1933670 (Refugee)

Case •

[2021] AATA 3251

•

30 June 2021

1933670 (Refugee) [2021] AATA 3251 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933670

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Windsor

DATE:30 June 2021

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 2021 at 2:14 pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Sunni extremist attacks on Shia community and individuals – ethnic and tribal conflicts – non-practising, Westernised returnee – de facto relationship with Australian permanent resident from another country and religion – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Khawar (2002) 210 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 February 2014 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 18 December 2012.  A summary of relevant applicable law is at Attachment A.

  3. In his Protection visa application the applicant indicated he was born on [Date] in [Village 1], around [number] kilometres from Parachinar in the Kurram Agency (part of the then Federally Administered Tribal Areas or FATA), Pakistan.  He indicated he is ethnic Pathan (Pashtun) of the Shia Muslim faith and has never married.  He indicated he departed Pakistan legally [in] June 2012 and entered Australia as an unauthorised boat arrival [in] July 2012, travelling via [Country 1], [Country 2] and [Country 3].[1]

    [1] See the Departmental file.

  4. In a statutory declaration of 11 December 2012 included with the application, the applicant indicated he came to Australia because of conflict between Sunni and Shia Muslims.  He indicated that his father moved the family to ‘Pende’ (Rawalpindi) for their safety following an explosion in 2009 near his uncle’s shop in Parachinar, which claimed around 25 lives, but Sunni people from Parachinar also moved there and he feared being kidnapped and beheaded, as they heard reports of this happening in Rawalpindi and Peshawar.[2]

    [2] See the Departmental file.

  5. The Delegate accepted the applicant’s evidence that his family moved from Kurram Agency in 2009 to Wah Cantt (Wah Cantonment) in the Rawalpindi district of Punjab province, Pakistan and resided there from 2009 until he departed for Australia in 2012.  The delegate did not accept that the applicant could not obtain work because he is Shia or because he was from Parachinar, or that that he could not leave the house due to safety concerns.  Considering relevant country information, the delegate accepted that attacks on Shias by Sunnis had increased in a number of areas of Pakistan in recent years, but did not accept there was a more than remote chance the applicant would face persecution due to his Shia religion if he returned to Rawalpindi.  The delegate also considered that the applicant is a member of the Bangash tribe from Parachinar and considered whether he might be at risk of harm due to being imputed with an anti-Taliban political opinion.  The delegate found there was not more than a remote chance he would face persecution due to his Bangash race or an imputed pollical opinion.

  6. The applicant applied to the Tribunal for review of this decision on 26 February 2014.

  7. The Tribunal, differently constituted, affirmed the delegate’s decision on 19 November 2015. 

  8. That Tribunal decision was set aside by the Federal Circuit Court of Australia [in] October 2019 and remitted to the Tribunal for reconsideration according to law ([citation redacted]).  The court found that the Tribunal erred in finding that Parachinar was the applicant’s home area and that the Tribunal ought to have considered that the applicant’s home, if returned to Pakistan, would be the place where he had lived and called home for a substantial period of time with all bar one of his family – namely in Wah Cantonment. The court found the error was substantial and material and, as such, constituted jurisdictional error on the part of the Tribunal.

  9. The applicant appeared before the currently constituted Tribunal on 9 June 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

  10. The applicant was represented in relation to the review by their Australian legal practitioner.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Summary of claims

  11. The applicant’s initial claims for protection were set out in a statutory declaration of 11 December 2012 included with his protection visa application.  His claims from this statement are summarised as follows:[3]

    [3] See the Departmental file.

    ·He lived and grew up in [Village 1] which is around [number] kilometres from Parachinar and has around 80 houses.  Around half the people were Sunni Muslims and half were Shia.

    ·His father has lived in [Country 4] (later corrected to [Country 5]) for around 10 years.  He remains in close contact and makes all the major decisions for the family.

    ·Until 2007 there were no major problems between Sunni and Shia people.  They all mixed at school and in the village.

    ·Things began to change in around 2007 when a Sunni Sheik from another area incited Sunni people to insult the Shia religion.  The Shia community held a protest march 5 days later which was fired upon by Sunni people, resulting in a number of deaths. The relationship between Sunnis and Shias deteriorated from that time and there were regular confrontations.  A lot of Sunni people left the area and moved to other cities, such as Sadda, blocking the roads behind them.  This meant the road to Peshawar was blocked.

    ·Because the roads were blocked they could not get food or medical supplies.  Whatever they could buy was really expensive.  They had no electricity and there was no schooling.  The government charged them fees to escort convoys to get through.

    ·In 2009 there was an explosion [number] metres from his uncle’s shop.  It was not badly damaged but around 25 people were killed.  His father decided it was no longer safe in Parachinar so came home and moved them to a rented house in Rawalpindi

    ·Things were okay at first.  His brothers were able to go to school again.  They were still traumatised by what they had seen and experienced in Parachinar.  He didn’t like to go out of the house very much.

    ·Some Sunni people who had come from Parachinar also lived in Rawalpindi.  They didn’t know this would be the case and became very scared when they saw them.

    ·He couldn’t work and was scared to leave the house.  Their identity documents clearly identified them as Shias.  A lot of Shia people were being kidnapped and beheaded in Rawalpindi and Peshawar.  He was really anxious and upset and told his father he did not want to stay in Pakistan anymore.  To be a Shia Muslim in Pakistan is just not safe.  His father decided to arrange for him to leave Pakistan.

  12. At an interview with the delegate on 16 October 2013 the applicant indicated that:

    ·His father has two wives.  His father returned to Pakistan 4 or 5 months ago because he was sacked from his work in [Country 5] as [an Occupation 1] because he is a Shia.  He is not working currently and the family survive on his savings.

    ·[His uncle’s shop in Parachinar], where he used to work, is a [specified] shop.  His uncle also moved to Wah Cantt and lives in another house there.

    ·The Sunni’s who moved to Rawalpindi sent letters threatening to kill the Shia families in the area.  While there were no incidents, he always feared that something would happen to him.

  13. As noted by the previous Tribunal, in a submission to the Department dated 18 October 2013, [the applicant]’s then representative submitted that the nature of the conflict in the Kurram Agency was based on issues of religion, tribal conflict and extremist Taliban/Sunni beliefs which affected the applicant not only in the Kurram Agency but throughout the country.  They referred to information dating from between 2009 and 2012 in relation to the situation in the Kurram Agency.  They also submitted, without referring to any evidence, that the security situation was worsening in North West Pakistan and in Pakistan generally and that this was likely to get even more dangerous for Shia in the near future which they submitted was evident from the increasing number of reported attacks on Shia.

  14. As also noted by the previous Tribunal, on 28 May 2015 the applicant’s then representative provided a pre-hearing submission in support of the review application.[4]  In this submission the representative submitted that the applicant would face serious harm from the Tehreek-e-Taliban Pakistan (TTP) or other extremist Sunni groups in Pakistan for reasons of his Shia religion, his Turi (sic) ethnicity, his imputed political opinion in opposition to the Taliban (on account of his religion, his ethnicity, his origins from the Kurram Agency, a region with a long-standing violent conflict with the Taliban, and his extended presence as an asylum-seeker in Australia, a western country with a Christian heritage) and his membership of the particular social groups of ‘Shi’a Turis [sic] from Kurram Agency’ and ‘Returned failed asylum seekers from a Western country’.  The representative submitted that [the applicant] not only feared direct targeted serious harm from Sunni extremist groups including the TTP but also the discriminatory withholding of protection for a Convention reason of the kind referred to by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. Further, and in the alternative, they submitted that there was a real risk that [the applicant] would suffer significant harm if he returned to Pakistan.

    [4] See Tribunal file 1405312.

  15. At the hearing before the first Tribunal, the applicant indicated that:

    ·His older sister is married, and she remained in Parachinar when they moved to Rawalpindi.

    ·His family had no difficulty finding a house to rent in Wah Cantt.

    ·He tried to apply for a job as a shop assistant in Wah Cantt.

    ·While they have moved to another house, his parents, brothers and other sisters still live in Wah Cantt, Rawalpindi.

    ·His father has lived in Wah Cantt since about 2013, and sells and buys [commodity] there.  He does this over the phone.  The Sunnis followed his father three or four weeks ago when he was doing a business deal.  A second time they chased and stabbed him and he went to hospital.  He only found out about this a few days before the hearing.  His family do not tell him about all the problems they face.

    ·His siblings are not targeted by the Sunnis because they are young.  His father’s attack is the only incident of physical harm against the family that he knows of.

    ·His younger brothers are still attending school in Wah Cantonment.

    ·The applicant was not physically harmed or stabbed, he only received threatening letters from the Sunnis before he left Pakistan.  He personally only found two letters at their front door.  He does not know if other family members found these too.  They did not discuss it but suspects this is because they can’t read so thought it was junk.  It was after they received these letters that they moved to another house in Wah Cantt.

    ·He only lived in [Village 1] until he was [age] or [age] years of age, they then moved to [Location 1] in Parachinar up until 2009 and his father still owns a house there.

    ·He travelled to Kohat twice to apply for and collect his passport.  He travelled to Parachinar to get his National Identity Card in 2010.

  16. The applicant also produced a document which referred to the killing of a Shia cleric from Parachinar, Allama Nawaz Irfani, in Islamabad in November 2014, and to incidents in Sindh, Peshawar, Rawalpindi and Karachi in which Shias had been killed and injured.  It also referred to the South Asia Terrorism Portal’s ‘Pakistan Assessment 2015’ which said that, according to partial data, out of 226 civilian fatalities in the year to 22 February 2015, at least 105 Shia Muslims had been killed in terrorist attacks and that this number had increased dramatically in 2015 after a sharp decline in 2014.

  17. The representative provided a post-hearing submission on 27 October 2015.[5]  In this the representative submitted that despite any indications of an improved security situation in Kurram Agency, ‘independent country information supports the conclusion that Shias from the Turi and Bangash tribes continue to face a real risk of serious harm in Parachinar’.  Reference is made to country information in support of this assertion.  The submission also indicates that his sister-in-law died in childbirth due to a loss of blood and was unable to travel from Parachinar to Peshawar for medical assistance.  It is asserted that if he returned the Parachinar, the applicant would have to travel into and out of Parachinar on various occasions and travel on the Thal-Parachinar road which continues to be dangerous for Shias.

    [5] See Tribunal file 1405312.

  18. On 3 June 2021 the current representative made pre-hearing submissions in support of the remitted review application.  This included a further (unsworn) statutory declaration by the applicant, a statement by [Ms A], a letter of support from [Mr B], a legal submission and an annexure containing relevant country information.

  19. Relevant additional matters raised in the statement by the applicant are summarised as follows:

    ·He would be targeted by the Taliban because he is a Bangash Shia Muslim.  There are many checkpoints where they check your ID card and can note you are Shia.  They check to see if you have scars on your back as this is a sign you are a Shia.

    ·His native [village], where their ancestral home was situated, is in the district of Lower Kurram.  It is an isolated Shia abode, surrounded by Sunni people.  He does not belong to Parachinar.  Because of the security concerns they moved from [Village 1] to Parachinar in 1999 and became Internally Displaced People (IDPs).  The area was very unsafe and it was not possible for them to live there.

    ·His family relocated to Wah Cantt in 2009.  They are currently living in hiding there.  They only have one uncle who lives in Parachinar.  They do not have a house there and when they lived there they lived in a rented property.

    ·He lived in Wah Cantt from 2009-2012.  He was not able to continue his education as he was afraid of going to school.  He mostly stayed at home but sometimes would leave the house if there was an urgent need.  His mother did the shopping for them.  She wore a burka so her face never appeared.  The local people spoke Urdu there and as he did not speak the language that was a barrier to him.

    ·When his father was stabbed he only got a small injury and escaped and ran away.  He was treated in a private clinic.  The applicant does not have any evidence as there is not proper data kept by doctors.  His father did not report the matter to the police as he was afraid this would make it a bigger problem.

    ·He has not practised Islam since 2014.  He does not pray, do fasting or go to a mosque.  He drinks alcohol, eats meat which is not halal and eats pork, which is forbidden in Islam.  It is difficult to say whether he has left Islam.  He believes in God but has his own perceptions of God.  He believes in humanity and being a law-abiding person.  He does not agree with the way religion is defined and imposed by Mullahs in Pakistan.  He will be killed if he returns to Pakistan because he does not follow the religious rules.  He does not think it is possible for him to perform certain acts or religious practices in which he no longer believes.  It would be against his conscience.  He has developed a different attitude and ideas regarding God and people will not accept him.  There are people in Pakistan who check whether you practise the religion.  He will be killed as a Murtad (someone who has converted from Islam).  He has tattoos on his hands which people will question him about.

    ·He lives with his partner, [Ms A], without an Islamic Marriage, which is forbidden in Islam.  She is an Australian permanent resident.  She would not be able to go to Pakistan as she is not from Pakistan and is not a Muslim.  She says she will die if she goes to Pakistan.

    ·His family told him that he had to separate from [Ms A] as she is not a Muslim or she will have to convert because he is practising Zina (unlawful sexual intercourse).  [Ms A] does not wish to convert.

    ·There is nowhere in Pakistan where he could live safely.

  20. In her statement, dated 31 May 2021, [Ms A] indicates she has known and supported the applicant since 2014 and he has been at her house since then.  She indicates she has found him to be trustworthy, honest and kind and to be a liberal and enlightened person.  She comments he has very traumatic and bleak memories from his background community.  She states he is not practising any religion, but likes to drink with his friends at occasional parties and participate in Christmas and Easter celebrations.  She indicates he is cheerful, companionable and sociable, drinks coffee and eats bacon and eggs, and always wears Westernised dress.  She states she always enjoys his company.  [Ms A] requests that his protection claims be considered in light of his nice and innocent personality.

  21. The statement by [Mr B] indicates it is a reference letter on behalf of the applicant who is his friend.  [Mr B] comments that the applicant is of great character and has a great work ethic, integrity and kindness and would make a great citizen.

  22. In her submission, the current representative asserts that the applicant has a well-founded fear of persecution in Pakistan due to his Bangash ethnicity; Shia Muslim religion and being a non-practising Shia Muslim; political opinion as an opponent of the Taliban and other Sunni militants and as a supporter and advocate for the Shia community; and due to being a member of the particular social groups comprising young men from the Bangash tribe and men who have spent time in a western country and adopted a Westernised lifestyle and attitude.

  23. The representative asserts that the applicant only has substantial ties to Wah Cantt (she states the applicant’s family rented a house in Parachinar and now own a house in Wah Cantt, and he only has one uncle remaining in Parachinar).  The representative asserts that country information indicates that the applicant’s physical features, religion, language, accent, culture and family background all contribute to his identity and profile as a Bangash Shia which makes it dangerous for him to travel out of his home area as he will be easily identified and targeted, and therefore it is not safe for him to return to either Wah Cantt or Parachinar, or any other part of Pakistan.  The representative asserts that references to the risks of harm in relation to the Turi tribe also apply to Shia members of the Bangash tribe, as they were equally ‘formidable opponents’ of the Taliban and other Sunni militants in the conflict in Kurram Agency.

  1. In relation to the applicant’s new claim that he fears harm as he is no longer a practising Muslim, the representative asserts this is of significant concern in light of the ongoing misuse of blasphemy laws in Pakistan against religious minorities.  The representative also raises issues relating to the applicant’s claimed de facto relationship with [Ms A]. 

  2. At the hearing before the current Tribunal, the applicant indicated that his father, mother, step-mother and [younger siblings] are still residing in Wah Cantt.  When asked if he still had a married sister living in Parachinar, the applicant indicated she has now moved to Wah Cantt.  He confirmed he also has an uncle still living in Wah Cantt.  He advised that his elder sister is married to this uncle’s son and she lives with them in a separate house in Wah Cantt.  The applicant indicated his sister’s husband supports his family by [working] in [Country 5].  He said neither his uncle nor his father are working.  The applicant indicated that he supports his father and family financially (when asked, he said his father is now [age] years old).  He indicated he does not have any other extended family living in Wah Cantt.

  3. The Tribunal queried the applicant that he had indicated to the first Tribunal that when the family moved from Parachinar to Wah Cantt his married elder sister had remained behind, living in the house in [Location 1] in Parachinar where his family lived when they moved to Parachinar when he was [age] or [age] years old, which he had indicated his father owned.  The applicant replied that this house was not specifically owned by his father but was jointly owned by the whole family and other paternal uncles and cousins have a share in it.  He said when they moved to Wah Cantt his uncle took ownership of the property.  He indicated this paternal uncle still lives in Parachinar.

  4. The applicant indicated he has a good relationship with his family and is in regular (weekly) contact with them.

  5. The applicant indicated his younger brothers are still at school in Wah Cantt.  He said his younger sisters don’t study or work but just stay at home.  When asked if his father owns the house the family lives in in Wah Cantt, the applicant indicated he does not and they are renting.  He indicated his uncle in Wah Cantt is also renting a home there.

  6. The Tribunal observed that an internet search of Wah Cantt revealed it is a big place (the 22nd largest city in Pakistan with an estimated population of greater than 300,000 people), with a large military base, two small private universities and a large number of colleges in the district, and a very high literacy rate.  The applicant acknowledged this is the case.  The Tribunal queried whether that might be as a consequences of the desire to provide education for the children of service personnel.  The applicant said there are schools and colleges but he was not sure about whether there was an Army Public School (APS).  The Tribunal queried that it would imagine there is a strong security presence, especially following the attack on the APS in Peshawar in Khyber Pakhtunkhwa province in December 2014.  The applicant indicated that is correct.

  7. The Tribunal queried the applicant regarding his comment in his statement of 3 June 2021 that it was difficult for him in Wah Cantt because he does not speak Urdu, observing that he indicated in his protection visa application (at question 12) that he speaks, reads and writes Urdu (as well as speaking Pashtu).  The applicant indicated that while Urdu is the national language he cannot speak it fully.  He indicated he can read a little bit but can only write ‘some things’.

  8. The Tribunal observed that the applicant’s previous representative appeared confused regarding whether the applicant was a member of the Turi or the Bangash tribe, commenting that it understood they are two distinct tribes.  The applicant confirmed that is the case and that he is a member of the Bangash tribe, not the Turi tribe.  The Tribunal noted that, notwithstanding they are two different tribes, country information indicates there are similarities in the situations confronting the Turis, who are an entirely Shia Pashtun tribe mostly from upper Kurram Agency where Parachinar is located, and Shia Bangash, who are also a Pashtun tribe.  The Tribunal noted that the majority of Bangash (60 per cent) are Sunni Muslims who live in central and lower Kurram Agency, such as Sadda in lower Kurram Agency, as the applicant had mentioned in his initial statement.  The Tribunal commented that the situation for those Bangash who are of the Shia faith (40 per cent) is appears to be comparable to that for the Turi tribe, because they, like the Turis, are targeted by the TPP due to their faith and their actions in preventing the Taliban from gaining access to Afghanistan through upper Kurram Agency.  In this context, the Tribunal considers it is relevant that DFAT notes that the TTP and Al Qaeda have gained significant ground in the former FATA, killing many Shia – especially in Parachinar, rendering Turis and other Shia tribes of the former FATA amongst the most vulnerable in Pakistan.  DFAT comments that there was significant violence targeting Shias between 2008 and 2014, including along the Thal-Parachinar road linking Kurram Agency and Peshawar, and that deaths from terrorist attacks in Kurram Agency significantly increased again in 2017, with three significant attacks targeting Shias in Parachinar during the first three months of 2017, resulting in more than 120 people being killed.[6]

    [6] DFAT Country Information Report, 3.13-3.26, 3.92 and 3.109-3.111.

  9. The Tribunal queried the applicant that in his first statutory declaration he stated that Sunnis and Shias lived together peacefully in his home area around Yaqubi village in Kurram Agency) until 2007.  The applicant replied that the problems started even before he was born and that some say they started in the 1980s.  the Tribunal paraphrased the first six paragraphs of his initial statutory declaration, observing that he indicated things were pretty good until a Sunni Sheik, from out of the area who he thought was a Talib, came to the area in around 2007.  He replied that there were occasions of violence before then but he was too young to remember.  The Tribunal queried the applicant that, contrary to his second statutory declaration, in his first he did not indicate that his family moved to Parachinar due to security concerns or that they were IDPs, and that he indicated to the first Tribunal that his father had a house in [Location 1] in Parachinar.  The applicant replied that he did say previously that they moved to Parachinar due to the violence, adding that maybe it was a misunderstanding.

  10. The Tribunal queried the applicant that what he had just told this Tribunal (that his father had shares in a property in Parachinar) is different to what he stated in paragraph 7 of his statutory declaration of June 2021, where he indicated they do not have any house there, only his uncle does, and when they lived there they lived in a rented property.  The applicant commented that he told the previous member that they had a family house in Parachinar but when they left they had no further involvement with that house.

  11. The Tribunal discussed with the applicant country information drawn from the most recent DFAT Country Information Report regarding Shias, particularly Turi Shias, who have sought to relocate to other areas of Pakistan due to the situation in Kurram Agency, as follows (emphasis added):[7]

    [7] DFAT Country Information Report, Pakistan, 20 February 2019, sections 2.7, 3.20-3.26, 3.72, 3.92, 3.99-3.100, 3,104 and 3.106.

    ·It is estimated that Shias comprise between 10 and 15 per cent of Pakistan’s Muslims, who constitute over 96 per cent of the population of 207.7 million people (that is, approximately 20 to 30 million people in Pakistan are Shias).

    ·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 Shia faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shia groups. Turis leaving Kurram Agency tend to relocate to other known Shia areas, irrespective of language barriers. 

    ·Preferred relocation options for Turis are Wah Kant (sic), Islamabad, Rawalpindi, Lahore and Karachi. 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.

    ·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 Shia religion.

    ·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.  Notwithstanding these difficulties, global Turi Shia 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.

    ·Most Pakistani Shia are not physically or linguistically distinguishable from Pakistani Sunnis. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shia Muslims. Some Shia may be identifiable by common Shia names such as Naqvi, Zaidi and Jafri. Similarly, ethnic and tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shia, and significant numbers of Bangash are Shia.

    ·Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools.  Shia traditionally represented a higher proportion of the casualties. Shia continue to face a threat from anti-Shia 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 Shia declared ‘non- believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.

    ·The LeJ has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta and other Shia groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shia and Hazara Shia.’

    ·According to the South Asia Terrorism Portal (SATP), 114 Shias were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with the ISIL, claimed responsibility for many of the attacks.

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

    ·In Punjab, sectarian tensions and violence are more prevalent in the south, and in parts of Gujranwala, Sialkot and Rawalpindi. Conservative madrassas and militant groups are more prominent in southern Punjab, and Sunni and Shi’a communities are more segregated. Shia live throughout Punjab, including in Lahore. Shia and Sunni communities in cities are much more integrated. According to the SATP, three incidents of sectarian violence in Punjab in 2017 killed three people and injured one, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. The largest sectarian attack in Punjab in 2016 targeted Christians. While violence can occur in any part of Punjab, DFAT assesses that Shia in Lahore and Islamabad face a low risk of sectarian violence.

  12. The Tribunal observed that the current DFAT report, issued in February 2019, is now over two years old and commented that in her recent submission the representative had drawn the Tribunal’s attention to reports of increased tensions between the Sunni and Shia communities recently, which had resulted in mass protests.  The Tribunal commented that, in this context, the Tribunal had reviewed recent SATP data regarding terror incidents and fatalities both for Pakistan as a whole and for Punjab (where Wah Cantt in Rawalpindi district is located).  The Tribunal commented that this data indicates that the trend of decreasing incidents has continued through to the most recent data considered, in April 2021, with 8 reported terror incidents in Punjab in 2020, resulting in 16 deaths, and 2 reported incidents in 2021 (to 17 April 2021) resulting in 2 deaths.[8]  The Tribunal commented that while there remains a risk of terror attacks and sectarian violence, the trend of reduced incidents seems to have been maintained despite the reports of increased tensions between the Sunni and Shia communities.

    [8] SATP, Terrorism in Pakistan – Yearly Fatalities, Datasheet – Pakistan, data from 6 March 2000 – 17 April 2021, Terrorism in Pakistan - Yearly Fatalities | SATP

  13. The applicant commented that there is a new movement, the Tehreek-e-Labbaik, which is active all over Pakistan.  He said there have been incidents in Rawalpindi as well.  When queried whether he was referring to Rawalpindi district, in which Wah Cantt is located, or Rawalpindi City, the applicant said ‘all over the area’.  The Tribunal asked the applicant if he could tell it about those incidents, given the country information indicates that there have been relatively few incidents of extremist violence in Punjab province generally in recent years.  The applicant said he is talking about general incidents as when there is an incident they do not discriminate between Sunnis and Shias and anyone could be a victim.  He said Tehreek-e-Labbaik have started violence all over Pakistan following the cartoons published in France.

  14. The Tribunal asked the applicant why he did not mention in his first statutory declaration that the family received threatening letters from Sunnis who had moved to Wah Cantt, and that they moved houses because of this.  He said they received the letters in the house where they lived previously.  He said he did not have copies of the letters so thought he could not mention it.  He added that due to his limited English he did not understand the significance of the claim and because he had no evidence he did not think it appropriate to mention the matter.

  15. In relation to the claimed stabbing of his father, the applicant insisted that the incident occurred.  He said his father got treatment at a private clinic.  When asked, he said people who were nearby took his father to a clinic.  When asked how his father was able to run away from his assailants if he had been stabbed, the applicant said his father was injured but not severely enough that he was not able to move.  When asked what the motive for the stabbing was, and whether anything was said to his father or anything was stolen from him, the applicant said he was not sure.

  16. The Tribunal queried the applicant what he meant by his comments at paragraph 7 of his second statutory declaration that his family are ‘in hiding’.  He replied that because of the violence, they try to protect themselves by not going out and keeping a low profile.  The Tribunal queried why they felt they needed to be in hiding given the country information suggesting there is a large Shia community in Wah Cantt which is a big place with a lot of facilities, the low number of incidents of sectarian violence in Punjab province, the single claimed incident (involving his father) since 2009, his brothers continuing to attend school, and the lack of reports of violence between Sunnis and Shias in Wah Cantonment.

  17. The applicant commented that his brothers go to school within the confines of the Cantonment.  When queried that Wah Cantonment is a very big place with a large population, the applicant agreed that is the case but said they are mainly Punjabis and there are fewer Pashtuns.

  18. The Tribunal queried the applicant about his claimed loss of faith and having his having obtained tattoos, commenting that he had not stated at the first hearing in October 2015 that he had stopped practising his Islamic faith.  The applicant did not respond.  When asked if his family are very religious, he said they are.  He said his parents practised Islam when he was growing up and he practised it along with his family.  He said he prayed five times a day, mostly at home, but occasionally attended the Imambargah on Fridays.  When asked, he said he participated in Ashura processions.  He indicated that he practised his faith in Australia and attended the Imambargah up until 2014.  When asked why he stopped, the applicant said he started drinking alcohol and eating non-halal food.  When queried why he did this, he said he was working as [an Occupation 2] and those things were involved with being [an Occupation 2].  When asked how he was feeling about his faith, the applicant said the religion is still there even though he does not practise it.  When asked if he still prays sometimes, the applicant indicates he does not and hasn’t since 2014.  In this context, the Tribunal asked the applicant again why he did not raise this with the first Tribunal.  He replied that it was not so serious at that time but now he sees the consequences are very serious.

  19. The applicant said he got his tattoos (which are of [specified designs] and are clearly visible on his [body part]) in 2016 or 2017, because others had them.  He added that it is prohibited in Islam and people do not have tattoos in Pakistan. 

  20. When asked if he had discussed these matters with his family, the applicant indicated they are not aware of his change in faith, or that he drinks alcohol and eats non-halal food.  He said his parents have seen his tattoos and are angry about that.

  21. The Tribunal asked the applicant about the nature of his relationship with [Ms A].  He said it is a girlfriend-boyfriend relationship.  When asked what he meant by that, the applicant said they live together in the same house.  The Tribunal asked if it is a group house.  The applicant replied that he lives with [Ms A] and her [age] year old [child].  He indicated [Ms A] is [age]-[age] years of age.  The Tribunal asked the applicant if he considers they are in a de facto spousal relationship.  He replied ‘yes’, and indicated that he considers it has been such since 2014.  The Tribunal asked the applicant why he did not raise his relationship with [Ms A] when he appeared before the first Tribunal in October 2015.  He said it was due to [Ms A]’s personal circumstances.  When queried further he stated she is a [Country 6] citizen and is a Buddhist.  He said his parents are aware of the relationship and were quite angry because she is not of their religion.  The applicant confirmed [Ms A] is an Australia permanent resident and that she has indicated she would not go to Pakistan with him.  When the Tribunal observed that she could sponsor him for a partner visa if she wished, the applicant said that is something for her to consider, adding that they had not talked about it.

  22. The Tribunal commented that it found [Ms A]’s statement read more like a character reference rather than a statement from a life partner.  The applicant commented that when the decision by the first Tribunal was referred to the Federal Circuit Court he did not have any financial support and was trying to get legal aid support but ultimately was denied this.  He said [Ms A] decided to bear his costs which were $5,000-$6000.  The Tribunal queried why she had written such a bland supporting statement and why he had not nominated her as a witness to give evidence at the hearing.  He indicated that his representative did not nominate her as a witness.  The Tribunal asked the applicant if he could provide the Tribunal with further evidence of their relationship.  The applicant undertook to do this.

  1. The Tribunal asked the applicant why he thought he might be affected by Pakistan’s blasphemy laws.  The applicant was hesitant in his response but commented that he has heard about blasphemy laws on the news and people protested against the blasphemers and burnt property.

  2. The Tribunal asked the applicant about his comments regarding the management of COVID-19 in Pakistan.  He commented that they are in lockdown at the moment and it has a significant impact because it is difficult for people to support themselves.  The Tribunal commented that many countries, including Australia, have implemented lockdowns, but these are not acts done with the intention of causing people to suffer serious or significant harm.  The applicant indicated that he understands that.

  3. The applicant said he has two issues, the first is that he is from the Kurram Agency and his name, [Surname 1] makes it difficult for him because he stands out as a Shia because of that.  He commented that Shia still suffer from the Taliban and potential crackdown by the army on the Taliban.  He added that he has seen talk in the news that the US may have a military base in Kurram Agency.  The Tribunal commented that it had not heard of that and it would seem unlikely both that the US would want to do that or the current Pakistani Prime Minister would be interested in having a US base on Pakistani territory.  The applicant indicated that the second issue is that the changes in his religious practises put him at great risk.

  4. When queried, the applicant indicated he was not sure where the suggestion that he could be perceived both as pro-US and Pro-Iran (put forward in the representative’s submission of 4 June 2021) came from.

  5. When queried regarding the assertion that he faces a real risk of harm due to being a failed asylum seeker and long term resident in a Western country, given the country information on these matters put to him by the first Tribunal, the applicant commented that his case is different and unique because most people who return to Pakistan after time in the West still practise their religion.

  6. At the conclusion of the hearing, the applicant’s representative noted the Tribunal had acknowledged that the DFAT report (issued in February 2019) is almost two and a half years old now.  She commented that while the report states that there is a trend of decreasing harm against the Shia community, similar observations had been put forward in the past regarding the Hazara Shia community that were not borne out subsequently.  The representative asserted that there have been more recent incidents of sectarian violence against the Shia community which cumulatively may indicate a trend of increasing incidents.  She indicated that there have been anti-Shia protests in Rawalpindi and other major cities and it is clear that the Pakistani Taliban are aware of where the community is located in Rawalpindi.  She indicated she will address this in an additional submission.

  7. A post-hearing submission was received on 24 June 2021.  This included a further statutory declaration by the applicant, a further statement from [Ms A], a letter of support from [Ms C], supporting documents and photographs, and a further legal submission.

  8. Relevant additional matters raised in the statutory declaration of 24 June 2021 by the applicant are summarised as follows:

    ·Schooling was one of the reasons his family moved to Parachinar but the security situation was the main one.

    ·The house in Parachinar was a joint family property.  When he said they were ‘renting’ he meant everyone who was living there, from the different families, had to pay for their own family.

    ·He did not mention the threat letters in his entry interview because that was a brief interview for identification purposes.

    ·He and [Ms A] have been in a serious relationship since 2014.  She is a very private person and does not discuss her relationship that much.  He is guardian of and has a good relationship with her [child].  His family are not happy with the relationship and if he returns to Pakistan they will force him to marry someone else.

    ·He did not raise his claims about being a non-practising Muslim at the first Tribunal hearing because the change was quite early for him at that stage.  As time went on it became easier for him to be confident about who he was.

    ·The Shia Turi tribe were relocating to Wah Cantt because they perceived it to be safe but after the killing of two Turi tribe members further relocation stopped.  There is no interaction on a social or community level because people do not wish to disclose their identities.

    ·Wah Cantt is a small mostly residential town.  There are no business or job opportunities available in the town and living expenses are extremely high.  The majority of the residents are Sunnis and they have a religious mentality.  While the town is under the management of the military authority, there are no proper security measures in place outside the town.  His family can’t do any job or business as they can’t go outside the town due to security concerns.  He has attached details of money he sends to his family on a regular basis to support them at Wah Cantt.

    ·He will also face harm in Wah Cantt as he is not a practising Muslim.  The Shias in Wah Cantt usually gather at religious events, especially during Muharram.  If he does not do that he will be noticed more.  He will also be noticed because of his tattoos.

  9. In her further statement, [Mr A] indicates that the applicant is part of her family in Australia and is also guardian of her [child].  She indicates the applicant takes her [child] to school, to the doctor and to attend sporting events.  She also comments on the work he does in the community.

  10. In her statement, [Ms C] indicates she has known the applicant and [Ms A] for almost two years and can verify that they are living together as partners.

  11. The applicant provided supporting documents indicating that he and [Ms A] are living at the same address and that he is providing financial support to his family in Pakistan.  A number of photographs were provided of the applicant and [Ms A] together in a number of different settings, including holidaying together.

  12. In the further submission the representative asserted that, while there may be Shia enclaves within Wah Cantt, which reduces the level of societal discrimination faced, this increases the risk the applicant will be targeted due his being a Bangash Shia, citing the targeting of the Hazara Shia community in Quetta, Balochistan.  She comments that, due to his un-Islamic lifestyle, the applicant is also more likely to attract adverse attention compared to other Turi or Bangash Shias in the area.  She cites a number of commentators expressing concern regarding the activities of Tahreek-e-Labbaik, described as a radical Berelvi group, which is insisting on the strict implementation of Pakistan’s blasphemy laws; heightened anti-Shia rhetoric expressed through major street protests involving ultra conservative political forces, including the extremist ASWJ and other proscribed terror groups; and geopolitical developments including Shia and Sunni fighters returning from Syria, and developments in Afghanistan following the US withdrawal, resulting in the return to Pakistan of TTP fighters and the extremist Haqqani Network.  In relation to the applicant’s fear of harm as a non-practising Muslim, the representative notes that DFAT has indicated that, while religious conversion from Islam (apostasy) is not illegal, it is often seen as blasphemous and can result in prosecution under blasphemy laws, or familial or communal violence.[9]

    [9] DFAT Country Information Report, Pakistan, 20 February 2019, section 3.81.

    Findings and reasons

    Applicant’s identity

  13. On the basis of the copy of the applicant’s Pakistani passport provided to the Department,[10] and noting the delegate’s findings in this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be. Accordingly, the Tribunal finds that Pakistan is his country of nationality for Refugees Convention purposes and is his ‘receiving country’ for complementary protection purposes.

    Issues

    [10] See the Departmental file.

  14. The issues in this review are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm for one or more of the reasons enumerated in the Refugees Convention definition if he was to return to Pakistan and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.

  15. For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.

    Credibility

  16. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

  17. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

  18. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

  19. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

  20. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.

    Assessment of claims

  21. The Tribunal accepts that the applicant is an ethnic Pashtun of the Bangash tribe who was born and grew up in Kurram Agency (part of the then Federally Administered Tribal Areas or FATA), in Pakistan.  The Tribunal accepts that while in Pakistan he identified as being of the Shia faith.

  22. The Tribunal accepts that in 2009 the applicant and his immediate family members relocated to Wah Cantt in the Rawalpindi district of Punjab province, Pakistan due to security concerns in Kurram Agency at that time.  The current Tribunal, like the previous Tribunal, does not accept that there is evidence there was a bomb blast in 2009 near [Location 2] in Parachinar, where the applicant’s uncle had a shop at which the applicant worked, which was the catalyst for the family moving.  Noting the country information cited above regarding the security situation in Kurram Agency from 2008-2014, and that there were fatal bomb blasts targeting the Shia community in 2007 and 2008, the Tribunal does accept, however, that the dangerous security situation in Kurram Agency targeting the Shia community there was the reason the family moved to Wah Cantt.  The Tribunal accepts that the applicant’s experiences in Parachinar would have caused him to fear for his safety in Pakistan at that time.

  23. The Tribunal notes the DFAT advice that the security environment in Kurram Agency deteriorated again in 2017 and DFAT’s current assessment that Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups including the TPP, because of their Shia faith.  The Tribunal considers that this assessment would apply equally to Bangash Shias, who also opposed the TPP and other Sunni militants in Kurram Agency.  In this regard, the Tribunal notes that the applicant’s family have not returned to Kurram Agency and remain living in Wah Cantt.

  24. The Tribunal notes the DFAT advice that Wah Cantt is one of the preferred locations for Turi Shias (and by extension Bangash Shias) relocating from Kurram Agency.  The Tribunal also notes the advice that Turis (and by extension, Bangash Shias) tend to live in enclaves with like others, mitigating societal discrimination, and that outside these areas they face a moderate risk of societal discrimination based on their Shia religion.

  25. The applicant claims that, while nothing happened to him over the period from 2009-2012 while he lived in Wah Cantt, he was unable to secure employment and was fearful of being harmed, particularly by Sunni Muslims opposed to Shias from Kurram Agency who had also relocated to Wah Cantt from Kurram Agency.  He indicated that he rarely left the family home because of his concerns regarding the security situation.

  26. The Tribunal accepts that the applicant may have been unable to gain employment while he was living in Wah Cantt.  In this regard the Tribunal notes that he was [age] years of age at the time the family relocated in 2009, had only undertaken [number] years of schooling and his only work experience was assisting his uncle in his uncle’s [store].  The Tribunal also notes the DFAT advice cited above indicating that Shias relocating from Parachinar and Kurram Agency face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes.

  27. Like the previous Tribunal, the current Tribunal found unconvincing the applicant’s claim that Sunnis from Kurram Agency left threatening notes at their door and that this was the reason for the subsequent claim that they moved-house within Wah Cantt.  The Tribunal considers if this was the case, the applicant would have raised it in his initial statutory declaration, regardless of him not having copies of the claimed letters.  The Tribunal also does not accept the applicant’s claim that he was advised, just a few days before the hearing with the first Tribunal in October 2015, that his father was stabbed by Sunnis while undertaking some [commodity] business in Wah Cantt, finding the applicant’s evidence on this matter was vague and unconvincing, particularly in relation to how his father was able to get away from his claimed assailants after being stabbed.

  28. The applicant claims that his family live in hiding in Wah Cantt but the Tribunal considers this is an exaggeration, noting that his younger brothers have been able to attend school there and the applicant has not reported any further incidents targeting the family.

  29. The Tribunal does accept, however, the assertion that living in an enclave, while mitigating the risk of societal discrimination, heightens the risk of a particular community (in this case Turi and Bangash Shias) being targeted for harm at that location or if they leave the enclave.  In this regard, the Tribunal notes DFAT’s advice that, while most Pakistani Shia are not physically or linguistically distinguishable from Pakistani Sunnis and identity documents do not indicate whether someone is a Sunni or a Shia Muslim, some Shia may be identifiable by common Shia names and ethnic and tribal names can reveal a person’s ethnicity or tribal affiliation, and that nearly all Turis are Shia and significant numbers of Bangash are Shia.  The Tribunal accepts, therefore, that there is a greater risk of the applicant being targeted for harm should he return to Pakistan because he could be more readily identified as a Shia from the Bangash Pashtun tribe, than is the case for most Shia in Pakistan.  The Tribunal finds this is particularly significant because the overwhelming majority of Pashtuns are Sunni Muslims.

  30. The Tribunal also notes DFAT’s advice that, because the support base of the TTP is primarily Pashtun, local sources claim that military operations and the Nation Action Plan (NAP) to counter terrorism have led to official discrimination and racial profiling in terrorism-related arrests, with the Punjab government having issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’  DFAT indicates that Pashtuns migrating within Pakistan report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR 500,000 (AUD 5,500) on the threat of being listed as a terrorist.  Pashtuns also report frequent blocking of their Computerised and Smart National Identity Cards (CNICs and SNICs) when relocating, which impedes access to property and assets.  DFAT assesses that Pashtuns face a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab.[11]  While this has eventuated because the majority of Pashtuns are Sunni, given it may not be readily apparent that the applicant is a Shia, the Tribunal finds that it can’t rule out the possibility that the applicant might be impacted by such profiling and harassment due to his Pashtun ethnicity (and less fluent Urdu language skills).  The Tribunal finds this raises the level of risk that the applicant would come to the adverse attention of authorities in relation to the other matters discussed below.

    [11] DFAT Country Information Report, Pakistan, 20 February 2019, sections 3.8-3.12 and 5.32.

  31. Notwithstanding these considerations, the Tribunal finds that there is not substantial evidence indicating an upswing in sectarian violence targeting the Shia community (including the Turi and Bangash Shia communities), particularly in Punjab province.  While the Tribunal accepts the evidence put forward by the applicant and his representative that there has been a very concerning increase in anti-Shia sentiment and rhetoric as well as concerning geo-political developments, this does not appear to have translated to-date into increased sectarian violence targeting Shias, including those living in Wah Cantt.

  32. As noted above, however, in this case the applicant maintains that he faces two issues – the first being that he is a Bangash Shia from Kurram Agency and is identifiable as such; the second being that the changes in his religious practises put him at great risk.

  33. In relation to the applicant’s religious practices, after carefully considering all the available evidence, the Tribunal accepts that the applicant has abandoned the formal practise of his Shia faith, has adopted non-Islamic practices such as drinking alcohol, eating non-halal and haram food and having tattoos, and is in a genuine de facto relationship in Australia with a [Country 6] Buddhist woman.

  34. A 2016 UK Home Office Country Information and Guidance report on interfaith marriage in Pakistan found that it is illegal for a Muslim man in Pakistan to marry a Buddhist woman.  The report commented that couples in such illegal unions may be deemed to be having sexual relations outside of marriage (Zina), which is considered an offence and punishable by imprisonment for up to five years and a fine.  The report indicates that there have been reports of some couples in mixed faith relationships receiving threats, being attacked, or facing pressure to separate by unaccepting families or clerics, or religious extremists.  The report indicates some couples may be harassed by the police and possibly arrested for engaging in pre-marital sex or adultery.  The report states that arranged marriages are the traditional norm in Pakistan and would usually be with a partner from the person’s own religious and ethnic community, and couples who transgress from family expectations (and enter into ‘love’ marriages) may be subjected to significant pressures, threats, and violence from their families, and may face becoming victims of ‘honour’ crimes.[12]

    [12] UK Home Office Country Information and Guidance, Pakistan: Interfaith marriage, January 2016.

  1. The Tribunal accepts the evidence that ‘honour’ crimes are a feature in Pakistan, particularly in areas where traditional Pashtun tribal justice systems called jirgas (tribal councils responsible for settling disputes by consensus in accordance with the Pashtunwali) continue to operate.[13]

    [13] DFAT Country Information Report, Pakistan, 20 February 2019, section 3.203-3.205.

  2. The Tribunal finds that the evidence indicates that, as a person who would be identified as a Pakistani Pashtun Shia Muslim, the applicant and [Ms A], a [Country 6] Buddhist, would face a real risk of serious harm if they sought to live in Pakistan as de facto spouses.  The Tribunal accepts the evidence that [Ms A] would not travel to Pakistan or convert to Islam.

  3. The Tribunal observed that, as an Australian permanent resident, [Ms A] would be able to sponsor the applicant for migration to Australia on a partner visa.  The Tribunal accepts the advice from the applicant’s representative that he would be barred from applying for a partner visa while he remains in Australia.  In this regard, the Tribunal has considered whether it might be an option for the applicant to return to Pakistan for a time and be sponsored by [Ms A] as his partner.  For the reasons discussed below, however, the Tribunal has concluded that the applicant would also face a real chance of suffering persecution involving serious harm should he return to Pakistan by himself.

  4. The Tribunal notes DFAT’s advice that a wide range of local and international commentators reported growing religious intolerance in Pakistan in 2018.  DFAT states that political leaders are reluctant to speak against religious discrimination, and those who have spoken have faced violence (including accusations of blasphemy).  DFAT stated that during the 2018 election campaign, political discourse became more religious, exacerbating the gap between the religious majority and minorities.  DFAT also notes that religiosity is increasing among Pakistan’s youth.  DFAT cites the United States Commission on International Religious Freedom (USCIRF) as having designated Pakistan as a ‘country of particular concern’.  USCIRF observed increased incitement in the media of intolerance against religious minorities; found the government failed to provide adequate protection to religious minorities and itself perpetuated systematic and egregious violations of religious freedom; and observed that religious minorities in Pakistan, including Shias, continued to face societal discrimination and attacks from extremist groups.[14] 

    [14] DFAT Country Information Report, Pakistan, 20 February 2019, sections 3.77-3.78, 3.85 and 3.144.

  5. the Tribunal notes DFATs comments that Pashtun-majority areas of Pakistan have historically experienced high levels of tribal, intra-communal and politically motivated violence, and a high concentration of military operations.  This is in the context of the general security environment in Pakistan which DFAT describes as complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan.  The Tribunal notes DFAT’s advice that, while there has been a nine-year downward trend in terrorist attacks, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, and that while Khyber Pakhtunkhwa province reported the highest number of terrorist attacks in 2018, militant attacks can occur anywhere in Pakistan.[15]

    [15] DFAT Country Information Report, Pakistan, 20 February 2019, sections 2.66-2.71, and 3.7.

  6. The Tribunal also notes DFAT’s advice that 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 continue, and DFAT’s assessment that cycles of violence are likely to continue until these conditions change.  DFAT comments that the state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country, and that societal intolerance and religious extremism appear to have increased.[16]

    [16] DFAT Country Information Report, Pakistan, 20 February 2019, sections 2.72 and 2.82.

  7. The Tribunal finds the country information supports the contention that Pakistan is afflicted by religious conservatism and intolerance and the presence of active militant groups.  The Tribunal finds that it cannot find that the chance the applicant would be subjected to persecution involving serious harm on return to Pakistan, on the basis of his actions in Australia in entering into an inter-faith and inter-ethnic de facto relationship with a non-Muslim woman, as well as his status as a Bangash Shia Pashtun who has ceased to practise his Islamic faith, is remote.

  8. The Tribunal finds that if the applicant were to return to Pakistan alone, his actions in Australia would still likely be known or become known to the broader community, and would likely result in adverse attention from some individuals and groups in the broader community.  The Tribunal accepts that it is likely the applicant would come under strong pressure from his family to enter into an arranged marriage on his return to Pakistan, as a condition of him being accepted back into the family fold.  The Tribunal considers the applicant’s refusal to do this would likely result in him being ostracised by his immediate family, which would make the applicant more vulnerable to harm from the broader community.

  9. The Tribunal also finds that the applicant’s abandonment of the practise of his Islamic faith, as well as his de facto relationship in Australia with a [Country 6] Buddhist women, could result in him being labelled a Murtad and, as indicated by DFAT, result in him being seen as blasphemous, which can result in prosecution under blasphemy laws or lead to familial or community violence.[17]  The Tribunal accepts that the applicant’s tattoos heighten the risk that the applicant will be questioned about his beliefs and adherence to Islamic tenets, increasing the risks he faces in relation to becoming a target of extremists.

    [17] DFAT Country Information Report, Pakistan, 20 February 2019, sections 3.81-3.89.

  10. Accordingly, the Tribunal concludes that, when his individual circumstances are considered cumulatively, there is a real chance the applicant would suffer persecution involving serious harm from religious and/or political extremists, should he return to Pakistan. The Tribunal considers the harm would be as consequence of the applicant’s Pashtun ethnicity (race); his Bangash ethnicity (race); his imputed Shia religion; his imputed anti-Islamic religious opinion; his imputed opposition to the TPP and other Sunni militant groups; and his membership of particular social groups comprising people who have entered into inter-faith and/or inter-ethnic ‘love’ relationships. The Tribunal finds that these are the essential and significant reasons for the harm and that the persecutory conduct feared by the applicant is systematic and discriminatory.

  11. The Tribunal finds that the risk of harm to the applicant exists across all areas of Pakistan.

    Availability of state protection

  12. While DFAT comments that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.  DFAT indicates 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.[18]

    [18] DFAT Country Information Report, Pakistan, 20 February 2019, sections 5.1-5.2.

  13. In relation to honour crimes, DFAT comments that the Human Rights Commission of Pakistan reported in 2017 that local authorities cooperate in enforcing the verdicts of jirgas, that these can include honour killings, mutilation and the giving away of girls and young women to settle blood feuds or land disputes, and that many heads or members of jirgas are elected members of local government, provincial assemblies or federal parliament.[19]

    [19] DFAT Country Information Report, Pakistan, 20 February 2019, section 3.203.

  14. On the information before it, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities 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. Therefore, the Tribunal finds that, considered cumulatively, the applicant faces a real chance of persecution due to his Pashtun ethnicity (race); his Bangash ethnicity (race); his imputed Shia religion; his imputed anti-Islamic religious opinion; his imputed opposition to the TPP and other Sunni militant groups; and his membership of particular social groups comprising people who have entered into inter-faith and/or inter-ethnic ‘love’ relationships, should he return to Pakistan now or in the reasonably foreseeable future.

  15. 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

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

    Paul Windsor
    Member


    ATTACHMENT A   Relevant law

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

    Refugee criterion

  18. 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).

  19. 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.

  20. 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.

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

  22. 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.

  23. 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.

  24. 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.

  25. 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.

  26. 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.

  27. 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

  28. 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’).

  29. ‘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.

  30. 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.

    Member of the same family unit

  31. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.

    Section 499 Ministerial Direction

  32. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken 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.



SATP, Terrorism in Pakistan – Yearly Fatalities, Datasheet – Punjab, data from 6 March 2000 – 17 April 2021, Terrorism in Pakistan - Yearly Fatalities | SATP

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