2106145 (Refugee)

2106145 (Refugee) [2024] AATA 2835 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Azimi (MARN: 1568772)
CASE NUMBER:  2106145
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rachel Da Costa
DATE:26 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 26 February 2024 at 1:40pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – arrival at Territory of Ashmore and Cartier Islands – Shia religion – Hazara ethnicity – occupation as police officer – father’s occupation as police officer – failed asylum seeker returning from the West – no family support outside Quetta – applicant can relocate to Lahore – safety and feasibility of family relocating to Lahore – complementary protection criteria – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91K, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
MICMSMA v CBW20 [2021] FCAFC 63
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 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 Home Affairs on 16 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Pakistan, applied for the visa, which is a Safe Haven Enterprise visa, on 4 August 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information. He is a [age]-year-old male citizen of Pakistan. He was born in Quetta city, Baluchistan province, Pakistan. He has never been married. In Pakistan, he has his father, mother, brother, and [sisters]. He is in contact with his family in Pakistan by phone several times a week. His ethnicity is Hazara and his religion is Shia Muslim.
In Pakistan, the applicant always lived at the same address with his family in the Mariabad district, Quetta. The applicant speaks Hazaragi, and speaks, reads and writes Urdu and English.
In Pakistan, from July 2007 to March 2013 he worked as a police officer for the Baluchistan Police. As part of his training, he received basic light weapons training. For some of this period he was a bodyguard to [Official 1] of [Organisation 1]. Prior to this, he was a student. He holds a Bachelor [degree] from [University]. From January 2011 to March 2013, he also volunteered [for] [Organisation 2] in Quetta.
The applicant had a Pakistani passport but it was taken by the people smuggler on the way to Australia. He departed Karachi by air using his Pakistani passport. He arrived by boat in Australia at Ashmore reef [in] April 2013 without any travel documents.
Procedural background
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 26 June 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar and the applicant made a valid application for review on 9 May 2021.
Evidence before the Department and the Tribunal
Claims for protection
The applicant’s claims for protection are contained in his protection visa application form. These claims, accurately summarised in the delegate’s decision, are as follows:
·He is ethnically Hazara and a Shia Muslim.
·He worked from the police force in Pakistan.
·In his spare time, he worked as a volunteer [for] [Organisation 2]’.
·In Pakistan, he was subjected to threats and violence on the basis on his ethnicity and religion. He experienced violence because of these reasons.
·In the last decade, terrorist groups have killed many Hazara Shia Muslims in Pakistan. These groups continuously make public statements about threatening to kill Hazara Shia Muslims.
·During his university studies, he did not attend any classes at the [campus] because its location was not safe and he was afraid. He only attended the campus to take exams.
·In 2011, his mosque [in location] (Quetta) was bombed because the worshippers were Hazara Shia Muslims. About 15-20 people were killed. He was standing behind a wall and was therefore not injured.
·On [date]/01/2012, he survived two consecutive bomb blasts [in location]; the first occurred in a [club] and the second in [location]. More than 100 people, including 5 of his friends, were killed. He was shielded from the blast by his friend who was killed.
·After these two bomb blasts, he decided not to go outside and travel as much. He was afraid to go to mosques in Quetta and would only occasionally go to the mosque near his house.
·Moreover, police officers in Quetta are regularly sent on duty to local marketplaces which were extremely dangerous for the applicant due to his religion and ethnicity. He was vulnerable to being targeted.
·He was assigned by the Balochistan police force to be the bodyguard of [the] former [Official 1] of [Organisation 1], for two years. He was public exposed.
·Due to his public roles, he was too afraid to continue out of risk of being harmed. Terrorist groups issued public threats on television or online.
·Due to his work as a [volunteer], he would often respond to incidents where bombs targeting Hazara Shia Muslims had exploded. He was afraid that he would be targeted for his cumulative profile (occupation, religion and ethnicity).
·It is very difficult to move around in Pakistan as a Hazara Shia Muslim. Terrorist groups control many of the roads and are everywhere. Hazara Shia Muslims can be identified because of their distinctive facial features and by the way that they pray.
·Hazaras cannot seek protection from government authorities because they cannot provide protection.
·He did not move or try to move to another part of Pakistan to seek safety. There is nowhere in Pakistan that is safe for Shia Muslims and Hazaras like him. He did not have family anywhere in Pakistan with whom he could live and be safe. Attacks are carried out on Hazara Shias and police officers all over Pakistan by several terrorist groups.
·He is also afraid that he would be seriously harmed in Pakistan due to his political opinion based on his affiliations with the Pakistani government. His previous work at rallies and conferences have been widely presented in the media across Pakistan. Whilst working as a police officer, photographs on him in uniform have been accessed by terrorist groups which could be used to identify and harm him.
·In regards to relocation within Pakistan to an area where he would not be harmed, nowhere in Pakistan would be safe. Also, he has no specific work experience that could help him find a job in cities such as Lahore and Islamabad. He only has work experience as a police officer. If he was to work as a police officer again, he would be targeted and killed.
·Although he has a Bachelor [degree], this is not important and not helpful in finding him a job in Lahore or Islamabad. It is a common degree, held by many.
·Further, he has had back pain for many years now and this has made him unable to work in Australia. His doctor has told him that his backbone has issues and when he lifts something heavy, it causes him pain.
Interview with the delegate and the delegate’s decision
On 30 March 2021, the applicant attended an interview with the delegate to discuss his claims for protection and provided further information about his background and claims. The delegate made their decision on 16 April 2021. The delegate accepted that the applicant is a Hazara Shia from Quetta who worked as a police officer and volunteer [and] that he has no family or social connections in Pakistan outside Quetta. The delegate found that the applicant did not have an ongoing adverse profile in Pakistan and that he was not a person of adverse interested when he departed in 2013. The delegate considered that the applicant had exaggerated aspects of his evidence in claiming that he had a high profile.
The delegate considered country information, including that provided by the applicant, and found that there is a real risk of sectarian attacks or conflict in the applicant’s home area of Quetta in the foreseeable future and that the applicant may face a real chance of being killed or seriously injured in Quetta for reasons of his race or religion. However, the delegate was not satisfied that this real chance of persecution extended to all areas of Pakistan, such as Karachi or Islamabad. The delegate found that the applicant would face a only remote chance of being harmed in Karachi or Islamabad and therefore would not face a real chance of persecution in those areas even as a Shia Hazara. The delegate also found that for the same reasons, the applicant would not face a real risk of significant harm in those areas and that based on the applicant’s personal attributes it would be reasonable for him to relocate to Karachi or Islamabad which are areas where he would not face a real risk of significant harm. The applicant provided a copy of the delegate’s decision to the Tribunal.
Supporting documents provided by the applicant
The applicant has provided a range of documents, with English translations where necessary, in support of his claims for protection. Relevantly, these include:
·     Identity documents from Pakistan including the bio-data page of his Pakistani passport;
·     Evidence of the applicant’s employment by the Balochistan Police showing his rank as [deleted];
·     Evidence of his father’s employment by the Balochistan Police showing his rank as [deleted];
·     Letter from [Organisation 2] dated 23 March 2013 confirming the applicant was a volunteer [since] 2010;
·     Letter from [Official 1], [Organisation 1], Quetta, dated 20 September 2014 confirming that the applicant was [in] the Balochistan Police and stating that as a Hazara Shia in Quetta he is at risk of being a target of terrorist groups;
·     Receipts showing the applicant’s remittance of funds to his family in Pakistan from 2022 and 2023;
·     Transcript of results from [University];
·     Results from an x-ray of the applicant’s spine in 2018;
·     Statutory Declaration in of [name deleted], Australian Permanent Resident, dated 20 November 2023, noting that he and the applicant share a house, they are friends, the applicant has back pain which affects his ability to perform physically demanding tasks, the applicant sometimes has nightmares at night, the applicant has not sought medical attention because he cannot afford it, and he supports the applicant’s application for a protection visa;
·     Statutory Declaration of [name deleted], Australian Permanent Resident, dated 20 November 2023, noting that he and the applicant share a house, the applicant has back pain which affects his ability to perform physically demanding tasks, the applicant supports his family in Quetta financially and he fears returning to Pakistan which has affected the applicant’s mental health.
Country information provided by the applicant
The applicant has provided independent country information to the Department and Tribunal in support of his claims to fear harm in Pakistan including the following:
·     information relating to government employees and particularly those connected to the security services being targeted by non-state armed groups, including reference to a 2015 report of the Pakistani Institute for Conflict and Security Studies (PICSS); 2016 information from the Pakistan Institute of Peace Studies (PIPS); news articles from 2023 and the current DFAT Country Information Report Pakistan dated 25 January 2022 (DFAT Report);
·     information relating to the persecution of Shias and Hazaras in Pakistan, including a 2017 UNHCR Report which refers to Hazara Shias potentially being particularly vulnerable at the hands of extremist militant groups, which can restrict their movement and access to livelihoods; the 2019 DFAT Country Information Report on Pakistan (2019 DFAT Report) which refers to rates of domestic terrorism and sectarian attacks and the high risk of violence faced by Shia Hazaras, which according to DFAT has got worse; 2019 and 2020 PIPS reports which refer to notable incidents targeting Shia Hazaras in Quetta; a 2019 UK Home Office Report on Hazaras in Pakistan and the risks and restrictions they face; an October 2020 report by the European Asylum Support Office on sectarian violence in Baluchistan; the current DFAT Report; and a 2018 National Commission for Human Rights Pakistan (NCHR) which refers to the situation of the Hazara community as precarious;
·     reference to the DFAT Report which assesses that the current security situation in Pakistan has deteriorated since mid-2021 for various reasons; PIPS reports which show an increase in terrorist attacks by jihadist groups in 2021 and that Balochistan is one of the most affected areas in this regard;
·     2017 UNHCR Eligibility Guidelines for assessing the international protection needs of members of religious minorities from Pakistan;
·     a Numero cost of living report comparing Quetta and Islamabad, updated November 2020, and reference to the 2019 DFAT Report and current DFAT Report relating to the types of difficulties Hazaras may face in finding employment and establishing themselves outside Quetta, including violence and discrimination;
·     online news report about police being shot and killed in Quetta in August 2023 while they were accompanying polio vaccinators, and referring to a similar attack in the area in 2022 when four soldiers were killed while guarding polio teams; and a news report from August 2023 of three Hazara police being killed in Quetta in the past 24 hours.
Where relevant, this material is discussed in further detail below, along with other country information sourced by the Tribunal.
Pre-hearing submissions and applicant’s Statutory Declaration
After the applicant’s interview with the delegate, his representative provided written submissions in response to some of the issues and concerns raised during the interview. The Tribunal has considered these submissions and in the Tribunal’s view, those submissions have been superseded by the extensive pre-hearing submissions provided to the Tribunal by the applicant’s representative (which include references to the more recent country information referred to above).
The pre-hearing submissions restate the applicant’s claims for protection, information about the general security situation in Pakistan which it is submitted is worsening, submissions about the applicant’s vulnerability as a person who has worked for the Pakistani security force and who has a profile as a police employee, submissions about the situation for Shia Hazaras in Quetta and the risks the applicant would face if he returned there and sought to resume work and attend mosque. The submissions also address why the applicant cannot safely or reasonably relocate in Pakistan. It is submitted that the applicant’s ethnicity and religion make him vulnerable wherever he is, he has no family or social connections outside Quetta to assist him, he has no work experience other than being a police officer, obtaining rental accommodation for him and his family would be difficult and expensive, the applicant has physical and mental health issues and the country information does not indicate what level of support he would receive from Shia or Hazara Shia communities in other places.
An additional Statutory Declaration from the applicant dated 20 November 2023 provided with the pre-hearing submissions states as follows:
·     It is made in addition to the applicant’s original claims for protection.
·     Quetta is still dangerous for Shia Hazaras and government employees and police officers like him and he will be targeted and killed if he returns there.
·     The fact that his father was a policeman further raises the applicant’s profile as a target.
·     He cannot relocate within Pakistan because he is a Shia and Hazara who has worked with the Pakistan police. He will be harmed or killed by anti-Pakistani armed groups.
·     He cannot relocate within Pakistan because he will not be able to find a place to live or a job to support himself and his family members.
·     He has never lived outside Quetta and has no contacts and costs are higher in other cities like Islamabad and Lahore and he cannot afford it.
·     His family are financially dependent on him and they would have to come and live with him. He won’t be able to find a home large enough to accommodate them and afford to support them.
·     He is not mentally well and has trouble sleeping.
·     He has chronic back pain which means he can’t do physically demanding work. When his back is sore he takes painkillers.
·     He works in a [business]. This business does not exist in Pakistan and he will not be able to find employment in this area.
·     His ethnicity, religion and back condition will deter employers from offering him employment.
The hearing
The applicant appeared before the Tribunal on 26 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. A further hearing was scheduled for 2 February 2024, however as the Tribunal subsequently decided to remit the matter on the basis of the material before it, this hearing was not required.
The applicant was represented in relation to the review and his representative attended the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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 (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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the hearing, the applicant gave evidence that his lawyer helped him to fill out his protection visa application form and prepare his written statements and that all the information provided was true and correct.
In the hearing, the Tribunal obtained detailed information from the applicant about a range of matters including his family, education, employment and training, religious beliefs and practices, health and medical issues, travel to Australia, his life in Australia since arriving here, his financial position and that of his family and why he fears returning Pakistan. Overall, the Tribunal found the applicant to be a credible witness and the evidence he gave about his circumstances was consistent with evidence he had given in the past and where available, supported by documents, which the Tribunal accepts. He was able to elaborate on some matters which he did not explain fully to the delegate and which the Tribunal considers relevant to its findings, which are explained below. The Tribunal does not necessarily agree with the some of the conclusions the applicant draws about the consequences of aspects of his circumstances and, where relevant, the Tribunal addresses this below in its reasons.
In response to questions from the Tribunal the applicant’s evidence in the hearing was as follows. The applicant’s family in Pakistan comprise his father, mother, brother and [sisters]. He had two other brothers but one is deceased and the other is presumed deceased because he went missing [in] 2008 when travelling [overseas]. The living brother is called [name deleted]. The applicant’s family live together in the Mariabad district of Quetta. They share a house with the applicant’s uncle and his family, and this house is where the applicant lived before leaving Pakistan. The uncle is his father’s brother and the two men own the house together. The applicant’s father was a police officer for about 34 years and retired in 2009. He receives a government pension. The family has no other source of income apart from money remitted by the applicant. The family have no other assets. The applicant has never lived anywhere in Pakistan except his family’s home. His parents spend most of their time at home. His mother has a knee problem which restricts her and his father goes to the mosque and does a bit of walking. The applicant’s father had a heart attack and received treatment, but otherwise he does not have any medical issues. All the applicant’s siblings are single, uneducated and don’t work. The applicant’s brother has an intellectual disability and is diabetic. He has tried to work but it was not a success. His sisters stay home doing jobs and make clothes for the family. The applicant’s uncle is [self-employed]. The uncle’s son works for him sometimes but he has no employees.
In Pakistan, the applicant completed a Bachelor [degree] in 2009 while also working for the police. He studied at home and sat his exams at the university. He speaks Urdu, Hazaragi and a bit of English. He joined the police force in 2007 after doing a physical test and an exam. He decided to join because it was a way to have an income. He had to do about eight months of training at the police training centre on the edge of Quetta and lived there during that time. He did physical exercises, studied police force law, helped with cleaning, and some basic weapons training. After completing the training, he was sent to Police Headquarters for duties. He worked as a police officer for about seven years. His duties included taking criminals or suspects to court, escorting important visitors, patrolling the market or bazaar and he worked as a guard for two prominent people including a Member of Parliament for about two years. The police headquarters used to send messages about threats received against the people he was guarding, but no threats were made against the applicant personally. The applicant reached the rank of [deleted]. He stopped working as a police officer about one week before he left Pakistan, which means he has not worked as a police officer now for more than 10 years. His father has not worked as a police officer for even longer. The applicant stopped working because his life was always in danger and a lot of police officers had died. He escaped two bomb blasts, in 2011 and 2012. As well as being a police officer he volunteered for [Organisation 2] as [a volunteer] and donating blood. He did this about once a month for about one-and-a-half years.
The applicant is a Shia Muslim and in Pakistan he lived in an area where everyone was Shia. They prayed together and participated in Muharram[1]. He attended two Shia mosques in his area of Mariabad. In Australia, he goes to the mosque every [Friday], and also to the mosque in [another suburb] for Muharram. He also prays at home daily. The applicant has some contact with the Hazara community in Sydney. He is involved in community events like Eid and Muharram, and attends Hazara events or festivals sometimes. He has some friends within the Hazara community in Australia. If he returned to Pakistan, he would continue to practise his religion but he would be cautious because things are dangerous. He would go to gatherings when there were lots of people. He was not involved in politics in Pakistan and would not involve himself if he returned there.
[1]
When he arrived in Australia, he went to English classes run by the Salvation Army. This led him to volunteer in a Salvation Army shop where his role to was to move things around the shop and fold sheets. He did this for around one year and after that he did not do much as he did not have permission to work or study. He went to the library, did some cooking and walking. During this time he was supported by Centrelink.
The applicant is not in a relationship. He has lived with his same housemates for about eight years. A former housemate helped him to find his current [job]. He works 20 hours per week across three or four days and takes regular breaks because of his back pain. He has been doing this for about one year. He sends money home to his family. If he didn’t do this it would be difficult for them. His father’s pension money is small and not enough to cover his medication. His father received a lump sum when he retired but that has mostly been spent.
The applicant has a problem with his back and he is depressed and stressed. He does not know how he hurt his back and a doctor advised him to avoid heavy lifting. He is cautious with what he does, he does some exercises he was taught and he takes paracetamol to ease the pain. He has not had any treatment for his depression or stress. He feels tense and has trouble sleeping and has lost a lot of hair. He does not have any techniques to manage his mental health. In the hearing, the Tribunal observed that the applicant became uncomfortable after sitting for an extended period and needed a break because of the discomfort in his back.
The Tribunal asked the applicant about his statement in his Statutory Declaration that if he relocated to another city in Pakistan his family would have to come and live with him. The applicant explained that he has to support his family and they have to be together. The Tribunal put to him that he had been living away from them for over 10 years. He said if he went back to Pakistan he would have to be with them because they need his support. The Tribunal asked him why his family couldn’t remain in Quetta and he would live in another city. He said if he went to a place where he didn’t know anyone he couldn’t find work and couldn’t support them. He also said that living in Australia he can support his family but he would not be able to do that in Pakistan. The Tribunal found the applicant’s responses and explanations about this situation to be confusing.
Based on the evidence provided by the applicant, the Tribunal relevantly finds that:
·     The applicant is a Shia Muslim and a member of the Hazara community from Quetta, Balochistan;
·     He would be perceived as a Shia Hazara based on his appearance;
·     He holds a Bachelor [degree] and worked as a police officer in Quetta at the rank of [deleted];
·     His father worked as a police officer in Quetta for 34 years and attained the rank of [deleted];
·     The applicant personally never received any threats in the course of his work as a police officer;
·     He worked as a volunteer [for] [Organisation 2];
·     He has no family or connections in Pakistan outside Quetta;
·     He has lived in Australia since 2013, done some volunteer work and is employed by a [business];
·     He experiences back pain which affects his capacity to undertake certain types of work and suffers from undiagnosed mental health issues;
·     He is single and supports his family in Pakistan financially. He is the only person in his immediate family with the capacity to earn a living and his family has no other income apart from his father’s small pension;
·     It is his belief that if he were in Pakistan it would be necessary for him and his immediate family to live together and that he would have difficulty supporting them financially. He feels a great sense of responsibility in this regard.
The Tribunal does not accept that the applicant was of adverse interest personally to any government or non-government entity or person in Pakistan when he left in 2013. The Tribunal does not accept that if the applicant returned to Pakistan in the reasonably foreseeable future that as a former police officer or ambulance volunteer, or as the son of a former police officer, he would be of adverse interest to any government or non-government entity or person, particularly given he has not lived in Pakistan or worked as a police officer or ambulance volunteer for over 10 years and his police rank was low. The Tribunal notes that the applicant has not suggested that his father has experienced problems in Quetta due to his former role as a senior police officer since retiring in 2009 and the Tribunal does not accept that the applicant’s father’s former employment would adversely affect the applicant if he returned to Pakistan. While country information referred to below indicates that terrorists target serving members of the Pakistani security forces, including police, it does not suggest that they target ordinary former members like the applicant (however they do target civilians).
This being the case, the Tribunal finds that if the applicant returned to Pakistan in the reasonably foreseeable future, the applicant’s profile would be a single, working-age, Shia Hazara man from Quetta who has spent time living in Australia.
Does the applicant meet the refugee criterion?
In the hearing, the applicant said that he came to Australia because his life was in danger in Pakistan. He said he fears returning to Pakistan because he is Shia and Hazara and wherever he goes he would be in danger. His father is a retired police officer and there is a photo of the applicant guarding high profile people. Police in Quetta were killed recently and one of them was the applicant’s friend. Wherever Shia Hazaras go, they can’t find work easily and they are easily identifiable and not safe. The recent news article refers to people from Lashkar-e-Jhangvi (LeJ)[2] saying they will target Shia Hazaras in Pakistan wherever they are and so the applicant’s life would be in danger.
[2] A terrorist group. See DFAT Report, p 4.
As the Tribunal has found the applicant is a working age Shia Hazara man from Quetta, the Tribunal has considered whether, if the applicant returned there, he would face a real chance of serious harm.
The DFAT Report explains that the Hazaras are an ethnic group of distinctive East Asian appearance with their origins in Afghanistan. It is estimated there are 600,000 to 1 million Hazaras in Pakistan and most of them are Shia Muslims.[3] There has been a recent further influx of Afghan asylum seekers into Pakistan, including Hazaras, since the Taliban takeover in Afghanistan in August 2021.[4] The DFAT Report explains at [3.4] that:
Most [Hazaras] live in enclaves in Quetta due to the security situation in Balochistan. Smaller populations live in Karachi, Lahore and Islamabad. Hazaras outside Quetta tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack.
[3] DFAT Report 3.3.
[4] DFAT Report 2.50; (accessed 25 February 2024); (accessed 25 February 2024)
It goes on to state that:
…
3.5 Militant groups including, LeJ and IS (see Armed Groups) consider the Hazaras ‘infidels’ who are ‘worthy of killing’. A 2019 report by the NCHR said at least 2,000 Hazaras had been killed by militants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks and target killings’. No one has been held accountable for these attacks. Hazara political and religious leaders have been targeted for assassination. In April 2019, a bombing in Hazarganji market killed 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners in Mach. While there have been no attacks outside Balochistan since 2014, Hazaras have previously been targeted in Karachi, Peshawar and elsewhere. Militant groups retain the intent and capacity to attack Hazaras throughout Pakistan.
3.6 The Hazara community in Quetta lives in two enclaves: Hazara town and Mariabad. The Pakistani government provides security in these communities, including vehicle checkpoints and searches on entry and exit. Government forces also provide security for Hazara religious processions (see Shi’a) and Hazarganji market. Hazaras who leave Quetta are required to notify the security agencies. Local sources report Frontier Corps routinely harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps have described Hazaras as ‘agents of Iran’ and ‘untrustworthy’.
3.7 Medical, education and other services inside the enclaves are basic. Food and other essentials must be brought in from outside, and prices are reportedly double those elsewhere in Quetta. Those who can afford to travel to Karachi for medical treatment do so, while others must attend Quetta hospitals outside the enclaves, where they have been attacked in the past. Sectarian militants have also attacked Hazara religious processions, places of worship, and pilgrims on their way to Iran.
3.8 Schools exist within the enclaves, but there is little opportunity for higher education. Many Hazara students have abandoned the hope of higher education due to the risk of travelling. A small number of wealthier Hazaras send their children to study at universities in Lahore or Islamabad, where they reportedly feel safer.
3.9 Many Hazaras in Quetta provide services to their own communities within the enclaves; others move to other cities across Pakistan to work. Whether a Hazara can relocate strongly depends on their personal resources and family connections. In the past Hazaras were often employed in the military and public service, but few now apply for these jobs due to discrimination and fear of attacks. Since the IS attack in Mach in January 2021, Hazaras are reportedly too scared to work in the Baloch mining industry, previously an important source of income. High rates of unemployment and limited prospects have reportedly led to a sense of hopelessness among Hazara youth in Quetta.
…
3.11 DFAT assesses Hazaras who live in the enclaves in Quetta face a moderate risk of societal discrimination in the form of impeded access to higher education, medical services, employment and affordable food. Within and outside the enclaves, Hazaras face a moderate risk of official discrimination, including by government officials and security forces, in the form of obstruction at checkpoints and denial of or delay in access to identity documentation, employment and services. DFAT assesses such discrimination reflects widespread individual prejudice rather than official policy.
3.12 DFAT assesses Hazaras in Balochistan face a high risk of violence from militants on the basis of their ethnic and sectarian identity. Outside Balochistan the risk of violence for Hazaras is moderate. Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation. Outside Balochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination, but notes relocation to these areas is difficult or impossible for many (see Internal Relocation).
…
The UK Home Office Police and Information Note Pakistan: Hazaras[5] notes that the majority of attacks against Hazaras occur in Balochistan. Armed sectarian groups are known to target Shia Muslims, including Hazaras, and Hazaras can be vulnerable to attack when they leave their enclaves in Quetta because they are clearly identifiable.[6]
[5] July 2022 (UK Home Office Report on Hazaras).
[6] UK Home Office Report on Hazaras, 2.4.13 – 2.4.14.
The US Department of State 2022 Country Report on Human Rights Practices: Pakistan states that:
Sectarian militants continued to target members of the Hazara ethnic minority, who are largely Shia Muslim, in Quetta, Balochistan. Hazaras also continued to face discrimination and threats of violence. According to media and other reports, security concerns prevented Hazaras from moving freely outside of Quetta’s two Hazara-populated enclaves. Community members complained increased security measures had turned their neighborhoods into ghettos, resulting in economic exploitation. Consumer goods in those enclaves were available only at inflated prices, and Hazaras reported an inability to find employment or pursue higher education. Hazara observers reported increased surveillance by authorities due to the arrival of Hazaras from Afghanistan following the August 2021 Taliban takeover of Kabul.

The DFAT Report notes that the security situation in Pakistan had improved over recent years, but since mid-2021 it has started to deteriorate with terrorist attacks increasing and mostly occurring in Khyber Pakhtunkhwa and Balochistan, which is where Quetta is located.[7] The Pakistan Institute for Conflict and Security Studies (PICSS) notes that the first half of 2023 saw a steady rise in terrorist incidents in Pakistan, which is a 79% increase compared to the same time in 2022. Balochistan experienced 75 terror incidents in the first half of 2023, resulting in 100 deaths and 163 injuries, which was a 103% increase.[8] PICSS states that 2023 ended with a 70% increase in militant attacks, with many more foiled by the security forces, and Balochistan is one of the areas most affected, with civilians and security forces personnel being killed or injured.[9]
[7] DFAT Report 2.34 – 2.36.
[8] PICSS, Terrorism in Pakistan Soars 79% in First Half of 2023, 2 July 2023
[9] PICSS, 2023 end with 70% Increase in Militant Attacks, 81% Rise in Deaths: PICSS Report, Abdullah Khan, 1 January 2024.
The 2023 Pak Institute for Peace Studies (PIPS) Pakistan Security Report 2023 (PIPS report) supports this, explaining that terrorist attacks have risen in 2023, with security and law enforcement personnel being the prime targets but civilians also being hit. Five terrorist attacks have targeted members of the Shia community. Balochistan is the second-most affected area in Pakistan and Baloch insurgent groups as well as religiously-inspired militant groups were responsible for attacks in the province. A number of anti-militant operations were conducted around Pakistan in 2023 and Quetta was one of the districts where more than five such operations took place. Incidents of communal or faith-based violence also increased in 2023.
A number of news articles refer to incidents in and around Quetta in 2023 in which police and civilians were injured or killed. These incidents include five police injured in a series of blasts near police headquarters,[10] four people killed and fifteen injured a bombing of a police vehicle in a marketplace,[11] 52 people killed and many injured after the suicide bombing of a mosque in the town of Mastung near Quetta,[12] nine police killed and others injured while returning to Quetta after policing a festival,[13] a Hazara policeman being shot on his way to work,[14] and police escorting a polio vaccination team in Balochistan being killed.[15]
[10]
[11]
[12]
[13]
[14]
[15]
The International Crisis Group assesses that Muslim minorities, particularly Shia, are deeply vulnerable to sectarian violence as hardline Sunni groups “mobilise around allegations of blasphemy to gain political clout.”[16] The DFAT Report explains that blasphemy cases are on the rise in Pakistan, linked to rising religious intolerance, and religious minorities such as Shia are disproportionately affected.[17] A September 2023 article published in Eurasia Review by the South Asia Terrorism Portal (SATP)[18] refers to an attack on a Shia mourning procession in Sindh province when a banned Sunni group tried to block the procession. The article refers to other attacks on Shias during 2023 and 2022, as well as targeted attacks on Shia Hazaras in 2021 and 2019. It notes that Hazara Shias are particularly vulnerable and the danger of sectarian terrorism is rising in Pakistan for minority religious communities, with the further hardening of blasphemy laws being a particular issue. While the DFAT Report assesses that Shia in Pakistan face a moderate risk of sectarian violence and the situation has improved in recent years,[19] the Tribunal considers that more recent country information suggests that the trend is moving in the opposite direction along with the overall deterioration of the security situation in Pakistan and the rise of religious intolerance. However, the number of incidents is still low compared to the overall population. The DFAT Report notes that some Shia, including, Hazaras, face specific, heightened risks.
[16] International Crisis Group, A New Era of Sectarian Violence in Pakistan, 5 September 2022.
[17] DFAT Report 3.34.
[18] Eurasia Review, Pakistan: Targeting Shias – Analysis, Sanchita Bhattacharya, South Asia Terrorism Portal, 19 September 2023.
[19] DFAT Report 3.61.
The Tribunal has considered the applicant’s personal circumstances as a Shia Hazara man who is the only person in his family capable of working to financially support his family. The country information referred to above indicates that economic opportunities for Hazaras in their enclaves in Quetta are limited and the Tribunal accepts that if the applicant returned to live with his family in the Mariabad enclave, he would seek employment and this employment is likely to be outside the enclave. The Tribunal finds that the applicant would not seek re-employment with the Balochistan police in Quetta and, if he did so, he would face a real chance of serious harm. Country information indicates that employment opportunities for Hazaras even outside the enclaves can be limited due to discrimination and the security situation. Nevertheless, the Tribunal considers that due to his strong feeling of obligation towards his family, the applicant would seek regular employment and would travel outside the Mariabad enclave to do this if necessary. In the Tribunal’s view, the country information indicates that in these circumstances, the applicant would face a real chance of serious harm as a Shia Hazara working regularly outside the Mariabad enclave if he returned to Pakistan in the reasonably foreseeable future.
Under s 5J(1)(c) of the Act, a person only has a well-founded fear of persecution if the real chance of persecution relates to all areas of a receiving country. The task of the Tribunal in this regard is to consider whether there are areas of the country where “there is safe human habitation and to which safe access is lawfully possible”[20] and if an applicant resided there whether they would face a real chance of persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion. The “areas of a receiving country” to be considered under this sub-section do not include places that are “unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work”.[21] Further, it is clear that consideration under s 5J(1)(c) does not include a criterion of reasonableness. This is in contrast to the consideration required under the complementary protection criterion which specifically requires consideration of the reasonableness of relocation within a receiving country under s 36(2B)(a).[22]
[20] FCS17 v Minister for Home Affairs [2020] FCAFC 68
[21] FCS17 v Minister for Home Affairs [2020] FCAFC 68, [80].
[22] FCS17 v Minister for Home Affairs [2020] FCAFC 68, [81]. For what the consideration of reasonableness may include, see MZANX v Minister for Immigration and Border Protection [2017] FCA 307 per Mortimer J.
The DFAT Report states in relation to internal relocation within Pakistan at [5.23] – [5.24] that:
5.23 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate (see Women). For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later (see Women). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.
The Tribunal considers that the city of Lahore, in Punjab province, is a city which is habitable and to which safe access is lawfully possible for the applicant. The Pakistan Bureau of Statistics estimates that population of the Lahore district in 2023 to be around 13 million people[23] and the population of Punjab to be around 127 million.[24] The Tribunal is satisfied that the applicant can safely and legally access Lahore directly through its international airport without passing through Quetta.[25] Therefore, the Tribunal has considered below whether the applicant would face a real chance of serious harm if he returned to Pakistan in the reasonably foreseeable future and lived in Lahore.
[23]
[24]
[25] For example,
As discussed above, in relation to Hazaras, the DFAT Report states whether a Hazara can relocate strongly depends on their personal resources and family connections. According to DFAT, outside Balochistan, Hazaras face a low risk of societal or official discrimination, but relocation to these areas is difficult or impossible for many. Smaller populations of Hazaras live in Karachi, Lahore and Islamabad and Hazaras outside Quetta tend not to live in enclaves (unlike in Quetta) to reduce the risk of ethnic profiling, discrimination and attack. The Tribunal has not been able to locate recent information on the size of these Hazara populations in other parts of Pakistan or the type of support a Hazara relocating to one of those places may expect to receive from the Shia and/or Hazara community. A 2016 DFAT Thematic Report on Shias in Pakistan says there is a large Shia community in Lahore and migrant communities provide a support network which can help in the case of internal relocation.
Punjab is the most densely populated province and the DFAT Report notes that crime rates in Lahore have dropped in recent years due to police crackdowns.[26] Hazaras have reported discrimination in relation to employment because of security risk and stereotypes against the community, as well as non-Hazaras being worried about employing Hazaras in case their presence makes them a target.[27] As noted in the DFAT Report, in the past Hazaras were often employed in the military and public service, but few now apply for these jobs due to discrimination and fear of attacks. The UK Country Information Report on Hazaras states that some younger Hazaras “felt inclined to relocate to Punjab or Islamabad” due to the violence faced in Quetta.[28] The DFAT Report notes that a small number of wealthier Hazaras send their children to study at universities in Lahore or Islamabad, where they reportedly feel safer. The DFAT Report also states that outside Balochistan the risk of violence for Hazaras is moderate but Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation. This suggests that the risk of violence faced by Hazaras outside Quetta, including in Lahore, is not as high as in Quetta itself and some Hazara see better opportunities being available in those cities, however as discussed above, recent country information indicates that the overall security situation in Pakistan is deteriorating and religious intolerance against minorities is on the rise.
[26] UK Home Office Report on Hazaras, 2.1.6; DFAT Report 2.49.
[27] A Multi-layered Minority: Hazara Shia Women in Pakistan, CREID Policy Briefing, December 2020 (accessed 23 February 2024); UK Home Office Report on Hazaras, 2.6.3.
[28] UK Home Office Report on Hazaras, 4.2.1
In terms of security incidents in Punjab, and Lahore more specifically, the Tribunal has considered up-to-date country information. As noted above, the DFAT Report states that the security situation in Pakistan had improved over recent years, but since mid-2021 it has started to deteriorate with terrorist attacks increasing and mostly occurring in Khyber Pakhtunkhwa and Balochistan.[29] The PIPS report states that about 93% of the total recorded terrorist attacks in Pakistan for 2023 took place in the Khyber Pakhtunkhwa and Balochistan provinces. This was followed by Sindh province and then Punjab province. In 2023, six terrorist attacks took place in Punjab, compared to five in 2022. The PICSS states there were 14 militant attacks reported in Punjab in 2023 compared to three in 2022. Two civilians were killed and eight were injured. The other people injured or killed were either security forces or militants.[30] There were no terrorist incidents in Lahore, but a Sikh man was shot dead by unknown attackers. The PIPS report assesses that overall, terrorist violence in Pakistan is increasing. In 2023, three anti-militant operational strikes took place in Punjab, compared to 28 in Balochistan and 97 in Khyber Pakhtunkhwa. The PIPS report indicates a small increased in communal violence incidents, including 15 Hindu students being injured in Lahore. It does not record any incidents against Shia in Lahore in 2023.
[29] DFAT Report 2.34 – 2.36.
[30] PICSS, 2023 end with 70% Increase in Militant Attacks, 81% Rise in Deaths: PICSS Report, Abdullah Khan, 1 January 2024
The US DoS Report notes that Hazara observers reported increased surveillance by authorities due to the arrival of Hazaras from Afghanistan following the August 2021 Taliban takeover of Kabul. Country information refers to the Pakistani government hardening its stance against Afghan refugees, many of whom are Hazaras.[31] The Tribunal considers it reasonable to infer that this situation may add to existing negative feelings towards Hazaras in Pakistan generally, along with the lingering resentment and discrimination after the Covid-19 pandemic when Shia Muslims, and Hazaras in particular, were blamed for bringing the virus back from Iran when visiting for pilgrimage.[32]
[31] See footnote 4.
[32] UK Home Office Report on Hazaras, 2.4.10; Jafree, Malik & Khawar (2023) Pakistani Hazara Shia victims: challenges, survival techniques, and protective needs, Conflict, Security & Development, 23:1, 67-92.
Based on this information, the Tribunal considers that while the overall security situation in Pakistan is deteriorating and religious intolerance against Shia is rising, the number of security and sectarian incidents in Lahore remains very low compared to overall population numbers and recent reports do not indicate that Shia Hazaras have been targeted in Lahore. The applicant’s evidence about his religious practise, which the Tribunal accepts, is that he is an “ordinary” Shia worshipper and online news reports indicate that the police in Lahore put comprehensive security plans in place for Muharram commemorations.[33] For these reasons, the Tribunal finds that if the applicant returned to Lahore in the reasonably foreseeable future, he would not face a real chance of serious harm as a Shia Hazara due to the general security situation there.
[33] (accessed 26 February 2024);
The applicant also submits that he has no support outside Quetta, he has no work experience apart from being a police officer in Pakistan and working for a [business] in Australia, as a Hazara he will find it difficult to find work, he has chronic back pain and mental health issues and finding rental accommodation for him and his family will be difficult and expensive.
An April 2023 UK Home Office Country Policy and Information Note Pakistan: Internal relocation states that “there is a shortage of formal housing in Pakistan which is said to be generally unaffordable. Half of all urban households are overcrowded or live in informal settlements with inadequate access to basic infrastructure and services.” It goes on to refer to a 2022 World Bank blog which stated that formal housing is out of reach of most of the population and mainly owned by men.[34] The influx of Afghan refugees has made the housing situation worse both in terms of availability and cost.[35] News articles from 2023 indicate that inflation is high in Pakistan, with cost of living increases affecting the price of basic food and energy which is placing households under pressure. The 2022 floods damaged the economy, displaced millions of people and caused many textile workers to lose their jobs. The government is seeking assistance from the International Monetary Fund for its economic problems.[36]
[34] At 2.1.8.
[35] (accessed 25 February 2024); (accessed 25 February 2024)
[36] (accessed 25 February 2024); Pakistan is at risk of default: A balance of payments crisis is tipping a fragile economy over the edge, The Economist, 7 February 2023; (accessed 25 February 2024)
The Tribunal has considered whether these factors, individually or cumulatively, mean the applicant would face a real chance of serious harm in Lahore. The Tribunal finds that the applicant has experience and skills developed as a police officer, a worker in a [business] and a volunteer for the Salvation Army in one of their shops. He has a university degree and he speaks several languages. While the Tribunal accepts he has chronic back pain, he says he controls it with paracetamol, which is commonly known as a low-level over-the-counter painkiller, and exercises which a physiotherapist showed him. He works for 20 hours per week in Australia despite his back problems. The Tribunal does not doubt that the applicant experiences some mental health problems, as do many people in the community, but they have not been professionally diagnosed and evidently do not prevent him from working in Australia. The Tribunal has considered country information about housing shortages in Pakistan, the economic problems there and the particular challenges which can be faced by Hazaras in finding employment due to discrimination. The DFAT Report assesses that Shia Hazara communities outside Quetta face a low risk of societal or official discrimination. The Tribunal notes the applicant’s submission that finding rental accommodation for him and his family would be difficult and expensive, however based on the applicant’s evidence referred to above, the Tribunal considers the prospect that the applicant’s entire family would relocate from their established home Quetta to live with him in another city in Pakistan to be entirely speculative and the Tribunal does not accept this.
The applicant submits that as a returned, failed asylum seeker having spent time in a Western country he will face harm. The DFAT Report explains that returnees who leave Pakistan on valid travel documents, as the applicant did, do not commit immigration offences under Pakistan law. Returnees who are returned involuntarily or who travel on emergency travel documents, which would presumably be the situation for the applicant, are likely to attract attention from the authorities on arrival and will be interviewed and released if their exit from Pakistan was deemed legal. They are typically released within a couple of hours and there is no suggestion that they will be harmed during the interview process. The government issues returnees with temporary documents when they arrive. DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination solely as a result of their attempt to leave Pakistan or purely because they have lived in a Western Country.[37] DFAT notes that “societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad.”[38] It is submitted that the applicant will face difficulties with reintegration and may be perceived as wealthy having returned from a Western country which would increase the risk of kidnapping if he is forced to relocate to a larger city in Pakistan rather than Quetta. The Tribunal does not accept that the applicant will be perceived as wealthy and face a risk of kidnapping as this is not supported by the country information. The evidence does not suggest that while in Australia the applicant has engaged in behaviour or expressed opinions that would cause him a problem in Pakistan. The Tribunal is prepared to accept that the applicant will face difficulties with reintegration and this is discussed further below. Based on the evidence before it, the Tribunal does not accept that the applicant will face a real chance of serious harm due to his status as a returned, failed asylum seeker having spent time in a Western country if he returned to Pakistan in the reasonably foreseeable future.
[37] DFAT Report 5.28 - 5.31.
[38] DFAT Report 5.31.

The applicant has not claimed that he would have difficulty obtaining identity documents in Pakistan but the Tribunal has addressed this for completeness. The DFAT Report explains[39] that the most reliable forms of identification in Pakistan are passports and Computerised National Identity Cards (CNICs), to be replaced with Smart National Identity Cards (SNICs). CNICs are required to engage in formal employment, register as a voter and access various services. The National Database and Registration Authority (NADRA) issues CNICs and SNICs and has offices across the country. Another entity issues passports. All Pakistani citizens over the age of 18 are eligible to apply for CNICs and passports. To obtain a CNIC or SNIC, applicants need to submit the CNIC (or MNIC, an older version) number of a relative along with their own birth certificate, school, university certificate or citizenship certificate. Applicants applying for the first time are required to attend a NADRA registration centre in person. The DFAT Report states that most Hazaras in Pakistan can obtain a CNIC but they have claimed that NADRA officials sometimes cause delays for Hazaras and Hazaras have suffered lethal attacks outside the NADRA office in Quetta.[40] Based on the evidence before it, the Tribunal finds that the applicant would be able to obtain a CNIC or SNIC and he would not face potential danger in doing so because he would not be obtaining the card in person in Quetta.
[39] DFAT Report 5.36 – 5.42.
[40] DFAT Report 3.10.
Based on the considerations discussed above, the Tribunal finds that while it would be a challenge for the applicant to establish himself in Lahore, as a single man with his skills and experience he would be able to find work and shelter and he would not be denied access to medical care. The Tribunal considers that the difficulties and discrimination he would face as a Shia Hazara who has been living in a Western country would not amount to serious harm, and he would be able to subsist.
Therefore, in light of the above, the Tribunal does not accept that if the applicant returns to live in Lahore, he will face a real chance of serious harm for any of the reasons claimed or for any other reason.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Lahore now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As discussed above, 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 the 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 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).
As discussed above, the Tribunal has accepted that there is a real chance the applicant would face serious harm in the form of violence or death in Quetta if he returned there in the reasonably foreseeable future. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[41] the Tribunal finds that this element of the complementary protection criterion is satisfied.
[41] MIAC v SZQRB [2013] FCAFC 33
The next question for the Tribunal is therefore whether these circumstances amount to ‘significant harm’ to the applicant. ‘Significant harm’ 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. Based on the evidence before it, the Tribunal is satisfied that the harm the applicant would face in Quetta amounts to ‘significant harm’ as it includes the real risk of the applicant being arbitrarily deprived of his life or being subjected to cruel or inhuman treatment or punishment.
Therefore, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm in Quetta.
One of the qualifications to s 36(2)(aa) is contained in s 36(2B)(a) which relevantly states that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm.
The Tribunal has considered above whether the applicant would face a real chance of serious harm if he returned to Lahore in the reasonably foreseeable future and has found that he would not. The Tribunal also finds that if the applicant relocated to Lahore in the reasonably foreseeable future, he would not face a real risk of significant harm. This is because the Tribunal does not accept that the difficulties or discrimination the applicant would face in Lahore, which are discussed above, meet the definition of ‘significant harm’ in s 36(2A).
However, unlike its consideration under the refugee criterion, as part of its consideration of the complementary protection criterion under s 36(2B), the Tribunal is required to consider whether relocation to another area of the country would be reasonable. In this particular case, that requires the Tribunal to consider whether the applicant’s relocation to Lahore would be reasonable. In the context of the reasonableness of relocation, Mortimer J (as she then was) stated in MZANX v Minister for Immigration and Border Protection[42] that the question:
1. … is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like to live in the place said to be safe. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 (SZATV) at [24] the plurality said:
What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
1. In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location…
Her Honour goes on to explain at [55] that detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required, as will the circumstances of the individual, including “her or his personal strengths and weaknesses, skills, material and family support... A broad brush approach will not satisfy the requirements of the task to be performed”. There must be a “considered attempt to assess what, in a real and practical sense, will happen to that individual” in the circumstances.[43] How these inquires are to be made “will be informed, of course, by the nature of the claims made by an applicant, and what he or she says about the practicalities of relocation” including their “objections” to relocation.[44]
[43] MZANX at [56]
[44] MZANX at [57].
The Tribunal has found that the applicant is an educated, working-age, single, Shia Hazara man who suffers from back pain and undiagnosed mental health issues. The Tribunal accepts that the applicant’s family in Quetta is financially dependent on him and he is the only male (and person) in his immediate family with the capacity to earn money. The Tribunal considers that the applicant’s earning capacity in Australia is low and so is his earning capacity in Pakistan, particularly given the current economic problems there and the particular challenges faced by most Hazaras. While the Tribunal considers that the applicant would be able to find employment in Lahore to support himself, it seems very unlikely that he would be able to find employment which would enable him to support his family to the same extent as he has been doing from Australia, and any financial support he would be able to provide would be far more modest. The Tribunal has accepted that the applicant does not have any family or social contacts outside Quetta, which means that his relocation to Lahore would be as a single man without a clear support network, noting there is a Shia Hazara population in that city but the support available may be limited.
As discussed above, the Tribunal has found the applicant’s assertion that if he returned to Pakistan his family would have to relocate so they could all live together in order for him to support them to be speculative, but the Tribunal accepts that the applicant is very committed to his family and if he returned to Pakistan and lived in Lahore he would want to see them from time to time. Practically, this would either involve the applicant travelling to Quetta, where the Tribunal has found he would face a real chance of serious harm if he returned and resided in there, or his family visiting him in Lahore if they were willing and able to do so. The DFAT Report states that for some groups, such as Hazaras, travel by road is unsafe in certain parts of the country (which would presumably include Balochistan province at this time) and those who must travel and can afford to fly do so.[45] Based on the evidence before it about the applicant’s limited earning capacity, the Tribunal does not consider that flying would be an affordable option for the either the applicant or his family which means they would be exposed to increased risk when travelling to see each other. Further, the country information discussed above about the housing shortage in Pakistan and associated cost increases, suggests to the Tribunal that the applicant may have difficulty finding and affording accommodation in Lahore which would be large enough to accommodate his family if they came to visit (or to live with him). For these reasons primarily relating to the applicant’s person situation with his family and what this would mean for him if he were living in Lahore, the Tribunal finds that it would not be reasonable for the applicant to relocate to Lahore or any other area where he may not face a real risk of significant harm.
[45] DFAT Report 5.23.
Therefore, the Tribunal is satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm: s 36(2)(aa).
Based on the evidence before it, the Tribunal finds that the applicant does not have the right to enter and reside in another country apart from Australia: s 36(3).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Rachel Da Costa
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2835

26 February 2024

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Immigration

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Statutory Interpretation

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