2018607 (Refugee) - [2021] AATA 5231

2018607 (Refugee) [2021] AATA 5231 (7 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2018607

COUNTRY OF REFERENCE: Pakistan
MEMBER:Brendan Darcy
DATE:7 December 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 7 December 2021 at 9.22am

CATCHWORDS
REFUGEE – protection visa – Federal Court remittal – Pakistan – race – Turi – religion – Shia – imputed political opinion – opposition to Tehrik-e-Taliban Pakistan (TTP) and/or other extremist Sunni groups – kidnapping – fear of killing – Taliban insurgent attacks – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2
Tribunals Amalgamation Act 2015 (Cth), Schedule 9
CASES
AAY15 v MIB [2017] FCCA 476
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MIELGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of the Islamic Republic of Pakistan (Pakistan), applied for the visa on 19 December 2012 and the delegate refused to grant the visa on 29 August 2014. While the delegate found that the applicant had a well-founded fear of persecution in Kurram District as a Shi’a Turi for the reasons of religion and imputed political opinion, the delegate found that the applicant could reasonably and practicably relocate to Peshawar, Islamabad and Rawalpindi, or Karachi, where he would not face a real chance of persecution. The delegate also concluded that there was not a real risk that the applicant would face significant harm if he relocated to such an area within Pakistan.
The applicant applied to the then Refugee Review Tribunal (RRT) on 4 September 2014 for a review of the delegates decision. The application for review was taken to be a proceeding before the Administrative Appeals Tribunal Migration and Refugee Division (the Tribunal) on 1 July 2015 pursuant to the Tribunals Amalgamation Act 2015 (Cth) schedule 9, item 15AB(2).
The applicant appeared before the Tribunal, differently constituted, (previous Tribunal) at a hearing on 9 March 2016 assisted by an interpreter in the Pashto and English languages and represented by a registered migration agent. On 18 July 2016 the previous Tribunal affirmed the delegates decision.[1]
[1] AAT 1415031 Decision Record 20.
[In] August 2016 the applicant commenced proceedings in the Federal Circuit Court (FCCA) seeking judicial review of the decision of the previous Tribunal. [In] 2020 the FCCA entered judgement dismissing the application for judicial review.[2]
[2] [Details deleted.].
[The applicant] filed an appeal of the FCCA judgment in the Federal Court of Australia (FCA). [Later in] 2020 the FCA entered judgment setting aside the orders of the FCCA, and the quashing the decision of the previous Tribunal remitting it to the present Tribunal for determination according to law.[3]
[3] [Details deleted.].
The FCA found that in failing to specifically address the applicant’s claim the they feared harm when travelling on the roads of the Federally Administered Tribal Areas (FATA) of Pakistan the previous Tribunal made a material and jurisdictional error.
The applicant arrived in Australia as an unauthorised maritime arrival [in] August 2012 and was granted a Bridging Visa E on 7 November 2011. They have remained lawfully in Australia on a series of Bridging Visas E since.
The applicant appeared before the Tribunal on 30 November 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 applicant was represented in relation to the review by his legal practitioner from [business name].
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant claims to be a citizen of Pakistan, born in [Village 1 in] Kurram District on [date]. He states he is of Pashtun ethnicity (Turi Tribe), Shi’a Muslim faith, speaks and reads Pashtu; speaks, reads and writes Urdu and understands some English. The applicant indicated that he departed Pakistan legally [in] July 2012 from Lahore Airport and travelled through [specified countries] prior to his arrival in Australia.
The applicant also consistently claimed never to be married or in a de facto relationship and that he does not have any children, including right up to the time of the scheduled hearing.
Summary of claims from the protection visa application lodged on 19 December 2012
The applicant’s claims from his Protection visa application[4] can be summarised as follows:
[4] See statutory declaration of 12 December 2012 at folios 26-29 of Departmental file [number].
·Up until 2007 his family had a good and comfortable life. His father had [area] of land (approximately [area]) spread over four areas in Kurrum Agency on which they grew [specified produce]. He was enrolled at [a named] University.
·In April 2007 the Taliban attacked a group of Shi’a people. After that some shop owners were confronted by the Taliban and told they had to close their shops. The Taliban put up notices saying that video and music shops and girls schools had to close. Shi’a shop owners challenged the Taliban and the people from the area came together to form a union to defend their rights.
·After this the Taliban began to attack other areas of Kurram Agency, including [Village 2] and [Village 3], where his family farms were. Some of their farms were occupied by the Taliban and some of the farmers they employed were killed. The local Political Agent (government representative) could not assist them.
·[In] May 2008 his uncle was beheaded by the Taliban in [Town 1].
·In August 2008 the Taliban attacked his home village, [Village 1], and 12 people were killed. His father moved his family to Parachinar. On the road to Parachinar his cousin was killed. [Later in] August 2008 his father died of a heart attack. He could not be taken to hospital because of the security situation.
·There were around 80 students from Kurram Agency at [his] University. They could not go home as the roads were blocked and it was difficult to access funds. The administration of UNHCR relief did not work well. Some people tried to go home via Afghanistan but a lot were killed travelling along this route as parts were under Taliban control.
·[in] July 2010 he tried to go home via convoy. They met another convoy travelling to Peshawar. The Taliban attacked and 18 people, all Shi’a, were killed. He was shocked and decided to abandon the attempt to return home and went back to Peshawar.
·Students protested at [a location] in Peshawar about the situation with the road but received no support, so took the protest to Islamabad. For two months they camped [at a location]. They got little support and he thinks this is because the government has some connections with the Taliban and don’t care about them.
·When they returned to their accommodation in Peshawar all the students from the Turi tribe received threat letters from the Taliban. Some, including him, also received threatening messages on their telephones. These said that all the Turi and Shi’a people would not be safe, no matter where they went in Peshawar and in Pakistan in general. He has attached a photocopy of one of the threat letters[5].
·Some Turi students were also kidnapped from Peshawar. When his brother heard about this he suggested the applicant should leave Pakistan, as neither Parachinar nor Peshawar were safe, or anywhere else in Pakistan.
[5] See folio 92 of Departmental file [number].
Evidence before and findings by the previous Tribunal Member
The applicant provided a further statutory declaration dated 2 March 2016[6] in support of his application. This was to clarify some of his earlier statements and to provide some additional information. Key issues from this statutory declaration may be summarised as follows:
- At the time of the attack on the convoy he was in [Town 2] with his convoy, waiting for the escort. He saw a truck return with the bodies of those who had been killed in the convoy travelling in the other direction. He was advised by the Frontier Force that the road was no longer safe, so he left [Town 2] and returned to Peshawar.
- About a year before this, in June or July 2009, he was on a bus in Quetta which came under attack. Two people were shot and one died. Three men with long hair and long beards demanded to know why the bus driver had not stopped for them. He was afraid they would check ID and find he was a Shi’a, so threw his ID cards under his seat and removed his religious ring. This happened just outside the police station but the police did not intervene until the armed men had left. He had not mentioned it before because it did not occur in his area, but it shows how unsafe life is in Pakistan and how the authorities cannot protect him.
- He also has not said that from 2007 onwards there were nights when he was so scared staying in the university’s hostel accommodation he would leave his room and hide in bushes nearby. This is because there were Taliban at the University and they knew him because they had grown up in the same area.
- The Taliban hate Shi’as, still have a strong presence in the Kurram Agency, and the government is doing nothing to get them out of the Kurram Agency. While the situation in the Kurram Agency is not as bad as it was in 2007 it is still bad, civilians are still being killed and Shi’as are still being targeted. In December 2015, twenty-two Shi’as were killed in a suicide bombing in a market in Parachinar.
- His Identity card indicates that he is a Shi’a. Once people see this they can check for marks on his back that reveal he is a Shi’a. He considers that it is very easy for people who are anti-Shi’a to identify him in Islamabad-Rawalpindi or Karachi.
- There are groups which operate throughout Pakistan that want to harm Shi’as. These include Siphan-e-Sahaba Pakistan and Lashkar-e-Jhangvi, as well as the Taliban. As a Shi’a from the Turi tribe, there is nowhere in Pakistan where he could be free from persecution and not be at risk of targeted killings.
- The Pakistan government does not care about Shi’as, is unwilling and/or unable to stop the activities of the anti-Shi’a militant groups, and lies about the number of civilian deaths to save face in the international community.
The applicant’s then adviser submitted a pre-hearing submission dated 4 March 2016[7]. The adviser submits that the applicant faces serious harm from the Tehrik-e-Taliban Pakistan (TTP), and/or from other extremist anti-Shi’a groups in Pakistan, on account of, individually or cumulatively:
[7] See folios 29-43 of Tribunal file 1415031.
·     His Shi’a Muslim religion;
·     His Turi ethnicity;
·     His imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of:
   His Shi’a Muslim religion; and
   His Turi ethnicity; and
   His origins from Parachinar, a region with a long-standing violent conflict with the Taliban; and
   His extended presence in Australia (a western country with a Christian Heritage) as an asylum seeker; and/or
·     His membership of the particular social group of ‘Turi Shi’as from Kurram Agency’.
The then adviser further submitted that the applicant faces a real risk of significant harm if returned to Pakistan, specifically:
·Arbitrary deprivation of life; and/or
·Torture; and/or
·Degrading treatment or punishment.
The then adviser addressed the findings of the delegate, submitting that the delegate’s findings in relation to the chance of the applicant suffering serious harm for a Convention reason in Kurram Agency and the FATA, especially during travel on roads, are still sound. The representative refutes the delegate’s findings that internal relocation is a viable option for the applicant and that the applicant is not owed protection on complementary protection grounds.

The applicant appeared at a hearing before the previous Tribunal on 9 March 2016, from the previous Tribunal’s decision record during the hearing the applicant gave evidence that provided more details, but that was on the whole consistent with his claims before the department.
In post hearing submissions received on 23 March 2016, the then advisor addressed issues raised in the hearing regarding country information available at the time relating to the plight of Internally displaced persons within Pakistan and the general security situation in the FATA at the time.
Findings by an earlier Tribunal Member
In his 18 July 2016 decision, the previous Tribunal found the applicant to have given an accurate account of his identity, that he is of Pakistani nationality and Pakistan is the receiving country for complementary protection purposes. The previous Tribunal accepted that that the applicant was born in [Village 1 in] Kurram Agency in the then FATA of Pakistan, that he is a member of the Turi tribe and Shi’a Muslim faith.
The Tribunal accepted the applicants claims relating to the deterioration of the security situation in Kurram Agency from 2007, and that this resulted in closure of the highway between Parachinar and Peshawar between 2007 and 2011 resulted in the Parachinar being effectively separated from the remainder of Pakistan during this time.
Otherwise, the Tribunal made the following findings based on the available country information with regards to the applicant’s refugee status:
The Tribunal accepts that there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured. The Tribunal finds, however, that overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards. For reasons set out above, whilst the Tribunal accepts that the applicant is a Shi’a from [Village 1] near [Village 2] in Kurram Agency, and is of the Turi tribe and Pashtun ethnicity, it does not accept that he has been specifically targeted or harmed by the Taliban or other Sunni extremists in the past, nor have any of his family members since 2008 despite them remaining in the area. For these reasons when combined, the Tribunal finds remote the chance the applicant would be seriously harmed by the Taliban, other Sunni extremist groups, former Sunni neighbours or anyone else for reasons of his Shi’a religion, Turi ethnicity, imputed political opinion of opposition to the TTP and/or other extremist Sunni groups (because of his Shi’a religion, Turi ethnicity, his origins from Parachinar and his extended presence in Australia (a western country with a Christian heritage) as an asylum seeker), and/or because he is seen to be a member of a particular social group comprising Turi Shi’as from Kurram Agency, on return to Kurram Agency. The Tribunal therefore finds that the applicant does not face a real chance of serious harm for a Convention reason on return to Kurram Agency now or in the reasonably foreseeable future.
As noted above, the applicant’s representative referred to reports of the presence of ISIS (Daesh) in Pakistan in the context of considering the possibility of internal relocation for the applicant. While the Tribunal has not made a finding that the applicant should relocate internally within Pakistan to avoid a real chance of persecution in his home area of the Kurram Agency, the Tribunal acknowledges some evidence of limited activity on the behalf of Daish in Pakistan. The Tribunal does not accept, however, on the evidence provided by the applicant and/or his representative, that ISIS or Daish are active in Kurram Agency or that they will start targeting the people of Kurram Agency, particularly Turi Shi’as, in the reasonably foreseeable future.
Conclusion – Refugee grounds
Considering the applicant’s claims both individually and cumulatively, as a Turi Shi’a from [Village 1] near [Village 2] in Kurram Agency, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Shi’a religion, Turi ethnicity, imputed political opinion of opposition to the TTP and/or other extremist Sunni groups (because of his Shi’a religion, Turi ethnicity, his origins from Parachinar and his extended presence in Australia (a western country with a Christian heritage) as an asylum seeker), and/or because he is seen to be a member of a particular social group comprising Turi Shi’as from Kurram Agency, or any other Convention if returned to Pakistan now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).
As noted above, the FCA found that in failing to specifically address the applicant’s claim the they feared harm when travelling on the roads of the Federally Administered Tribal Areas (FATA) of Pakistan the previous Tribunal made a material and jurisdictional error.
Most recent submissions to the Tribunal
The applicant was invited to a hearing for 20 August 2021. Prior to that hearing on 16 August 2021, the Tribunal received the following submsissions:
·     A further statement from the applicant dated 12 August 2021;
·     Photos of a protests organised by the Youth of Parachinar;
·     Media report from Dawn dated 25 April 2011: Security forces to secure Parachinar pad: Malik;
·     A media report from Pakistan Toady dated 27 April 2011: Parachinar youth rally for road;
·     A letter dated 14 July 2021 from the secretary of Anjaman-e-Hussainia (Shi’a organisation based in Kurram District) indicating the applicant was a member;
The hearing was cancelled due to the impact on the Victorian Government’s response to the Covid-19 pandemic.
On 1 October 2021, the Tribunal received a letter dated 18 August 2021 from clinical psychologist which was purposely generated for the Tribunal to consider. It states that the applicant has been diagnosed with Major Depressive Disorder, Generalised Anxiety Disorder and Post-traumatic Stress Disorder and that he requires further psychological and pharmacological treatment an requires a referral to a consultant psychiatrist.
As mentioned above, the applicant attended a scheduled hearing on 30 November 2021.
On the day of the hearing, the applicant submitted a copy of a letter from [an official] from [Community Organisation 1] indicating the applicant was an active participant and financial contribution to the [organisation]. This [group] is a community-based Shi’a organisation.
On the same day, the Tribunal received a further submission from the representative outlining some recent country information.
No further submissions were provided.
There are no non-disclosure certificates attached to the applicant’s Departmental file.
Country information: Pakistan
Relevant to this case is the security situation for members of the Turi tribe. The DFAT Country information report on Pakistan dated 20 February 2019 states the following:
Turis
The Turi tribe is a Shi’a Pashtun tribe of around 500,000 people. Turis are not generally distinguishable from other Pashtuns by appearance, but are identifiable by tribal names, accents, and residency in known Turi areas. Most Turis live in Parachinar, lower and upper Kurram Agency, Orakzai, DI Khan, Kohat, and Hangu. Concentration of Turis in small geographic areas, particularly in and around Parachinar and Kurram Agency, renders Turi communities vulnerable to attack.
The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a—especially in Parachinar, rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan. Between 2008 and 2014, Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith (see Shi’a). Militants frequently stopped and killed Turis travelling on roads. […]
[…] […]
While military operations have improved the security situation in Parachinar and Kurram Agency, they have also restricted freedom of movement and limited the community’s access to essential services and trade opportunities. Military operations have also displaced many Turis, and some of the many who have since returned to their homes have faced extensive damage to property and crops.
By February 2018, the Turi community estimated 40 per cent of military fencing in Kurram was complete, decreasing border permeability. Continuing security measures and tighter Afghanistan-Pakistan border controls also restrict movement. Turis also advise the military implements a 20 to 30 square kilometre area red zone for Parachinar, and a second, smaller red zone inside the outer red zone, in which markets and schools are located. Security forces have issued cards to access the red zones, which can be obtained by residents on presentation of identity documents (CNICs or passports).
While minorities feel more protected, according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence (see Shi'a) and greater presence of the Taliban and Al Qaeda. Turis face some risk of violence while travelling by road to Iran and Iraq on religious pilgrimage, although DFAT understands the government provides security assistance for such journeys (see Shi’a). Turis also express concern that the civil war in Syria was spilling over into Kurram and that ISIL, based in Nangarhar, is getting stronger.
Turis relocating from Parachinar and Kurram Agency to access adequate services face difficulties finding employment outside of Parachinar due to ethnic and religious profiling and are generally discriminated against in employment selection processes. Turis claim a Turi child died at a North Waziristan checkpoint because security officials refused the family’s request to cross to visit a hospital. DFAT is unable to verify this claim.
Notwithstanding these difficulties, global Turi Shi’a networks and donation systems can assist Turis to relocate to other cities in Pakistan. Such support often relies on a senior male Turi advocate, limiting access for poorer members of the community, especially women and children. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of language barriers, notably Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi.
The Parachinar government provides PKR 3 million (AUD 33,000) to families of government officials or military members killed in the line of duty, and PKR 300,000 (AUD 3,300) for civilians killed in the course of military operations. Members of parliament from the former FATA can face significant cultural pressure to provide financial assistance to constituents. Local sources say five orphanages in Parachinar are accessible to Turis and other ethnic and religious minorities.
Preferred relocation options for Turis are Wah Kant, Islamabad, Rawalpindi, Lahore and Karachi. Turis leaving Kurram Agency tend to relocate to other known Shi’a areas, irrespective of the language barriers they may face. Relocation to Khyber Pakhtunkhwa is not viable, as Turis are discriminated against, face security threats, do not have adequate access to services, and would likely be forced to sell assets. If forced to move to Khyber Pakhtunkhwa, Turis prefer to live in gated communities such as the Defence House Authority, however they will face security concerns and remain vulnerable. Abbottabad is considered slightly more secure within Khyber Pakhtunkhwa, but remains unsuitable from a risk perspective.
DFAT assesses that Turis a face similar risk of official discrimination as other Pashtuns based on ethnicity (see Pashtuns), and no additional risk of official discrimination based on their religion (see Shi’a).
Turis tend to live in enclaves with other Turis, mitigating societal discrimination. Outside these areas, Turis face a moderate risk of societal discrimination based on their Shi’a religion (see Shi’a) and historical animosity with the Bangash tribe.
DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.
The International Crisis Group recently published the following report about the situation in areas formerly within FATA and now part of KPK province, parts of which I have highlighted due to their relevance:
FATA’s merger with Khyber Pakhtunkhwa followed years of military operations against Tehreek-e-Taliban (TTP, Taliban Movement of Pakistan) militants. Those operations broke TTP’s hold over most of the tribal belt but also displaced millions of residents, destroyed homes and ruined livelihoods. Security in those areas has improved but remains fragile. Afghan insurgents, including Afghan Taliban factions and allied militants, maintain sanctuaries in FATA from which they conduct operations in Afghanistan. Human rights abuses, particularly enforced disappearances, continue, and the military still controls virtually every aspect of public life…
Even critics of the military operations recognise that they have disrupted TTP networks in FATA.
The tribal areas are no longer the hub for transnational jihadists that they were some years ago, when militants from across the world rubbed shoulders with their Pakistani counterparts in training camps.
Yet the military has neither killed nor captured all major TTP leaders. Some relocated to Afghanistan. Others moved to nearby Khyber Pakhtunkhwa districts, such as Tank and Dera Ismail Khan, and revived their networks there. These areas have seen increased extortion of local businesses, killing of leaders seen as anti-TTP and other perceived opponents, and kidnapping for ransom.
Other TTP factions with close ties to the Afghan Taliban, such as those led by Gul Bahadur and Sadiq Noor, appear to have moved their militias from North to South Waziristan.
Well-informed sources contend that Afghan militants, too, first relocated to other parts of the tribal belt, such as Kurram, whence they had easy access to Afghanistan’s Khost province, and have now returned to sanctuaries in North Waziristan.
“The Haqqani network [an Afghan Taliban faction long based in FATA] owns property worth billions of rupees in North Waziristan”, said Latif Afridi, a senior lawyer and Awami National Party leader from Khyber. “They started there and are still there. They only temporarily relocated to FATA’s Kurram and Hangu [an adjoining Khyber Pakhtunkhwa district]”.
To consolidate control, the military has relied on “peace committees”. In reality, these are pro-state militias, comprising what many FATA activists refer to as “local thugs”, that have fuelled conflict … While the military disbanded some of these militias due to local opposition, those that remain continue to target opponents and indulge in criminal activity, including drug and arms smuggling, with few restrictions.
That militant networks have revived is evident in the higher rates of violence and casualties in the past year. A FATA-focused NGO noted a 16 per cent rise in militant attacks and a 37 per cent rise in the number of casualties in 2017, compared to the year before. Many such attacks have taken place in tribal agencies that the military had supposedly rid of militants, such as Mohmand and Bajaur. Kurram, with its large Shiite population, was particularly volatile, with at least 115 people killed in three attacks in the first six months of 2017 – two of them targeting Shiites.
Attacks have continued this year: in January, five civilians were killed in a bombing in Kurram; in February, a military convoy was attacked in North Waziristan; the same month in Bajaur, an anti-Taliban leader was killed. Militants have also resumed targeting girls’ schools and threatening families who send their daughters to school.[8]
ASSESSMENT OF CLAIMS AND FINDING
[8] “Shaping a New Peace in Pakistan’s Tribal Areas,” International Crisis Group, Briefing 150 / Asia, 20 August 2018,
Country of reference
The applicant claims to be a national of the Islamic Republic of Pakistan (Pakistan). The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. Based on the available evidence, all of which is on file and with no evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Accepted personal circumstances
Generally, the Tribunal has accepts the applicant has provided credible oral, written and supportive documentary information about his personal particulars. It accepts that the was born in [Village 1] in Kurram District of Khyber Pakhtunkhwa (formerly officially known as Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan), is a member of the Turi tribe, and that he is of the Shi’a Muslim religion. (The Tribunal notes that Kurram Agency and Kurram District is used interchangeably in the country information, as it is in this decision). It also accepts the applicant speaks, reads and writes in Urdu and Pashto.
The Tribunal accepts that he is one of two sons to a Turi family, of which he was the younger .[details deleted]. It accepted that the applicant’s family had historically been custodial farmers of land in the [Village 2] and [Village 3] areas, close to the Afghani-Pakistani border, and that owned some land closer to [Village 1]. It accepts the applicant and his older brother were subjected to the customary Pasthtuwali code, which honour bound the elder of the brothers to remain in the tribal area to cultivate and protect for the land and family if under attack. Pashtunwali is a code of honour by which many Pashto-speaking tribal peoples adhere, regards of being Sunni or Shi’a Muslims. It is practiced widely by Pashtuns in the Khyber Pakhtunkhwa and Baluchistan Provinces of Pakistan.
The Tribunal accepts the applicant’s claims that, after the security situation deteriorated in 2007, some of his family’s plots of farmland adjacent to Afghanistan were occupied by the Taliban. It accepts some of their employee farmers were killed and that the Taliban diverted irrigation water to their own farms leaving their land to be uncultivatable. The Tribunal accepts that during this period of upheaval, feature by sectarian fighting and the displacement of Pashtuns out of the Kurram Agency, the applicant was encouraged to remain in Peshawar as a student. It accepts the applicant remained a student until 2011, during which he participated in the Youth of Parachinar protests in Peshawar and Islamabad organised by the Shi’a-orientated Imamia Student Organisation (ISO), as claimed. It accepts the demands of these protests included the return of Taliban occupied land back to their traditional custodians and greater security throughout the then FATA, especially on its roads. (Country information indicates that the protest in Islamabad was held in April and May 2011 to protest the blockading of the road and the activities of the Taliban).[9] It accepts that the applicant and other protesters received threatening generic texts messages and letters from the Taliban.
[9] 2011, Shiite News, 23 April, Youths of Parachinar Stage Sit-in Protest in Front of Pakistan National Assembly. Sourced at type="1">
The Tribunal accepts that as the second son the applicant was encouraged to pursue a tertiary education by his father and he completed a [degree] at the [named] University at Peshawar. It also accepts that in August 2008 his father died of a heart attack. He could not be taken to hospital in a timely manner because of the security situation.
The Tribunal also accepts that in 2010, the applicant unsuccessfully attempted to travel to [Town 2], on the border of Kurram Agency. The applicant has explained that when he was then required to wait for a military convoy to make the difficult onward journey into Kurram. After waiting several hours, when the convoy returned to the station, the applicant realised that it had been attacked by militants. He has provided descriptions of the scene which involved strewn limb corpses. The Tribunal accepts this account.
It accepts the applicant has never married or been in a de facto relationship or has any children, either in Pakistan or Australia.
However, the Tribunal has had cause to have reasonable suspicions about the applicant’s claims that his [uncle] had been executed in 2008. It has been claimed by the applicant that his uncle was caught and murdered by the Taliban in May 2008 when he travelled to the market in [Town 1] after that town had been occupied by the Taliban. However, at no stage did the applicant provide any evidence of his uncle’s death, including a death certificate. During the most recent hearing, the applicant introduced a new aspect to this claim that the Taliban had recorded the execution of his uncle and distributed on DVD which could be accessed at markets. He claimed it was not on the internet. When the Tribunal asked for a copy, the applicant refused to do so. He also claimed that there were death certificates of his uncle and his killed cousin who had been attacked by the Taliban. Having closely examined the folios pertaining to this matter, the Tribunal found no death certificates submitted to support his claims. Given the passage of time, there was no convincing reasons he could not have obtained such documentary evidence considerably earlier to a decision maker, especially when death certificates are commonly provided by Pakistanis for this and other visa categories under review by this Division of the Tribunal. The Tribunal strongly suspects the applicant introduced these elements to claim to augment his claims for protection. That is understandable. Nonetheless, the Tribunal makes the adverse credibility findings that it does not accept the deaths of the applicant’s uncle and cousin by the Taliban, as he has claimed.
The Tribunal makes a further adverse credibility finding in the context of the abovementioned adverse finding. It is regarding the applicant’s claimed was involved in a serious incident in July 2009 on return to Quetta from a wedding on bus which had been attacked. The incident included three men he suspected were Taliban because of their long hair and beards fired at the bus because it did not stop for them. It was claimed that at least one of the 40-50 passengers was killed when the bus was fired upon. The men then boarded the bus demanding to know who the driver was and why he did not stop for them. The driver hid among the passengers and did not identify himself. The applicant was fearful that he would be identified as a Shi’a and kidnapped or killed but the men did not ask for passengers’ identification. Eventually the police arrived twenty minutes later. This incident was first conveyed to a decision maker in a statutory declaration dated 2 March 2016. The applicant claimed he forgot to tell his lawyer about it. This far-fetched and late claimed appeared to be advanced because the applicant did not have any strong past harm incidents involving reasons he could not relocate to another part of Pakistan. The Tribunal does not accept the applicant who has provided very detailed evidence in the past overlooked this claim in 2009 due to any mental health problems. There is also no independent reportage of this incident, despite involving the killing of one passenger and the involvement of the authorities. The Tribunal does not accept this past harm incident occurred and finds it was advanced to augment his claims for protection with regards to unreasonableness of relation within any areas of Pakistan for the foreseeable future.
Home area: Real chance of serious harm for Convention reasons
Despite this adverse credibility findings and as explained in the hearing, it has been the salient aspects of the applicant’s relation and ethnicity and the Tribunal’s assessment of the available country as it pertains to Turis, who are religiously Shi’a, throughout Pakistan for the foreseeable future.
In this regard, the Tribunal notes that the previous Member made an observation that that when the applicant departed for Australia the Kurram agency sustained a conflict in Kurram Agency between the Shi’a Turi tribe, their Shi’a allies and some Shi’a Bangash clans on the one hand and Sunni extremists groups from both Afghanistan and Pakistan on the other hand. Insurgent groups have sought to use a corridor between Pakistan and Afghanistan that passes through the Kurram Agency and the majority Shi’a population in this area, particularly centred on Parachinar and surrounding districts, denied them this route. This subsequently resulted in violent clashes beginning in April 2007 and led to the road between Peshawar and Parachinar being closed between 2007 and 2011, causing acute shortages of essential items in Kurram Agency, according to observers like the Human Rights Commission of Pakistan.[10] The violence in the area from 2007 due to the fighting and targeted attacks against Shi’as resulted in hundreds of deaths and large-scale displacements from Kurram Agency. The Tribunal notes the independent country information indicates that the TTP effectively cut Parachinar off from the rest of Pakistan from 2008 to 2011[11], with the closing of the main highway linking Parachinar to the rest of the country, thereby seriously affecting the livelihoods of those living in Kurram District.
[10] IRIN, Pakistan: Driven out of Kurram Agency by violence,
[11] Siddique, A 2014, The Pashtun Question: The Unresolved Key to the Future of Pakistan and Afghanistan, Hurst & Company, London, p,102
The Tribunal also acknowledge that in the same period there was a huge upswing of sectarian violence towards Shi’as throughout Pakistan by Sunni militants.
Asked in the hearing, the reasons his brother remained in Kurram Agency and the applicant did not. The applicant explained that the Pashtunwali code required the eldest son to fight for the land and to remain in the area or risk losing the land to be redistributed to another member of the Turis in Kurram District. The Tribunal accepts this explanation, indicating the applicant’s brother remained in the area not because it was safe but because he was honour-bound.
The applicant provided written and oral evidence that the applicant’s brother encouraged the applicant to depart Australia, rather than either return to Kurram Agency or relocate within Pakistan. Given the country information, the Tribunal accepts that the applicant and his family did have some genuine and deep personally held fears of persecution about the applicant’s safety by remaining in Pakistan based on his race and religion.
However it does not appear that the applicant acted with any great urgency to leave Pakistan despite receiving generic threats from the Taliban. Indeed the applicant provided oral evidence that his brother had to persuade the applicant about the urgency to leave Pakistan.
In this decision, the Tribunal accepts Kurram district is the applicant’s home area and Khyber Pakhtunkhwa is his home province. It is the same place where his brother and his family continues to live.
At the time of the previous Tribunal Member’s decision, he identified country information indicatin that the FATA Research Centre (FRC) indicating a decline in sectarian violence in Kurram Agency[12] and that UNHCR said there was sufficient improvement in the security situation in the areas whereby it was safe for internally displaced persons to return and that this situation was durable. [13]
[12] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, p. 46
[13] UN High Commissioner for Refugees, Protection Cluster , "Post- return monitoring in areas of return Sholzan Tangi, Upper Kurrum agency - June 2014", UN High Commissioner for Refugees, Protection Cluster , 30 June 2014, CIS2F827D91287 >
However, the Tribunal has considered more recent material, including from the 2019 DFAT report.
Geographically the Kurram district is in north-western Pakistan sharing Pakistan’s international border with Afghanistan. Most of the population in Kurram district is Pashtun and the main religion in the district is Islam. Parachinar is the administrative headquarters of the Kurram valley. Pakistan and Afghan citizens are required to present their passports with valid visas for movement across the Pakistan-Afghan border. The length of the border and the rugged terrain mean that, in practice, undocumented movement is common. Pakistan citizens of Shi’a-majority Kurram Agency have historically transited through Afghanistan to reach Khyber Pakhtunkhwa (Peshawar) to avoid militant groups in Kurram and Orakzai agencies. Such movement has become more difficult following the fencing of the border.[14]
[14] DFAT Country Information Report Pakistan, 20 February 2019, 5.35, page 66
The Tehreek-e-Taliban Pakistan (TTP) was targeting Shi’a Muslims, not only in his home area of Kurram Agency. Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018.[15] The UN listed Jamaat ul Ahrar (JuA), an autonomous faction of the TTP, as a terrorist group in 2017. JuA was involved in 15 terrorist attacks (all in Khyber Pakhtunkhwa), killing 11 and injuring 16 in 2018 (compared to 37, killing 123 and injuring 306 in 2017). JuA leadership reportedly has close ties to al-Qaeda. Smaller militant groups in Khyber Pakhtunkhwa and the former FATA, labelled the ‘local Taliban’ for their TTP sympathies, carried out 28 terrorist attacks in 2018 (compared to 29 in 2017).[16]
[15] DFAT Country Information Report Pakistan, 20 February 2019,.2.71, p.18
[16] DFAT Country Information Report Pakistan, 20 February 2019,.2.86, p.20
Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties. Shi’a continue to face a threat from anti-Shi’a militant groups, including Lashkar-e-Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus. [17]
[17] DFAT Country Information Report Pakistan, 20 February 2019, 3.99 p.36.
With regard to incidents of past harm, the applicant specifically claimed that he had been kidnapped by the Taliban in 2011 when he was in a convoy of around 25 cars travelling to Peshawar (the capital of Khyber Pakhtunkhwa) through the Touragh Mountains. The applicant claimed he and 15 others were ambushed and then abducted to an unknown location. He further claimed that he as blindfolded and bound in a house or compound. During his abduction, the applicant had been struck, beaten and cut by the Taliban. He claimed the abduction lasted about 10 days. The applicant eventually escaped and returned to Parachinar with the assistance of a kind woman assisting the applicant’s abductors
However, the Tribunal accepts the applicant does hold genuine subjectively held fears in returning to the Kurram district and that his family members hold similar fears which restrict their mobility within Khyber Pakhtunkhwa.
Moreover, what is critical in this case is that the harm that the applicant fears from anti-Shi’a militant groups is from non-state agents and the applicant claims that the Pakistani authorities are weak and cannot protect him from that persecutory harm.
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
The most recent DFAT assessment states that Shi’a in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA. [18] Between 2008 and 2014, Turis faced significant violence. Groups such as the TTP targeted Turis for their Shi’a faith. Militants frequently stopped and killed Turis travelling on roads. A significant spike in profiling and targeted killings occurred between 2009 and 2014 along the Tall-Parachinar road, which links Kurram Agency and Peshawar.[19]
[18] DFAT Country Information Report Pakistan, 20 February 2019, 3.111, page 38.
[19] DFAT Country Information Report Pakistan, 20 February 2019, 3.14, page 25.
Deaths from terrorist attacks in Kurram Agency significantly increased in 2017. DFAT is aware of three attacks targeting Turis in Parachinar during the first six months of 2017, on the grounds of their Shi’a faith[20]:
·on 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar;
·on 31 March 2017 a suicide bomber attacked an imambargah in Parachinar; and
·on 24 June 2017 two devices detonated in a market in Parachinar.
[20] DFAT Country Information Report Pakistan, 20 February 2019, 3.15, page 26
The three attacks cumulatively killed more than 120 people.
The more recent information before the Tribunal indicates that the security situation throughout Khyber Pakhtunkhwa, which includes the applicant’s home area withgn Khyber Pakhtunkhwa, remains dangerous and volatile, with continuing terrorist attacks being undertaken by militant groups with an openly anti-Shi’a agenda.
It is noted by the Tribunal that operations Zarb-e-Azb, Radd ul Fasaad and associated counter-terrorism activities significantly decreased the number and severity of attacks on Turis. Nevertheless, in the first quarter of 2018, the Turi community reported two attacks, including one involving an improvised explosive device that targeted women and children.[21] This ongoing risk is further illustrated by a November 2018 incident in which 31 people were killed in the Shi’a-dominated area of Orakzai in Khyber Pakhtunkhwa. This broke a relatively long lull in terrorist attacks in country.[22]
[21] DFAT Country Information Report Pakistan, 20 February 2019, 3.16, page 26
[22] ’31 dead as bomb rips through busy market in Orakzai’, The Express Tribune, 23 November 2018,
At the time of the previous Tribunal Member’s decision, he identified country information indicating that the FATA Research Centre (FRC) indicating a decline in sectarian violence in Kurram Agency[23] and that UNHCR said there was sufficient improvement in the security situation in the areas whereby it was safe for internally displaced persons to return and that this situation was durable. [24]
[23] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, p. 46
[24] UN High Commissioner for Refugees, Protection Cluster , "Post- return monitoring in areas of return Sholzan Tangi, Upper Kurrum agency - June 2014", UN High Commissioner for Refugees, Protection Cluster , 30 June 2014, CIS2F827D91287 >
Although the applicant has not experienced serious or significant harm himself, the Tribunal has also placed significant weight on the DFAT assessment that Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups because of their Shi’a faith. By describing the risk of sectarian violence as moderate as not low, the Tribunal is reasonably invited to consider that the risk of such persecution to the applicant is more than a remote or far-fetched one, if returned to his home area in this country of origin.
The Tribunal is also concerned that the security situation throughout Khyber Pakhtunkhwa Province appears to be deteriorating since the Taliban takeover in Afghanistan and the reports that the Pakistani President, Imran Khan, is working to facilitate some of the demands made by TTP in areas neighbouring Afghanistan. On 9 November 2021, it was reported in IANS New Service, Pakistan is signing secret agreements with militant groups, including the TTP, to allow the release of imprisoned militants, the lifting of bans of certain radical Sunni outfits, the imposition of stricter interpretations of Sharia laws and the consolidation of the positions of militants in remote areas in Khyber Pakhtunkhwa Province. It was also reported that during a briefing of the Pakistani National Security Council last week, the Pakistani army chief General Qamar Javed Bajwa had also told the parliamentarians that "we have no more than two options about peace in Pakistan, we either have to negotiate or fight, but the situation in this country does not allow us to choose the second option. “[25]
[25] Have Imran Khan’s secret deals opened floodgates for terro groups to operate freely in Pakistan, IANS, in the Deccan Herald, 19 November 2021, >
It would not be unreasonable to glean from this reportage that the authorities in Pakistan are entering a phase of negotiated peace with anti-Shi’a Sunni radicals and that such negotiations would foreseeably lead to a further reduction of available protection measures in which the authorities will favour Pashtuns who are affiliated with TTP or other Sunni militant groups over Shi’a’ tribal groupings in the Province, including Turis and Bangash.

The Tribunal is satisfied that the country information reflects that that the Khyber Pakhtunkhwa province is still subject to unpredictable attacks on government, civilian, sectarian and military targets and that the border may become more porpus to the advantage of the TTP. The Tribunal further finds that the level of protection available to the applicant from the Pakistani authorities in Kurram Agency (and other Shi’a dominated areas of Khyber Pakhtunkhwa) does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal finds that, based on the country information, the applicant would not be able to avail himself of effective state protection against the harm he faces.
It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his ethnicity/race and religion if he returns to his home region in the Kurram District or any other part of the Khyber Pakhtunkhwa Province, now or in the reasonably foreseeable future.
Is relocation of the applicant to other parts of Pakistan reasonable?
Having made the finding whether the applicant faces a real chance of serious harm in the applicant’s home area, the Tribunal has considered whether it is reasonable for the applicant to relocate to other parts of Pakistan.
Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. The principles discussed by the court in Randhawa v MIELGEA (1994) 52 FCR 437, per Black CJ at 440-1, require the Tribunal to determine whether he or she can, reasonably in all the circumstances, live safely and free from a risk of such harm by resettling and living in another part of his country.
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.
The Tribunal notes that the applicant has spent considerable time outside of the Kurram Agency and travelled to Islamabad in the past. The Tribunal accepts that he has not engaged in the labour market in Pakistan but he has held a number of jobs since being in Australia. It finds that he received generic threats from the Taliban as a member of the Youth of Parachinar but he not a person of interest to them because of this, should he return to Pakistan into the reasonably foreseeable future.
DFAT comments that it has observed that Shi’as generally relocate with relative ease due to family and communal networks and that the higher expenses of living in cities such as Lahore and Islamabad are offset by higher wages, particularly for those with relevant skills, such as foreign language and computer skills. The Tribunal notes that the applicant has completed a tertiary degree and this should make relocation easier for him than low-skilled Turis.
In relation to the concerns expressed by the applicant that he would be perceived by militants to be an imputed supporter of the West, or even of Iran, as well as the information from DFAT that kidnapping is common in parts of Pakistan. Rangers and police have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years. While verifiable data remains unavailable, DFAT understands serious crime across Pakistan, especially in Karachi and downtown Peshawar, has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the NAP.[26]
[26] DFAT Country Information Report Pakistan, 20 February 2019, 2.98 and 2.99, pp 22-23.
In assessing the applicant’s claims in relation to this matter, the Tribunal had regard to a 2017 judgment of the Federal Circuit Court of Australia (FCCA) indicating that it is important to focus on the perception of militant groups in such circumstances rather than the reality of whether or not a potential kidnapping victim was wealthy.[27] In this regard, notwithstanding DFAT’s assessment that persons who departed Pakistan legally are not subject to additional risk of violence on the basis of having spent time in western countries, the Tribunal considers that, in the particular circumstances of this case where the applicant is a Turi Shi’a from Kurram district, it is relevant that his having lived in Australia for over seven years since his arrival in 2012 may become known on his return to Pakistan (including as he is dealing with the complexities of relocating, such as changing his place of residence status, seeking accommodation and finding employment) because it could increase the risk that he would be perceived to be wealthy, thereby increasing the risk of abduction or extortion over and above that faced by other Turi Shi’as seeking to relocate to a city like Islamabad, Rawalpindi or Karachi directly from Kurram district.
[27] AAY15 v MIB [2017] FCCA 476.
The DFAT report indicates that Pakistan continues to face security threats from militant groups and those anti-Shi’a groups, such as LeJ, SSP, JeM and the TTP, continue to operate across Pakistan despite government and military operations disrupting their activities. The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.[28]
[28] DFAT Country Information Report Pakistan, 20 February 2019, 2.27 p.18.
DFAT further comments that despite measures introduced to curb violence across the country under the NAP—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.[29]
[29] DFAT Country Information Report, Pakistan, 20 February 2019, 5.2, p.62.
According to UNHCR Eligibility Guidelines relating to Religious Minorities in Pakistan, the government has been criticised for failing to protect Shi’a Muslims from attacks, and for allowing militant organisations to operate with impunity by failing to investigate and punish those responsible for violent attacks on Shi’as in Pakistan.[30]
[30] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious
The US Department of State reports that the Pakistan police often failed to protect members of religious minorities, including Shi’as, although there have been improvements.[31] The US Commission on International Religious Freedom (USCIRF) also assesses that despite government efforts and positive rulings by the Supreme Court, the government failed to provide adequate protection to targeted groups or to prosecute perpetrators or those calling for violence.[32]
[31] US Department of State, Pakistan – Country Reports on Human Rights Practices 2015, 13 April 2016, section 1(d).
[32] USCIRF, Annual Report 2015 - Pakistan, 30 April 2015, p.2
The Tribunal has also taken into account some of the more recent country information provided in one of the legal submissions:
According to the data compiled by the South Asia Terrorism Portal (SATP), Pakistan has witnessed increasing numbers of civilian casualties and deaths throughout the country. Pakistan recorded 319 terrorism-related incidents in 2020, and 169 associated deaths of civilians.[33] While SATP noted that the overall trend of major incidents and resultant fatalities, as well as number of suicide attacks, has declined since 2014 (albeit with an aberration in 2017[34]), the organisation nonetheless found that “civilians are increasingly bearing the brunt of terrorist violence” in Pakistan.
SATP stated:
“…the number of suicide attacks has also declined, with an aberration in 2017. There were 38 suicide attacks in 2014; 31 in 2015; 23 in 2016; 25 in 2017; and 19 in 2018. Resultant fatalities in such attacks stood at 556 in 2014; 235 in 2015; 371 in 2016; 318 in 2017; and 302 in 2018. There has already been one incident in 2019, with 12 fatalities. While the number of suicide attacks has been declining, their intensity, in terms of fatalities, has increased.” [35]
Notably, SATP stated:
“Towards the latter part of 2018, some analysts had been hoping that Pakistan would change for the better under the new Prime Minister Imran Khan, who took the oath of office on August 13, 2018. Very quickly, it has become apparent that Khan is a produce of the deep state driven democracy, essentially a nominee of the Army establishment, and, expectedly, nothing has changed on the ground. Despite the sustained decline in terrorism-linked fatalities and incidents over the last four years, a festering wound continues to afflict Pakistan. Islamabad continues to use terrorism as an instrument to fulfil its ‘national goal’, exporting terror in neighbouring countries including India, Afghanistan and Iran, and well beyond, even as wide spaces remain for domestic and renegade groups to engineer a resurgence, despite their present and substantial repression. America’s imminent flight from Afghanistan and the absence of effective international pressure to compel Islamabad to reorient its policies, have enormously encouraged the establishment in Pakistan to stay the course in its support to terrorism, particularly in the immediate neighbourhood. [36]
[33] South Asia Terrorism Portal, ‘Terrorism Assessment – Pakistan 2019’, available at: Ibid
[36] Ibid
Overall, the Tribunal accepts that anti-Shi’a Sunni militants are emboldened by the developments in Afghanistan and that there has been a marked shift among such groups whereby the Pakistani Taliban has reunited and they are seeking to stoke Sunni-Shai tensions, not least, by seeking the authorities to increase recourse to enforcing ‘blasphemy ‘ laws in order to extenuate sectarian violence, which had also been noted by UK Border Agency report from July 2021.
The blasphemy laws, which carry severe penalties, apply to and are used against all religious groups, can lead to criminal prosecution and often arise from trivial disputes and social media activity (see Blasphemy laws and Application of the blasphemy laws). The year 2020 saw a rise in blasphemy charges – at least 199 people were charged, of which 70% were Shi’a Muslims. At least 40 cases were registered against Shi’as in one month alone, which sources suggest were linked to hate speech directed at Shi’as during the month of Muharram
This trend in sectarian targeting of these blasphemy laws against Sh’ias in Pakistan is another cause for alarm for the Tribunal when considering the relocation risk of appreciable harm to the Turis outside of Kurram District, in particular, and Khyber Pakhtunkhwa Province more generally.

100. Turis outside of the Kurram District have been targeted and killed with impunity by extremists on a number of occasions. These incidents have happened over many years and continue to occur. The applicant has not been personally targeted in acts of extremist violence or abductions outside of his home area. The applicant has spent some time outside of his home area, especially Peshawar and Islamabad. He has participated in the Youth of Parachinar movement in the past. It is a student organisation who has aimed to have the land occupied by the Taliban returned to previous owners. He has been fortunate enough not have suffered directly in the past. As noted above, the Tribunal does not accept one of his uncles and a cousin having been killed by the Taliban.
101. Nonetheless, the test in this matter is a forward-looking test and the salient aspects of the applicant his ethnicity in combination with his religion which make him a conspicuous for anti-Shi’a militants, given the reputation of Turis has armed resisters of the Taliban. The Tribunal does not accept the applicant’s claims about relatives having been killed and they probably remain in the Kurram District. He clearly advanced these claims to consolidate his otherwise genuine fears of persecution. Given the sectarian violence in Pakistan, that is understandable. On this occasion, the Tribunal does not place any adverse emphasis when evaluating whether the applicant will be denied state protection.
102. The Tribunal assesses that the applicant’s foreseeable experience will be consistent with the country information outlined above. It is noted that DFAT assess the threat risk for Shi’a in Pakistan who are Hazara and Turis vary depending on geographic location and that the risk of high-profile Shi’a face a moderate risk of violence. It is also noted that the Turis have distinct Pashtu accents and that they face the added risk of being violently targeted by rival tribal members of the Bangash who are also Pashto-speaking Pashtuns. The applicant has provided credible information that he attends Ashura and that he will into the future, as an observant Shi’a. Shi’a pilgrims face a moderate risk of violence from sectarian militants according to DFAT.
103. Given that Turis are both ethnically and religiously conspicuous throughout Pakistan and that anti-Shi’a organisations and militants, especially of Pashtun origin, operate throughout Pakistan, the Tribunal assesses that the applicant, as a Turi Pashtu who is Shi’a, has more than a low risk of violence from sectarian militancy. In this regard, the Tribunal finds that the applicant is a relatively conspicuous and vulnerable target as a Turi Shi’a whose risk of serious harm outside the Khyber Pakhtunkhwa Province is appreciable.
104. The information about Turis and the applicant’s accepted religious affiliation and practices as a Shi’a Muslim strongly indicates that state protection is severely compromised in Pakistan due to the predominance in some regions of tribal justice systems, systemic corruption of security and political agencies, an endemic lack of resources for security personnel and the nature of the ongoing extremist threat despite the authorities’ more targeting terrorist groups in Pakistan, such as the TTP.
105. Security for Shi’a Muslims throughout Pakistan has improved since the applicant departed Pakistan but remains fragile. There is more recent information to strongly suggest that those gains is now in imminent danger of deteriorating due to recent political events which Islamabad seeks to accommodate the Taliban takeover in Kabul and ‘peace agreements’ with the Pakistani Taliban and other Sunni militants. The Tribunal accepts that police and security forces in Pakistan are ill-equipped to protect Turi Pashtun citizens who are targeted by extremists and others, and that Turi Pashtuns are generally more conspicuous by their religion as Shi’as and aspects of their ethnicity, such as their accents and their tendency to reside in the same areas of cities outside of Khyber Pakhtunkhwa Province, than other Shi’a Pakistanis who are targeted by fundamentalist Sunni militants that hold eliminationist views towards all Shi’a Muslims. Furthermore, successful prosecution rates are low, which leads to a perception that extremist attackers enjoy immunity from justice, due to resource deficiencies and corruption throughout Pakistan. The level of state protection throughout Pakistan available to the applicant as a Turi is accordingly not at a level which citizens are entitled to expect according to international standards.
Conclusion
106. The Tribunal accepts the applicant has a real chance of serious harm based on his ethnicity as a Turi Pashtun and based on the related Convention based on the applicant’s religion given belonging to the Shi’a branch of the Islamic religion, if he were to return to his home area of Kurram District in Khyber Pakhtunkhwa Province.
107. Having considered the available country information, the Tribunal finds that that it would be unreasonable for the applicant to relocate to any other part of his country of nationality as the applicant will face an appreciable risk of persecution based on the essential and significant reason that the applicant is a Turi Pashtun who is a Shi’a Muslim.
108. The Tribunal is satisfied that the applicant is unable to avail himself of state protection from persecution in anywhere within Pakistan and that it is not reasonable for him to relocate to other parts of Pakistan to avoid the risk of Convention based persecution that he faces.
109. In conclusion, the Tribunal finds that the applicant satisfies the refugee criteria as the applicant has a real chance of serious harm for the essential and significant reasons based on a combination of his ethnicity and religion, if he were to return anywhere within his country of nationality.
110. The applicant’s fear of persecution is well-founded and he is a refugee who satisfies the criteria under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Accordingly, the applicant satisfies s.36(2)(a) of the Act.
111. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
112. Accordingly, the applicant satisfies the criterion in s.36(2).
DECISION
113. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Brendan Darcy
Member

2011, Dawn, May 9, Parachinar Youth in Shrouds Stage Rally. Sourced at from Pakistan, 01 January 2017, p.55-56..