately 20km from the applicant’s home village in Kurram District in May 2023, the Tribunal does not discount the chance that a Turi Shia such as the applicant would face serious harm on return to Kurram District as remote.

15. DFAT reports that while Pakistan’s formal legal framework provides for state protection of people’s property and lives, in practice that protection is limited due to resourcing; corruption, socio-economic factors at the individual level, and lack of political will. Successful prosecution for politically motivated or sectarian violence is reported to be rare, due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.[33] While the authorities of Pakistan have undertaken a number of security operations in KPK over the past decade, the continuing violence in the applicant’s home area of KPK causes the Tribunal to consider that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution for the essential and significant reason of his Shia religion and Turi ethnicity in his home region of KPK.

    [33] DFAT Country Information Report: Pakistan 22 January 2022

16. In considering whether it is reasonable for the applicant to relocate to another part of Pakistan where he will not face a real chance of serious harm, the Tribunal notes DFAT’s advice that Turis can and do relocate to other parts of Pakistan, but like other groups their ability to do so is heavily dependent on financial means, as well as having personal, family and tribal networks in the new location.[34]

    [34] Ibid at 3.65

17. In this case the Tribunal accepts that the applicant’s family members remain living in their village of [Village 1], using what they can of the family land to support themselves. They have not relocated elsewhere in Pakistan because they lack the financial means and support networks to do so. The applicant has minimal education and has worked only in an unskilled capacity. As well, he suffers from major depressive disorder and experiences frequent suicidal/self-harm ideation for which he has required multiple crisis interventions in Australia. DFAT reports that the overall standard and availability of healthcare in Pakistan is low, particularly in rural areas, and the bulk of healthcare costs are borne as out-of-pocket expenses by patients. As well, options for mental health care are limited with 90% of those with common mental health conditions going untreated.[35] The applicant gave evidence that his family could not afford mental health treatment and I consider that to be consistent with his evidence over the course of these proceedings about his family circumstances. The Tribunal accepts that the applicant will have little if any capacity to meet the costs of his mental health care if he is returned to Pakistan leading to a likely deterioration in his mental and physical health, with potentially dire consequences. In these circumstances the Tribunal considers that relocation is not practicable or reasonable for the applicant.

    [35] Ibid at 2.10–2.16

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

    DECISION

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

    Alison Murphy
    Member

    
    
    

January 2023, Number 1 (‘PIPS 2022 Report’), at

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