2107276 (Refugee)

2107276 (Refugee) [2022] AATA 4548 (14 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Sanmati Verma (MARN: 1276020)
CASE NUMBER: 2107276

COUNTRY OF REFERENCE: Pakistan
MEMBER:Roslyn Smidt
DATE:14 October 2022
PLACE OF DECISION: Sydney
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 14 October 2022 at 3.34 PM

CATCHWORDS
REFUFEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Shia – race – Turi tribe – political opinion – Imamia Student Organisation member – particular social group – wealthy and influential family members – mental health issues – armed sectarian attacks – welfare and social activities – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Pakistan, applied for the visa on 17 December 2012 and the delegate refused to grant the visa on 9 April 2014.
The delegate’s decision was affirmed by a differently constituted Tribunal on 10 January 2016. The former Tribunal’s decision was remitted by consent [in] February 2020 as it was conceded that the Tribunal fell into error by failing to consider the report of the FATA Research Centre “Security Report Third Quarter July-September 2015, published in October 2015.
The applicant appeared before the Tribunal on 1 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review.
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, 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.
BACKGROUND
The applicant is [an age]-year-old single man of Shia Muslim faith from Kurram District in Khyber Pakhtunkwa [KP] Province in Pakistan. He belongs to the [Turi] tribe. He has [specified family members]. His parents and siblings remain in KP Province. He lived in [Village 1] until 1995 when his family relocated to Parachinar where he resided until he departed Pakistan. He studied for a [grade] at the [named] college in Parachinar, which is the equivalent of [grade] in Australia. He worked part time at a family-owned [business 1] from [specified year] until June 2012.
The applicant obtained a passport [in] 2011. He departed Pakistan [in] June 2012 using that passport. He arrived in Australia (Christmas Island) by boat [in] August 2012. He was granted a bridging visa and released from detention on 7 November 2012. Following that he resided in Melbourne. Tribunal records indicate that he relocated to Sydney in about April 2014 and has remained in Sydney since that time.
The applicant held a bridging visa with work rights from March 2013 until 28 days after the first Tribunal affirmed the delegate’s decision on 10 January 2016. Since that time, he has not held a visa. He was granted some assistance under [a support program] in 2020 but has relied mostly on the financial support of friend in Australia which has left him heavily in debt.
The applicant’s mental health
In a letter dated 24 May 2022 a psychologist and mental health clinician responsible for treating the applicant stated that he had reported experiencing anxiety and other symptoms prior to leaving Pakistan as a result of violence he had experienced there. The letter goes on to state that the applicant is experiencing PTSD, depression, and anxiety as a result of historical trauma, visa insecurity and the threat of future harm if he were to return to Pakistan home country. He struggles to cope with daily living tasks including occupational functioning and ability to find work; interpersonal skills and social functioning particularly without family or friends for support. Tests conducted by the psychologist suggest that he is experiencing symptoms consistent with extremely severe anxiety, depression, and PTSD. opinion, if [the applicant] was forced to return to and relocate within Pakistan, the applicant would be at risk of suicide.
In a letter dated 23 May 2022 another psychologist who has also been providing treatment to the applicant stated that the applicant’s history and psychometric tests were consistent with a diagnosis of Major Depressive Disorder, with anxious distress, severe and Post Traumatic Stress Disorder. His condition and symptoms affect his daily living and detrimentally impacts his occupational functioning, social ability, interpersonal skills and emotional skills. In the view of the author returning to Pakistan would have detrimental impacts on the applicant’s psychological condition and would place him at risk of suicide.
Summary of claims
The applicant claims to fear harm on return to Pakistan because he is an educated man of Shia Muslim faith from the Turi tribe in Kurram District in Pakistan, because he was a member of the Imamia Student Organisation [IMO], because he was involved in establishing a library for students in Parachinar, because of his family background, including his relationship to his uncle and his grandfather, because of his work at the family [business 1], because he has spent time in Australia and because he would be returning as a failed asylum seeker. The applicant claims that the government of Pakistan would fail to provide him with adequate protection, that he would not be safe from harm anywhere in Pakistan and that in any event it would be unreasonable to expect him to relocate as he has never lived outside Kurrram District, has no support networks elsewhere in the country and is suffering from mental health issues.
Country information
Shia Muslims, Pashtuns
Reports from DFAT and UNHCR indicated that Muslims constitute over 90 per cent of the population of Pakistan. Between 10 and 25 per cent of them are Shia Muslims. Shias live throughout Pakistan, with significant communities in Karachi, Lahore, Rawalpindi and Islamabad. According to DFAT they are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties.
Shias have been faced sectarian violence from extremist Sunni groups and sometimes the broader Sunni population. The incidence and severity of these problems has varied over time and according to location. Shia of Hazara ethnicity have been disproportionately affected. Shias living outside the major cities also appear to often be at greater risk. In January 2022 DFAT observed that the situation for Shias in Pakistan had improved in recent years and assessed that Shia in Pakistan generally face a moderate risk of sectarian violence.

29. While somewhat dated the January 2017 UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan provides useful insights into the situation of Shias in Pakistan. It notes that while Shias are not subject legal discriminations faced by some minority groups, they have been the main target of sectarian attacks. It observes that extremist Sunni militant groups reportedly view the Shia as “heretics”, “infidels” and “apostates” who should be punished with death. It notes that government has been criticized for failing to protect Shia from attacks and for allowing militant organizations to operate with impunity by failing to investigate and punish those responsible for violent attacks.

There are an estimated 20 to 25 million Pashtuns in Pakistan, making them the second largest ethnic group in the country. Traditionally they live in areas across southern Afghanistan and north-western Pakistan. Many Pashtuns live in KP Province, but there are also significant populations in Sindh and Punjab, particularly in Karachi and Lahore. They are mostly followers of Sunni Islam. They are well represented at all levels of society in Pakistan but may face low-level societal discrimination in areas where they are in the minority. Pashtuns from KP may also face problems due to suspicion of involvement with Sunni extremist groups. Shia Muslims of Pashtun ethnicity face the same level of risk as other Pashtuns in relation to their ethnicity.
Turi Tribe and Kurram District
Kurram is a sub-district of the Kohat District in KP. It is located in the northwest of Pakistan. It shares a long border with Afghanistan to the north and south and other KP districts, including North Waziristan to the south and east. Until 2018 it was an agency within the Federally Administered Tribal Areas (FATA). At that time the area was governed by local chieftains called maliks and political agents who represented the central government.
The population of KP is mainly Pashtun and predominantly Sunni. Shias live in Peshawar, (the capital of KP province) and the districts of Kohat, Hangu, Dera Ismail Khan, Kurram, and Orakzai.
Turis are a Pashtun tribe of around 500,000 people almost all of whom are followers of Shia Islam. Most live in Kurram District in and around Parachinar. They are not generally distinguishable from other Pashtuns by appearance, but may be identifiable by tribal names, accent or residence in known Turi areas.
Kurram District has three tehsils [local government areas] Central, Lower and Upper Kurram. Shias from the Turi tribe traditionally make up approximately 42 per cent of Upper Kurram district. Most of the population of Central and Lower Kurram is Sunni.
Parachinar is the capital of Kurram District. It is a relatively small town in Upper Kurram and has Shia Muslim majority population. [Village 1] is a town in Lower Kurram near the border with Afghanistan. It is located about [distance] from Parachinar by road, a journey of about [time] according to google maps.
Sectarian and terrorist violence in Kurram District from 2007 to the present[1]
[1] This overview draws a range of sources including DFAT reports, International Crisis Group 2009, Pakistan: The militant Jihadi challenge, Asia Report No 164, 13 March and Pakistan: Countering Militancy in FATA, Asia Report No 178 21 October; Dressler, J & Jan R 2011 The Haqqani Network in Kurram: The Regional Implications of a Growing Insurgency, Institute for the Study of War and AEI’s Critical Threats Project; The Pakistani tribe that is taking on the Taliban, BBC News 21 October 2010 Taliban negotiates to gain access to key Pakistan area, BBC News 21 October 2010; UNHCR Protection cluster mission to Kurram, 22-26 April 2014; A community under siege in tribal Pakistan
Sectarian tensions and disputes over land and water resources have resulted in incidents of communal violence in Kurram district since the at least the 1930s. Prior to 2007 clashes between were usually minor and quickly resolved by tribal leaders and government officials. Following the 2001 overthrow of the Taliban in Afghanistan neighbouring areas such as Waziristan became sanctuaries for the Afghan Taliban and the Pakistan Sunni groups.[2] The government responded by launching a military operation in south Waziristan in 2004. Further campaigns were conducted throughout the province from about 2007. These campaigns sometimes involved human rights abuses and resulted in increased destruction of local infrastructure.
[2] Numerous Pakistani Sunni extremist groups have operated in and around KP Province since the early 2000s. Over time they have split or formed alliances and waxed and waned in strength and influence. They are often referred to as the Taliban, but this can this can refer to several different groups or their sympathisers. For convenience I will refer to these groups with the general term Sunni extremists, unless the group involved has a particular significance.
Sectarian and extremist violence broke out in Kurram District in April 2007 when a Sunni gunman reportedly fired on a crowd of Shias in Parachinar protesting earlier insults by Sunnis. This sparked violence between Shia Turis and local Sunni tribes often supported by the Taliban. Thousands of people from both Shia and Sunni tribes were killed or injured and many more were displaced.

The underlying the causes of the violence in Kurram appear to be the Turis refusal to provide support to the Mujahideen the 1980s, the growing presence of Sunni militant groups from outside the area with a clear sectarian agenda and the Taliban’s desire to access Afghanistan through the strategic Upper Kurram Valley.
Security forces launched campaigns to remove extremists from the area in 2009 and 2011, with varying degrees of success. Local Turis formed militias also undertook both offensive and defensive actions and succeeded in removing terrorist groups from the areas in which they were in the majority. Kurram District became segregated between the Shia-dominated north and the Sunni-dominated south. Most local Sunnis left Parachinar. According UNHCR few had had returned by April 2014.
Most of Upper Kurram including Parachinar remained under the control of the local Turi people after the 2007-2011 violence ended. However, the violence caused significant damage to schools and hospitals and together with the closure of the road from Thall to Peshawar by Sunni militants which cut Kurram District off from the rest of the country for several years resulting in significant shortages and economic problems. Extremist Sunni groups continued to have a strong presence in bordering Sunni dominated districts and across the border in Afghanistan. From 2009 to 2014 Turis who travelled outside Upper Kurram were at risk of attack. Parachinar and other towns in Upper Kurram were subject to occasional terrorist attacks. A series of terrorist bombings targeting Turis in Parachinar killed 120 people in 2017.
The current situation in KP Province and Kurram District
The EASO Pakistan Security Situation Report issued in October 2021 provides a detailed analysis of terrorist attacks and other forms of violence in Pakistan in recent years, based largely on the analysis of statistics from several monitoring groups.[3] These groups use differing criteria in their assessments which makes it difficult to ascertain the precise details on the frequency and nature of the violence in the area. Overall, the data indicates that KP province continued to record one of the highest incidence terrorist attacks in Pakistan, but at significantly lower levels that during the height of the conflict prior to 2013 and mostly in areas such as Waziristan. With regard to Kurram District, it states that there were 3 violent incidents in 2020 which resulted in two injuries and 8 in the first six months of 2021, resulting in 11 deaths and 7 injuries. It also observes that the situation in general area had begun to deteriorate.
[3] The Pakistan Institute for Conflict and Security Studies (PICSS), Pak Institute for Peace Studies (PIPS), FATA Research Group, Centre for Research and Security Studies (CRSS) and Armed Conflict Location and Event Data Project (ACLED).
The authors of the report sought the opinion of two experts in Pakistan. Their responses provide useful insights into the situation.
Mansur Khan Mahsud the Executive Director of the FATA Research Centre who advised that in 2020 and the first 6 months of 2021 some 90 percent of reported terrorist activity in KP province occurred in North Waziristan and most of it involved conflict between the Pakistani government and extremist groups or conflict between extremists and local Sunni groups. Orakzai, Mohmand and Kurram districts remained mainly peaceful. He also observed that security situation in Pakistan had begun to deteriorate in 2019 and that indications suggested a likely a resurgence in extremist activities in future.
Abdul Basit, a research fellow at the Rajaratnam School of International Studies, observed that after improving 2015 and 2019 the security situation deteriorated in 2020 with Taliban attacks on the Pakistan security forces in the former FATA region becoming a daily occurrence. Tactics frequently used were targeted killings, IEDs, suicide attacks, kidnappings, grenade blasts, rocket attacks and sabotage acts. He observed that the TTP [essentially the Pakistan Taliban] had reorganized and become more disciplined in 2020 following the US withdrawal from Afghanistan. The attacks appear to have largely taken the form of ambushes and IED attacks against the Pakistani security forces in North and South Waziristan Agencies. Basit predicted further declines in the security situation in the ex-FATA region.
In January 2022 DFAT observed that following improvements over recent years, the security situation in Pakistan had deteriorated since mid-2021. Causes for continuing instability included domestic politics, religious extremism, ethnic conflicts, sectarian hatred and the situation in Afghanistan. The report notes that TTP attacks increased after the Taliban took power in Afghanistan. While security forces and government officials were the main target of these attacks the TTP and others continued to assassinate political and religious leaders and to target religious minorities, including Shia.
A report issued by the Carnegie Endowment for International Peace in December 2021 and a PIPS report dated June 2022[4] note that an interim ceasefire agreement with the TPP was reached in June 2022. However, while the number of attacks in Pakistan reduced, they did not end, in part because the agreement only covered the TTP. The reports also note that despite signing the agreement the TTP appeared to be recruiting new fighters and planning further operations. The PIPS report notes that the TTP’s main concern remains the implementation of sharia in Pakistan based on its strict interpretation of Islam and that it maintains that it will not lay down its arms until that goal is achieved. It observes that the likelihood of a quick peace deal between the state and the TTP remains low.
[4] The Evolution and Future of Tehrik-e-Taliban Pakistan - Carnegie Endowment for International Peace 21 December 2021 and PIPS, Perspectives from Pakistan on Afghan Peace and Reconciliation, June 2022
As noted above, Pakistani security forces have mounted a number of campaigns against extremist groups in KP Province and elsewhere in Pakistan. However, while they have succeeded in killing many terrorists and destroying their networks it is clear that the extremist groups continue to operate in and around KP province and at least some of the evidence suggests that they may be gaining in strength. In addition, reports note that the government has been criticised for failing to protect Shia from attacks and for allowing militant organizations to operate with impunity by failing to investigate and punish those responsible for violent attacks. In an email dated 6 August 2020, Michael Kugelman observed that while security forces had managed to kill many terrorists and destroy their networks in 2015, Pakistan continued to provide an enabling environment for radicalization and extremism as a result of the prevalence of hate speech and extremist ideologies emanating from influential information sources ranging from school textbooks to religious leaders, and television shows. In 2022 DFAT noted that in-country contacts worried that the Pakistani government’s practice of ‘mainstreaming’ extremists, that is allowing former terrorists to return to communities or engage in politics, placed minorities and others at risk.
Following the hearing the applicant’s representative provided additional information.
·     copy of a UN Security Council Report dated 25 May 2022 which states that the TTP had the largest number of foreign terrorist fighters in Afghanistan and had arguably benefitted most from the Taliban takeover in that country. According to the report it has some 3,000 to 4,000 fighters located on the east and southeast Afghanistan/Pakistan border areas and has conducted numerous attacks and operations in Pakistan. Details of the location and targets of these attacks were not provided.
·     A PIPS report entitled Perspectives from Pakistan on Afghan Peace and Reconciliation dated June 2022 was also provided. It notes that the security conditions Pakistani provinces adjacent to Afghanistan deteriorated after the Taliban takeover in Afghanistan and the number of terrorist attacks had vastly increased in 2022. Approximately 46 attacks by the TTP between January and June 2022 resulting in 79 deaths. It also notes that the IS-K had reportedly carried out multiple attacks in Pakistan, including 12 attacks in KP in 2022, one of which involved the bombing of a Shia Mosque in Peshawar. The government reacted by arresting dozens of people thought to be associated with the group.
·     A number of media reports on recent attacks in the Kurram District and elsewhere in KP, including a media article dated 22 June 2022 which reports on a targeted attacks travelling near Sadda Town and Tokapi in Lower Kurram in which the chairman of a local peace committee was killed.
The applicant’s representative also noted that the South Asia Terrorism Portal records that there have been 295 terrorism-related fatalities in KP between 1 January 2022 and 5 July 2022, 92 of which have been civilian deaths.
Findings of fact
The applicant arrived in Australia (Christmas Island) by boat [in] August 2012. He applied for a protection visa on 17 December 2012. Since that time, he has provided several written statements and submission as well as providing oral evidence to the delegate, the first Tribunal and most recently on a hearing held on 6 June 2022. His evidence has remained broadly consistent throughout that process. However, while I accept that much of his evidence, for the reasons set out below, I found some of his claims to lack credibility.
The applicant claims, and I accept that he is Shia Muslim from the [Turi] tribe and that he was born in [Village 1] in [year]. I accept that [Village 1] is the traditional home of his family and that his grandfather was a Malik (local leader) in that area prior to his death. I accept that his family are well-known and well-respected in the area. I accept that he moved to Parachinar City with his family in 1995 and that while in Parachinar he lived in a house near the central mosque. I accept that he studied at the [named] college in Parachinar (the equivalent of [grade] in Australia) until 2012 and that he is therefore more highly educated than most residents in the area. I accept that he worked part time at [a business 1] jointly owned by his father and uncle [Uncle A] from 2007 until June 2012. I accept that he travelled through Afghanistan to Islamabad to obtain a passport in 2011. I accept that one of his friends was killed in a suicide bombing in Parachinar in 2012. I accept that he left Pakistan in mid-2012 because he and his family were fearful that situation in his local area and in Pakistan more generally meant that he was at risk of harm from Sunni extremists or as a result of sectarian violence.
The applicant claims, and I accept, that there was an outbreak of sectarian and terrorist violence in Kurram District in April 2007 which resulted in many deaths, displacement of people and significant economic problems in the area. However, I found portions of his evidence regarding the presence and activities of extremist Sunni groups and local Sunni residents in upper Kurram following that time confused and unpersuasive. In my view, he has exaggerated or misrepresented the situation in Parachinar to some degree. He initially suggested that he remained under surveillance and that he was at significant risk of harm from the extremists and other Sunnis from 2007 until his departure in 2012. However, during his interview with the delegate and at both hearings he stated that the Taliban had left Parachinar by the end of 2007 or early 2008 and the area was relatively safe. This is confirmed by the independent evidence. Most Sunni residents were also displaced from the upper Kurram during the violence following 2007 and had not returned by 2012. While there continued to be occasional attacks from extremists located outside the area and travel in Kurram remained dangerous for some time, the Taliban did not have a presence in Shia dominated upper Kurram after about 2008.
The applicant claims that he was an active member of the ISO in Pakistan. I accept that he belonged to the ISO at some time. However, I found much of his evidence regarding his involvement lacked credibility.
In April 2022 he provided a translation of a letter dated 28 March 2022 from the Parachinar division of the ISO which appears to indicate that he had been an active member of the group since 2007. It states thar he had taken part in welfare, social and organisational activities as well as conducting tuition for children and providing services to a library. During the hearing in June 2022, he said that he had continued his involvement with ISO after 2008 and that in addition to these activities, he had been involved in donating blood and taking people who were injured people to the local hospital where he helped to care for them.
These claims are at odds with his submissions to the Department and the first Tribunal. In his submissions to the Department, he said that he had joined the ISO after the war began in 2007 (after April 2007) and that he was active for about two years following that. He attended some seminars and assisted in the organisation of some events. In May 2015 he provided the first Tribunal a letter from the ISO dated 8 April 2009 which stated that he was an active member of the group in Parachinar for the 2007 and 2008 sessions. At the October 2015 hearing he told the first Tribunal that he had been active for in ISO for about two years but ceased his involvement when he commenced his [specified] studies because he was busy and because his parents thought it might cause problems with the Taliban.
When asked to comment on the apparent inconsistencies between his earlier evidence and the claims made at the June 2022 hearing, he said that he could not recall what he said to the first Tribunal, but his activities had varied according to the situation and all his evidence was true. I do accept this. If the applicant had continued his involvement with ISO after 2008 or been involved in activities as significant as transporting injured people to hospital, I believe this would have been mentioned in prior to April 2022. While I accept that he was involved with the group in 2007 and 2008, I do not accept that he had any involvement following that time or that he was involved in activities such as transporting or caring for injured people.
In reaching this conclusion I have considered the March 2022 letter purported to be from the ISO. However, while it confirms that the applicant became active with group in 2007 it does not clearly state how long this involvement continued. It states that he “was an active member …since 2007” and “used to be” involved in a range welfare and social activities including providing tuitions for the children and services for the library. It makes no mention of assisting wounded people. I accept that it may have been issued by ISO. However, I have given it little weight in regard to the period of his activities and no weight in relation to his claimed involvement in assisting people who had been wounded.
The applicant claims that he and two or three friends established a library in Parachinar in 2007. In his December 2012 statement he said that the library was established some three months after he joined ISO, which suggests it opened in about July 2007. He described it as a religious library which offered tuition on religious matters. He claimed that it was burned down by the Taliban in about October 2007 and that the Taliban left a letter warning him and his friends to cease their activities and join them. After this he and his friends closed the library for a short time and were not very active in religious education when it reopened. In July 2013 he told the delegate that he and his friends had reopened the library because the Taliban had left Parachinar and they were no longer at risk of harm.
During the October 2015 hearing the applicant said that the library occupied a single room [in a location] of a market building and that he and his friends were mainly involved in helping students with school subjects such as mathematics and social studies. When the Tribunal noted he had previously described the library as a religious institution he said that they had some religious texts, but their main focus was helping children who had difficulties with their studies. In October 2007 the Taliban broke in, burned from books and left a warning letter. He said that he and his friends reopened the library about February 2008, but they were not very active. He said that the Taliban left Parachnar by early 2008, but they continued to launch attacks from the nearby mountains.
In May 2015 the applicant provided the first Tribunal a copy of a partially burned letter dated 14 October 2007. It states that the Taliban had burned the library and threatened to behead the head of the library [variant of the applicant’s name] and his unnamed friends if they continued to engage in the conduct of infidels. It adds that they should join the Taliban and threatened to kidnap their families.
During the October 2015 hearing the applicant said the letter had been forwarded by his family. The Tribunal advised the applicant that he doubted that the letter was genuine as it did not name him accurately and according to DFAT fraudulent documents can easily be obtained in Pakistan. The applicant said that while it might be possible to obtain fraudulent documents in cities, this was not the case in his local area. He said that people in Pakistan were generally known by one name only and the Taliban would have guessed his surname was [the incorrect family name] because this was a common Shia name.
In a statement dated 19 April 2022 the applicant said the library was established to provide tutoring so students could learn more about Shia Islam. His friends made all the arrangements to set up the library. At the time the Taliban monitored everything in Parachinar. In October 2007 they ransacked the library and left a threatening letter. He said that the letter probably referred to him [with the incorrect family name] because [that family name] because this is a common Shia name. He said that he and his friends opened another library in about November 2007, but they did not promote it widely.
At the hearing in June 2022, I observed that applicant had initially stated that he and his friends had opened a religious library, but later said that it was mainly involved in helping local students with their normal studies. He said that the library was mostly focused on non-religious education, but one of his friends had provided some religious books. He confirmed that some Taliban members broke into the room at night in October 2007 and burned some books. No other rooms were damaged.
I noted that the applicant’s friends were not named in the letter and his name was not correct. He said that he believed this was because he lived Parachinar while his friends lived in a village and because they people who wrote the letter guessed his name was [an incorrect name]. I noted that he had previously said that his family was well known. He said people in the area were commonly known by one name.
I accept that the applicant had some involvement in a library and tutoring students in school subjects at some time prior to his departure from Pakistan. However, I found his evidence regarding the nature of the library and the attack by the Taliban in 2007 confused and unpersuasive and I do not accept that he was personally threated by the Taliban in October 2007 because of his involvement in a library in Parachinar. He initially claimed that he and his friends established a religious library but said that the library had little or no involvement in religious education. He initially claimed that the Taliban burned down the library, but later said that they had broken in a burned some books. The letter which he claims was left by the Taliban is addressed [to the incorrect name], the head of the library. The applicant’s name is [name] and he has never claimed to be the head of the library. His evidence at the hearing suggested that his friends played a more prominent role in establishing and running the library. And while I accept that people in the Pakistan may often be known by only one name, I find it extremely unlikely that the Taliban would have been unaware of the applicant’s full name if he was a member of a prominent family and was under surveillance at the time as his evidence suggests.

In reaching this conclusion I have considered the copy of letter provided by the applicant in 2015, but I do not accept that it is a genuine document. If the applicant’s parents had possession of the letter when he applied for protection, I believe he would have provided a copy with his initial application or at least have mentioned that he could obtain a copy when discussing his claims with the delegate. In addition, the copy provided indicates that the letter has a ragged edge and scorch marks, apparently due to the document being partially burnt. In my view it is not plausible that the Taliban would have left the letter where it risked catching fire from one of the few books which were burned and extremely unlikely that a paper document would not have been burned on all edges but not completely destroyed by fire. While these concerns would not have been sufficient for me to conclude that the document was not genuine if the applicant’s evidence regarding the library and the threat had been convincing, this is not the case and I find these matters to be further indications that the document is not genuine.
The applicant claims that he was followed by members of the Taliban when he travelled to Islamabad to obtain a passport in [2011]. I found his evidence regarding this incident was confused and unpersuasive.
In his written submissions to the Department, he said recognised them as members of the Taliban because they were originally from Parachinar. During the October 2015 hearing he claimed that he was followed by three men he recognised from Parachinar. When asked how he knew that the men were members of the Taliban he said that their dress and long beards and the fact that they were following him indicated that his was the case. The Member observed that many people in Peshawar were likely to have a similar appearance. The applicant agreed that this was true but said that when he began to run the men also began to run which made him believe that they were from the Taliban and he was afraid they might kidnap him. At the hearing in June, I asked the applicant if he could provide any details regarding the identity of the men who had followed him in Peshawar. He said when he went to the market, he was followed by some men who he knew to be members of the Taliban from Parachinar. I asked if this was because he remembered seeing them in Parachinar. He said that he had not seen them in Parachinar, but he believed they were from the Taliban because of their appearance and their dress. I asked why he had assumed that they were from Parachinar. He said that he was not saying that they were definitely from Parachinar, but he believed that they assumed that he was a Shia from Parachinar because he was staying the hotel where most Shias from Parachinar stayed.
In light to my findings on the applicant’s lack of credibility in relation to other issues and the confused and contradictory nature of his evidence regarding this incident, I am not satisfied that he was followed by anyone during his time in Peshawar.
The applicant claims that his uncle [Uncle A] was threatened by the Taliban when he was briefly transferred to work as [an occupation 1] in a hospital in [Village 1] in about September 2011. In May 2015 he provided a copy of a letter purported to be from the Taliban dated [in] September 2011 which refers to [Uncle A] as [an occupation 2] and threatens to kill him if he does not cooperate with the Taliban. During the October 2015 hearing the first Tribunal observed that [Uncle A] was working as [an occupation 1] in [Village 1]. The applicant said that the people who sent the letter were not well educated and would not have known the difference and in post hearing submission noted that [Uncle A] was well known as the owner of [an occupation 2 business] in Parachinar. The first Tribunal found that the letter was a fraudulent document and did not accept that the applicant’s uncle had been threatened by the Taliban in September 2011.
I share the first Tribunal’s concerns regarding the letter purported to be from the Taliban. However, I note that [Village 1] continued to be impacted by the presence of extremists after they ceased to operate in Parachinar and for the purposes of this decision, I accept that [Uncle A] may have been threatened while working there.
The applicant claims, and I accept, that while his family was relatively wealthy in the past, but now face reduced circumstances due to the economic problems and caused by the violence and isolation which began in 2007 and the division of family property following the death of his grandfather. I accept that his immediate family left Parachinar and returned to their traditional home in [Village 1] because his father inherited land in the area following his grandfather’s death while other members of the family inherited the family property in Parachinar. I accept, that the population in the local area where his family currently resides are Turi, but there are Sunni tribes nearby. As noted above, [Village 1] is in Lower Kurram where most of the population is Sunni. I accept that the presence of Sunni tribes close by has placed some restriction on the applicant’s family’s ability to travel and attend school.
After carefully considering the applicant’s claims I accept that he is a Shia Muslim of Pashtun ethnicity from the Turi Tribe and that he has lived in Kurram District all of his life first in [Village 1], then from1995 to 2012 in Parachinar. I accept that his family is well-known in Kurram District and that his grandfather was a Malik in that [Village 1] prior to his death. I accept that he had a limited involvement with the ISO while he was a student, that his immediate family have returned to live in [Village 1]. I accept that he genuinely fears that he is at risk of harm in Pakistan because of his religion and tribal affiliation.
consideration of the allicant’s claims
It is clear from the country information that Kurram District has experienced periods of significant sectarian and extremist violence in the past two decades. The most violent period appears to have been between 2007 and about 2013 when there was a significant outbreak of sectarian violence. There were significant improvements in the area after 2013 and reports indicate that Kurram District has been relatively peaceful in recent years. However, the area has continued to experience attacks by extremist groups and as noted by DFAT the underlying causes of the violence remain unchanged. These causes include religious extremism, ethnic conflicts and sectarian hatred. In addition, the evidence indicates that extremist groups such as the TTP continue to have a strong presence in districts surrounding Kurram District and across the border in Afghanistan. And is clear that these groups remain committed to continuing with their attempts to impose their will in KP province and elsewhere in Pakistan. Furthermore, a discussed above, DFAT and others report that the situation in KP province in general has deteriorated since about 2020 and informed observers expect a further deterioration in security in the area in future.

75. In my view the evidence does suggests that most Turi Shia in Kurram District are currently unlikely to experience sectarian or terrorist violence. Recent reports describe Kurram District as relatively peaceful. There do not appear to have been outbreaks of sectarian violence in the recent past and while there have been a number of terrorists attacks and some targeted killings in the area, they appear to have been relatively small in number. That said, it also clear that underlying causes of the past violence remain unchanged and the security situation in the area is deteriorating. Recent developments in Afghanistan add to the volatility in the area and could possibly result increased violence by Sunni extremist groups. In these circumstances the possibility of a surge in serious sectarian and extremist violence in Kurram District within the reasonably foreseeable future remains a very real possibility.
76. In the applicant’s case he would no doubt reside with his family in [Village 1] at least to begin with. [Village 1] is located in Lower Kurram where the majority of the population are Sunni. This would make him more vulnerable in the event of another outbreak of sectarian or extremist violence. It is also clear that he would need to travel outside [Village 1] to seek employment. Shia travelling outside areas where they are in the majority have been targeted by extremist groups in the past and recent evidence suggests this continues to be a problem. The evidence also suggests that people in leadership positions are more likely to be targeted and the applicant’s family’s status in the area may also increase the likelihood that he would be targeted.
77. After considering all of the relevant evidence, I am satisfied that the applicant faces a real chance of suffering serious harm for reasons of his Shia religion in the reasonably foreseeable future if he returns to Kurram District.
78. In reaching this conclusion I have considered whether the applicant could access an adequate standard of protection if he returned to Pakistan.
79. While the Pakistani government has conducted campaigns against extremist groups operating in KP Province, they have not succeeded in eliminating the threat of harm to individuals or groups likely to be targeted. Furthermore, according to reports the situation is deteriorating, which indicates that the government’s ability to control the situation is lessening. In my view the evidence also suggests that while the government is committed to eliminating the threat to their control posed by these groups, they are less committed to protecting minority groups such as the Shia Turis. As noted above, they have shown little willingness to tackle the underlying causes of the violence against these groups and have sometimes adopted strategies such as mainstreaming’ extremists which places minorities at risk of harm.
80. In the current circumstances, I accept that the applicant would not be able to access appropriate protection against the harm he fears if he returns to Pakistan and resides in Kurram District.
81. Finally, I have considered the possibility that the applicant could avoid the harm he fears in Kurram District by relocating within Pakistan.
82. Shia Muslims comprise between 10 and 25 per cent of the population of Pakistan. In my view the evidence does not suggest that all Shias in Pakistan face a real chance of experiences serious harm because of their religion. In 2022 DFAT noted that Turis ability to relocate to other parts of Pakistan was heavily dependent on their financial means and having personal, family and tribal networks in the new location. The applicant has been unemployed in Australia for some time and has no financial resources of his own. His family also appear to have limited financial resources to support him if he lived apart from them. He may perhaps be able to access some support from tribal networks elsewhere in Pakistan, but he does not have personal or family networks outside Kurram District. More significantly he is suffering from mental health issues which, according to medical professionals who are treating him would worsen if he returned to Pakistan. There can be little doubt that living apart from his family in Kurram District in circumstances where he would not have support networks would cause further deterioration in his mental health. And his mental health issues combined with lack of support would almost certainly mean he would be unable to find employment and that he would have difficulty accessing secure accommodation.
83. After considering all of the evidence, I find it would not be reasonable for the applicant to relocate to another part of Pakistan where he would not face a real chance of serious harm for reasons of his religion.

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

85. 120. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Roslyn Smidt
Member

and As Fata merges with KP, Parachinar’s Shias tell Sunnis it is time to come home, 28 June 2018 ttps://

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2107276 (Refugee) [2022] AATA 4548

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[2022] AATA 4548

14 October 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies