2015134 (Refugee)

[2022] AATA 1124

2015134 (Refugee) [2022] AATA 1124 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015134

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Joseph Lindsay

DATE:4 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 4 March 2022 at 4:06pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Sunni Muslim perceived to have converted to Shia Islam because of association with Shias – imputed political opinion – worker for foreign-funded projects perceived to be Westernised and progressive – threats and relocation – father killed in targeted attack – inconsistent evidence about religious affiliation and practice – now Shia – voluntary return to home country – country information – cumulative risk profile – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who are citizens of Pakistan, applied for the visas on 23 January 2014 and the delegate refused to grant the visas on 1 April 2015. The applicants attended a virtual (electronic) hearing with the Tribunal on 5 August 2021 and 25 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

4. 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).

5. 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.

6. 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’).

7. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Reconsideration by Tribunal

8. This matter has a long history. As indicated above, the applicant applied for the visas on 23 January 2014 and the delegate refused to grant the visas on 1 April 2015. The applicants appealed the delegate’s decision to the previous Tribunal, who affirmed the delegate’s decision. The applicants appealed the previous Tribunal’s decision to the then Federal Circuit Court of Australia, who remitted the case back to the Tribunal for reconsideration. Accordingly, this case has been considered afresh by a separate Tribunal member.

   Claims for protection

9. In their protection visa application, the applicants made the following claims for protection. The primary claims were made by [the first applicant]. [The first applicant] claimed he was harmed in Pakistan and that he left Pakistan to avoid being subjected to serious harm. One aspect of [the first applicant]’s claims is that he thought he was at risk of harm because people in his community thought he had converted to Shia Islam, when in fact he is a Sunni Muslim.

10. Another aspect of [the first applicant]’s claims is that he was threatened by Baluch people when he worked for [Employer 1] and [Employer 2] which were [Country] Aid funded projects. He indicated that as a result of these threats, he resigned from his job and moved from Baluchistan to Karachi. He indicated that when he was in Karachi he received threatening phone calls, so he resigned from that job and moved to Quetta. He then moved to Buneer, but then he was threatened again and so returned to Quetta where he worked for “[Employer 3].” He stated he then transferred to Islamabad and then to Peshawar.

11. [The first applicant] indicated that around the time Osama Bin Laden was killed, tensions against foreign affiliated organisations in Pakistan increased. [The first applicant] indicated that, as a result of concerns about threats from extremists, he left Pakistan. [The first applicant] stated that his family joined him in Australia in 2012. However, [the first applicant] stated his wife and children returned to Pakistan to see their family members. [The first applicant] also indicated that he himself returned to Pakistan in June 2012 to see family members, but then he returned to Australia about one month later.  

12. [The first applicant] claimed that after he returned to Australia, a police officer told his father in Pakistan that his father was at risk of harm due to [the first applicant]’s work with international organisations, and also due to his family’s long association with Shia Muslims. [The first applicant] indicated that he then returned to Pakistan again in order to protect his family. [The first applicant] stated that he tried to move his parents and siblings to Lahore and Islamabad but they did not have the resources to move. [The first applicant] said he then brought his wife and children back to Australia.

13. In addition to his work with international organisations, and also due to his family’s long association with Shia Muslims, [the first applicant] stated that he thought that because of his Punjabi background that Baluch people might also want to harm him. [The first applicant] stated that another reason could be that due to his “affiliation with the West” and his “belief in liberal and progressive ideologies” that he would be harmed by extremists. [The first applicant] expressed his concerns about adverse attention he might receive due to an article he wrote in 2010 that was published in [a] Newspaper about the situation for [workers] in Baluchistan. [The first applicant] indicated that he believed the Pakistani authorities could not protect him, and that there was nowhere in Pakistan he could move to in order to seek safety.

14. In the hearing, the Tribunal spoke with [the first applicant]. [The first applicant] spoke about his educational background. He said he was born in Quetta in Pakistan on [Date]. He said he got married [in] 1997 to his spouse, [the second applicant].

15. [The first applicant] said he has completed a Master of [Subject 1]. He said he started a job in 1995, which was [an International organisation] funded project. He said it was part of a Baluchistan government [program]. He said he was part of [a project]. He said he travelled all over Baluchistan. He said that he has worked for a range of other organisations, including [Employer 3] and [Employer 4]. He said he has completed a range of courses, including a Master of [Subject 2] from [an Australian] University.

16. The Tribunal put to [the first applicant] that there had been a significant lapse of time since he had first made his protection claims. In respect to his key claims, [the first applicant] said his main concerns were still in respect to his involvement in Shia events and ceremonies in Pakistan, as well as his previous work with international organisations including in respect to women’s [issues]. He said he travelled extensively with his work when he was in Pakistan. He said he was also concerned about his background as a Punjabi.

17. [The first applicant] then claimed that he is now a Shia, and he has been practising the Shia faith in Australia. He claimed that his wife was a Sunni but after they married she started practicing the Shia faith with him. [The first applicant] said all three of his children are Shia and practice the Shia faith. However, he said he was never harmed when he was in Pakistan.

18. The Tribunal discussed the applicant’s claim that he was a Shia but noted he stated on his protection application that he stated he was a Sunni Muslim. In response, [the first applicant] said his father was a Sunni and his mother was a Shia. [The first applicant] said he has always been a Shia Muslim.

19. [The first applicant] claimed that he practiced the Shia faith when he was in Pakistan as well as in Australia. [The first applicant] spoke about his experiences practicing the Shia faith, including attending the Imam Bargah and attending Shia processions.

20. When asked if anything in particular occurred in Pakistan that made him feel fear due to his Shia faith, [the first applicant] indicated he felt a general fear. However, he said he was never physically harmed. [The first applicant] indicated that Shia people generally in Pakistan are in danger.

21. [The first applicant] said police officers came to his house in Pakistan and told him to move. [The first applicant] referred to his brother who used to work for [a western employer]. He said his brother and his brother’s friend, [Mr A], used to go to the factory together. He said the local police told his brother and his brother’s friend that their names were on a “hit list.” He said he told his brother to leave the job. He said if his brother did not leave the job he might have been killed.

22. In respect of his own warning from the police, [the first applicant] said the police came to his house a number of times, the last time being in 2012. [the first applicant] then said [Mr A] was killed, but he could not recall when that happened. When asked why he went back to Pakistan given his claim that he feared harm in returning to Pakistan, [the first applicant] said he went back to Pakistan to bring his family to Australia. [The first applicant] said that back in 2012, his father was warned by the police due to his practice of the Shia faith that they should leave. [The first applicant] said he took the opportunity to bring his family to Australia. When the Tribunal put to [the first applicant] that he decided to take the risk of returning to Pakistan, [the first applicant] said “for your family you have to take a risk.” [The first applicant] indicated he was worried about the risk to his brother. [The first applicant] said that if something had happened to him in Pakistan, he would not be speaking to the Tribunal.

23. In respect to his work in Pakistan, [the first applicant] said he received threatening phone calls. He said he got a phone call and the person said: “we know where you work and we know where you are.” However, he could not remember the exact date or year the phone call happened, but it could have been in 2009.

24. When asked about what incidents happened to him due to his work in Pakistan, [the first applicant] said the main issue was that he received phone calls and then left that job. He said he then moved to Karachi with his in-laws. He said he started working in Karachi but three months later he got a phone call, and then he ran away from that job as well. He said he moved again and received another threatening phone call. [The first applicant] indicated that, whoever these people were, they had his mobile phone number. [The first applicant] indicated that he did not know who they were or what they wanted, but they were just ringing his phone threatening him. He also said there were “motorbike people chasing us from a long route.” He said whenever he left the house in Quetta, he felt like he was always being followed by different types of people.

25. The Tribunal put to [the first applicant] that he held three Masters degrees and he appeared to have the ability to provide clear, concise information. The Tribunal put to [the first applicant] that the information he gave the Tribunal appeared to be vague.

26. [The first applicant] said the first incident was when he was working for [Employer 2] in Quetta in 2009. He said it was then that he received the first threatening phone call. He said the second incident was when he got a phone call saying “we know where you are.” He said as a result of this phone call he called his wife and told her that they were all going to leave Karachi. He said of the phone calls he got, that they did not talk about a specific matter and he was just worried. He said they stopped going out of the house and he kept his children home from school. He said he felt a constant feeling of fear.

27. The Tribunal had to continually prompt [the first applicant] to speak to the specific incidents he claimed happened to him. He said the fear he felt did not let him do the things in life he wanted to do, and that it affected his work. When asked how his experiences affected his work, [the first applicant] said the NGOs in Pakistan are considered to be against Islam and against women’s rights.

28. The Tribunal put to [the first applicant] that despite all of the events, and the fear he claimed to have, he went back to Pakistan. In response, [the first applicant] conceded that he did go back to Pakistan but that he then got his family and came back to Australia. [The first applicant] then said that his father was assassinated. When asked why he believed his father had been assassinated, [the first applicant] said that his brother had a corner shop and his father would sometimes go to the shop. However, [the first applicant] said that, while he did not know exactly what happened, he was told that a little child came to the shop who saw his father lying down on the floor. [The first applicant] said he thought his father was killed. When asked if there was any documentary information in respect to this claim, [the first applicant]’s representative said that the documentation has been given to the previously constituted Tribunal. In any event, [the first applicant] said that his mother did not agree to reporting the matter to police but that a death certificate was issued.

29. The Tribunal referred to the death certificate of [the first applicant]’s father who died [in] July 2014. The Tribunal noted that the certificate said “target killing.” [The first applicant] said that he had not read the document closely. [The first applicant] said he was the one who provided the document to the Tribunal. The Tribunal put to [the first applicant] that there was a death certificate that said “target killing” but there had been no report made to the police. [The first applicant] said they did not want to create trouble for his brother and that was why they did not make a report to the police. He said his brother is still in Quetta. [The first applicant] said that while his brother was alive and well, he was living in fear.

30. The Tribunal referred to an email dated 7 May 2009 in respect to a phone call. [The first applicant] indicated it was a record of the phone call incident. The email referred to a person named “[Mr B]” who [the first applicant] said was a security adviser. The email stated that [the first applicant] called [Mr B] and shared the entire situation. [The first applicant] said that [Mr B] was a retired army [Officer] and [a] security head. When asked what [Mr B did for him, [the first applicant] said he did not do anything except told him that he should stay at home and then he should resign. When asked to confirm that the security adviser simply told him to resign, [the first applicant] said “yes.” However, [the first applicant] could not recall when he resigned from his job. [The first applicant] then said [Mr B] did not tell him to leave his job, but it was someone else who told him to leave his job.

31. The Tribunal then referred to a letter from [Mr C] indicating that [the first applicant] and his family are Shia Muslims.

32. The Tribunal then referred to a handwritten letter in English dated 11 August 2015 from the applicant’s brother in Quetta who is still alive and well. [The first applicant] said that the letter was given to the Pakistani police by his younger brother. The letter is a request for a “security application.”

33. The Tribunal referred to another letter dated [July] 2015. The letter appears to be a letter from the Pakistani authorities (the Deputy General Inspector of Police in Quetta) in respect to [the first applicant]’s brother’s security application. [The first applicant] said that the letter shows the Pakistani authorities knew about the situation but was doing nothing about it. However, the letter indicated that it was a request for information.

34. The Tribunal referred to another letter dated 12 October 2012. The letter is from the applicant’s brother requesting assistance from the Pakistani authorities.

35. The Tribunal put to [the first applicant] that he had provided information showing that his brother had engaged with the Pakistani authorities, to which [the first applicant] said “yes.” The Tribunal put to [the first applicant] that it looked like that the Pakistani authorities were providing assistance to [the first applicant]’s brother. In response, [the first applicant] indicated that the Pakistani authorities just wanted to give the appearance that they had helped his brother.

36. When asked what he wanted the Tribunal to know in respect to the witnesses he wanted the Tribunal to speak to, [the first applicant] said the three witnesses would be able to provide evidence that [the first applicant] and his family had been practicing their Shia faith since being in Australia. [The first applicant] said that [Ms D] had also worked for an NGO, and that he met [Ms D] when they were both in Quetta.

1. The Tribunal spoke to [the second applicant], who said she did not have anything further to add, and her claims were the same as her husband’s claims but felt she and her children were always being followed by different sorts of people. When asked who she was primarily afraid of, [the second applicant] said there was no one in particular in Pakistan that she was afraid of.

2. The Tribunal put to [the first applicant] that the Tribunal was prepared to accept that he and his family has been attending Shia ceremonies in the last five years in Australia. Accordingly, [the first applicant] indicated that he did not require the Tribunal speak to the witness, [Mr E].

3. The Tribunal then spoke to the witness, [Mr F]. [Mr F] gave evidence that he knew [the first applicant] from his time in Pakistan working for an NGO between the period 2009-2010. [Mr F] indicated that he was aware of [the first applicant]’s background as a Shia and as a Punjabi. [Mr F] indicated that he was a Shia and he was at home in Quetta.

4. The Tribunal then spoke to the witness, [Ms D]. [Ms D] said she had already been granted protection as she had threats to her life when she worked in Pakistan for an NGO, and she also said she was a Shia as well as being a Hazara. However, [Ms D] said she herself did not witness any threats to [the first applicant].

5. The Tribunal spoke to [the first applicant] about the concerns he raised about the Taliban in Afghanistan and their treatment of Shia people in Afghanistan. The Tribunal spoke to [the first applicant] about the concerns he raised about the impact of the Taliban takeover of Afghanistan and the potential impact on the situation in Pakistan, particularly in respect to the treatment of Shia people in Pakistan. 

6. The Tribunal spoke to [the first applicant] about the information in the DFAT Country Information Report for Pakistan dated 20 February 2019. The Tribunal spoke to [the first applicant] about the more recent country information that his representative had provided to the Tribunal in the submission dated 15 October 2021, particularly in respect to recent attacks on Shia people. However, the Tribunal noted that there was still a distinction between circumstances in Afghanistan and circumstances in Pakistan.

7. The Tribunal asked if there were any barriers to relocation in Pakistan if he went back in the foreseeable future, given he had done it before. In response, [the first applicant] said he tried to relocate previously but he still received the phone calls and threats.

   ANALYSIS AND FINDINGS

8. The Tribunal has carefully considered the applicants’ claims and the evidence available to the Tribunal in respect to those claims.  

9. In considering the claims and evidence above, the Tribunal makes the following findings. The Tribunal accepts that the applicants are Shias. The Tribunal accepts that [the first applicant] worked for NGOs in Pakistan. The Tribunal accepts that [the first applicant] occasionally received threatening phone calls when he was in Pakistan, but the Tribunal does not accept that the phone calls represented an overly serious risk to him at the time. The Tribunal finds that neither [the first applicant], or his wife or children, were ever harmed when they were in Pakistan, or in any of the times that they returned to Pakistan.

10. The Tribunal is not satisfied that the evidence reasonably supports a finding that [the first applicant]’s brother’s friend, [Mr A], died as a result of reasons related to [the first applicant]. Accordingly, the Tribunal does not accept that [the first applicant]’s brother’s friend, [the first applicant], died as a result of reasons related to [the first applicant].

11. The Tribunal does not accept that [the first applicant]’s father’s cause of death was because he was a victim of a “target killing” or that [the first applicant]’s father was killed by anyone who may have wished to cause him harm. The Tribunal is not satisfied that the evidence supports such a finding. If [the first applicant]’s father was the subject of a “target killing” the Tribunal would have reasonably expected that such a matter be reported to the Pakistani authorities, but it was not. The Tribunal is not satisfied by [the first applicant]’s explanation for the decision not to report the matter to the authorities, given [the first applicant]’s brother appears to have made a number of attempts to seek assistance from the Pakistani authorities. In any event, the Tribunal accepts that [the first applicant]’s brother is alive and well in Quetta.

12. The Tribunal notes that more recent country information has been made available in respect to the DFAT Country Information Report for Pakistan dated 25 January 2022. In respect to the claim about fear of harm due to their Shia faith, the Tribunal has considered the DFAT Country Information Report for Pakistan dated 25 January 2022, in particular the following parts:

    Shi’a

    3.55 Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions.

    3.56 Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. 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 Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.

    3.57 Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’.

    3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. Anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision).

    3.59 Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.

    3.60 Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS (see Security Situation). These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras, see Hazaras), compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.

    3.61 DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti- Shi’a protests and community violence. Some Shi’a face specific, heightened risks (see Hazaras, Turis, Bangash).

13. The Tribunal has considered the country information and submissions provided by the applicants and their representative. The Tribunal places heavy weight on the report that there is a moderate risk of sectarian violence to Shias in Pakistan although the security situation has improved considerably in recent years.

14. In respect to the claim about fear of harm due to [the first applicant]’s involvement with NGOs, the Tribunal has considered the DFAT Country Information Report for Pakistan dated 25 January 2022, in particular the following parts:

    3.110 The political environment in Pakistan is generally hostile to international and local NGOs, which are often perceived as a national security threat. Those that can operate face challenges including onerous registration requirements, and restrictions on movement and funding sources. The situation has worsened in recent years. In 2019, memos leaked from the Ministry of Interior claimed international NGOs were involved in ‘anti-state activities’ and worked ‘against Pakistan's security and solidarity’.

    3.111 NGOs must register with the Ministry of Interior to operate in Pakistan. The ministry has the power to cancel or deny the registration of any NGO deemed not to be acting in Pakistan’s strategic, security, economic or national interest. This restricts operations in sensitive geographic areas and limits the ability of NGOs to work on sensitive issues. Registration processes are opaque and onerous, and applications are frequently rejected without explanation. According to the US Department of State, international NGOs are required to obtain no-objection certificates (NOCs) before undertaking in-country travel, commencing certain project activities or initiating projects. Long wait times impede operations. International NGOs including Save the Children, the International Crisis Group and the Norwegian Refugee Council have been forced to cease operations in Pakistan in the face of these requirements. Human Rights Watch and Amnesty International no longer maintain offices in Pakistan for the same reasons.

    3.112 Human rights activists face threats of violence and harassment from the military, government and militant groups. In September 2020, a group of independent UN human rights experts called on the Pakistani government to end the secret detention of Idris Khattak, an activist and former consultant for Human Rights Watch and Amnesty International who had investigated disappearances in Pakistan’s Federally Administered Tribal Areas. According to Amnesty International, activists, journalists and human rights defenders have been forcibly disappeared by authorities in Balochistan. Among them are Hasaan and Hizbullah Qambrani, who were picked up in February 2020 after participating in protests against enforced disappearances in Quetta. The pair were freed in May 2021 after the Baloch Missing Person’s Camp met with Prime Minister Imran Khan to plead for their release.

    3.113 DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, the former FATA and Balochistan). NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups. Harassment and monitoring by security forces can occur anywhere in the country (see Military and  Intelligence Services).

15. The Tribunal has considered the country information and submissions provided by the applicants and their representative. The Tribunal places heavy weight on the report that NGO workers face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, the former FATA and Balochistan). The home area of the applicants is Quetta, which is in Balochistan.

16. A significant concern for the Tribunal is about potential threat of harm to [the first applicant], due to his combined background as a Shia and as a former NGO worker located in Quetta and the recent country information in respect to domestic jihadist groups in Pakistan. In this respect, the Tribunal has considered the DFAT Country Information Report for Pakistan dated 25 January 2022, in particular the following parts:

    2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are  sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.

    2.40 TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.

    2.41 Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan. See also Race/Nationality and Religion.

17. Accordingly, the Tribunal is reasonably satisfied, given the Tribunal’s findings and the country information, that [the first applicant]’s cumulative risk profile is such that he would face a real chance of serious harm if he returned to Pakistan in the foreseeable future. For the reasons given above the Tribunal is satisfied that the first named applicant, [the first applicant], is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.

18. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the other applicants, [the first applicant]’s wife and children, are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.

    DECISION

19. The Tribunal remits the matter for reconsideration with the following directions:

    (i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Joseph Lindsay
    Member