2107757 (Refugee)
[2023] AATA 2374
•19 January 2023
2107757 (Refugee) [2023] AATA 2374 (19 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Gerard John Gleeson
CASE NUMBER: 2107757
COUNTRY OF REFERENCE: Pakistan
MEMBER:Justin Meyer
DATE:19 January 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 19 January 2023 at 1:21pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Shia – accused of shooting Sepah member – threats and persecution from Taliban – cannot relocate – state protection unavailable – mental health issues – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 on 14 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 21 March 2016. The delegate refused to grant the visa on the basis that:
·The applicant’s profile was sufficient warrant the attention of what Taliban and Sepah-e-Sahaba militants remain in his home area, thus satisfying s5J(1)(a) and (b) of the Act.
·The applicant’s religion would be the essential and significant reason for the persecution, thus satisfying s5J(4)(a).
·The persecution would involve serious harm (as defined under s5J(5)) to the applicant, thus satisfying s5J(4)(b).
·The persecution would be carried out in a systematic and discriminatory manner, thus satisfying s5J(4)(c).
·While the applicant’s fear of persecution in Hangu District was well-founded, the real chance did not apply to all areas of Pakistan per s.5J(1)(c). Groups feared by the applicant with whom he has a profile are not active in Islamabad and are not capable of harming the applicant in Islamabad.
The Tribunal – differently constituted - affirmed the delegate’s decision on 4 September 2020. That decision was set aside by the Federal Circuit Court by consent [in] June 2021 on the basis that the Tribunal:
fell into jurisdictional error as it misconstrued its statutory task in s 36(2)(aa) of the Migration Act 1958 (Cth) by failing to ask itself whether there is a real risk that the applicant will suffer significant harm as a result of general violence and by requiring the applicant to demonstrate a nexus between the real risk of significant harm and his past claims of persecution
Thus, the matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [MrA], who is the applicant’s employer. 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. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Pakistan and if not, whether 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Identity
The applicant's identity is established as a [age]-year-old male, as evidenced by a Pakistani passport. Thus, there is evidence, including a national identity card, before the Department and the Tribunal confirming identity and nationality.
Mental health
Having noted the applicant’s claims of mental trauma over years, The Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information.
Background to claims
The applicant departed Pakistan [in] April 2011 and flew to [named country], having transited in [a second]. The applicant then travelled by boat to Indonesia. The applicant then travelled to Australia by boat and arrived in Australia [in] August 2011. The applicant’s migration history, upon his arrival in Australia is detailed in the delegate’s decision as follows:
29 Nov 2011 Lodged application for a Protection Obligation Determination (POD).
25 Jan 2012 POD assessment negative.
17 Jul 2012 Independent Protection Assessment (IPA) (obligation owed).
23 Nov 2015 s.46a(1) bar lifted for lodgement of protection visa.
23 Nov 2015 Invited to apply for a protection visa.
21 Apr 2016 Lodged Application for a Safe Haven Enterprise Visa (SHEV).
10 Oct 2017 Attended an interview in respect of his SHEV application.
The Tribunal has considered the documentation provided by the applicant in support of his application, including:
·Irregular Maritime Arrival Entry Interview dated 17 October 2011.’
·The Government of Pakistan, Certificate for Children Under Eighteen years
dated [October] 2011.
·Marriage Certificate Form, dated of marriage [January] 2004.
·Applicant’s Pakistan National Identity Card, issued [June] 2008.
·Elder’s Statement.
·Applicant’s Secondary School Examination Certificate, Session [year].
·Applicant’s passport.
·Domical Certificate dated [April] 2011.
·Character certificate dated [June] 2008.
·National Police Certificate dated [June] 2013.
·Medical Certificate [dated] [August] 2013.
·[Hospital] Inpatient Discharge letter dated [October] 2011.
·Letter by [name deleted] dated 28 March 2012.
·Various IHMS medication Orders.
·IHMS Referrals dated 5 March 2012, 3 April 2012, 21 February 2012.
·International Health and Medical services, Medical Request Forms dated 22
March 2012, 7 March 2012, 29 February 2012, 19 February 2012.
·Letter from [named doctor] dated 12 January 2012.
·Various IHMS Standard Health Event.
·Various IHMS Non-consult Note.
·Various IHMS mental state assessments.
·Various IHMS Depression, Anxiety and Stress Scale.
·Independent Protection Assessment dated 17 July 2012.
·Applicant’s Statutory Deceleration dated 6 October 2017.
·Applicant’s submissions dated 12 October 2017.
·Medical Reports [undated] and dated 24 January 2020.
·Applicant’s Statutory Declaration dated 15 May 2018.
·Medical certificate by [Dr A] dated 15 October 2019 & 27 January
2020.
·Applicant’s submissions dated 28 January 2020.
·Letter by [Mr A].
·Affidavit by [named persons] dated 11 February 2020 (‘the Elders Affidavit’).
·Affidavit by [named person] dated 11 February 2020 (‘the [name] affidavit’).
·The Nation, ‘Jhangvi’s election failure of system’ dated 3 December 2016.
·Appendix E- Statement of reasons -Lashkar-E-Jhangvi (LeJ).
·Untranslated statement said to relate to threats to the media by members of
Sepah.
The applicant’s claims
The applicant’s claims are contained in his IAAAS Interview record dated 15 November 2011 and his statutory declarations dated 6 October 2017 and 15 May 2018. The applicant’s claims for protection as provided in his IAAAS interview are as follows:
Why did you leave your country of nationality or if stateless, your country/s of residence?
My life was in danger in Pakistan. I am a Shia Muslim and was targeted.
In or around 2006 in Hangu, there was a religious ceremony taken place. There was a procession in which a suicide bomb happened there. After the attack, the situation in Hangu deteriorated. During every anniversary, the Sepah-e-Sahata attack the people who commemorate this event of religious ceremony -10 of Maharam; the Shia Muslim are attacked.
Both the Taliban and the Sepah consider the event is unlawful/un-Islamic.
There is another event on the New Year’s Day. They target people celebrating
this as well – Naru day. The Taliban and Sepah stop Shia Muslim from
celebrating joyful and mourning days as they think that this is unlawful and un-
Islamic.In the 2006 event at the suicide bombing, many shops in the market including my
[shop] were burnt. I rebuilt it from scratch to start again.
In 2008, missile attacked two Imam Barge and many people died whilst
commemorating 10 of Maharam. Then afterwards, people (Shia Muslim) move
away from Hangu around the commemorating time of 10 of Maharam. My father
dies in the same year because of natural death. My neighbouring [shop]
operator told me that some people asked about me. They attacked suspiciously
with guns in 2 cars. Some Shia Muslim got abducted in the area and other killed.
In 2009 around 10 of Maharam, I took my family to Peshawar to stay away for
safety. But there was violence by the Taliban and Sepah in Hangu. My uncle
checked my house there and found that it was damaged. People came to talk to
my uncle about my whereabouts. These are Sepah people. During the fighting a
member of the Sepah group was killed by firing from my house as they alleged.
My uncle told them that I was in Peshawar and can’t fire at the Sepah. I went to
explain to the family of the deceased. They told me to the Sepah group to give
an explanation. I did not go because they do not like us and treat us as enemy.
Then I received 2 phone calls. One from the Taliban who said that I have shot
dead a member of the Sepah group. They have been told to target me. Another
was from the Sepah group mentioning the same thing.I changed my sim card. I went to the elders to explain. They advised me to leave
the area. I then went to [another area] for safety by myself. My family stayed with my uncle. I worked as a [Occupation 1] in [that location]. There I intended for escape to Australia. My uncle organised my trip with smugglers.I went back to [Town 1] to see my mother and my family to say farewell before leaving for Australia.
What do you fear may happen to you or your accompanying family members if
you go back to your country of nationality or if stateless your country/s of
residence?I worry about being targeted by the Taliban and Sepah. I would get killed.
What harm, if any, have you experienced in your country of nationality or if
stateless your country/s of residence?I haven’t been captured.
The applicant’s claims, as noted by the delegate
The decision record summarises these claims from the applicant’s initial application for a Protection Obligations Determination (PO):
· He is a Pashtun and a follower of Shia Islam from [Town 1] in Hangu District in the province of Khyber Pakhtunkhwa, Pakistan. He is married with four dependent children.
· His village is mainly Shia Pashtuns and there is another Shia Pashtun village in the area, but the rest were predominately Sunni villages and towns.
· There is a long history if sectarian violence in the area. Shia have been targeted for performing religious ceremonies and violence against the Shia by Sunni extremists’ groups such as the Taliban is increasing.
· The applicant’s house is in a group of [number] houses a small distance away from the main village.
· His mother would hold ceremonies once a year commemorating the Shia day of Karbala. Ceremonies were performed at his house and all the women from the [nearby] houses attended.
· In 2009 near the time of Muharram, fearing attacks by Taliban, the applicant took his family to Peshawar and when they returned, his house had been ransacked.
· His uncle told him the Taliban had come looking for him, and that he was accused of firing at the Taliban through his window during their attack on the village. However, the applicant was in Peshawar at the time.
· He tried to resolve the issue through the elders, but the Taliban would not negotiate, and the Taliban later burnt down his house.
· He fled to Rawalpindi and was in hiding whilst working as a [Occupation 1].
· Before he left Pakistan for Australia, he returned to his village by bus to farewell his family and stayed for nine (9) days.
· His family still reside in his home; no harm has come to them because they are living with his uncle and they are generally safe within the village and his mother no longer performs the Shia Ceremonies.
· He is safe within the village, however, if he ventures out of the village he will be killed by the Taliban.
The delegate’s decision also summarises the applicant’s claims for protection as detailed in a statutory declaration submitted in support of his application for a Safe Haven Enterprise Visa. The delegate’s decision notes that the applicant reiterated his claims raised in the IPA review and that his statutory deceleration, dated 6 October 2017, expanded some of the applicant’s previous claims. The summary of these claims is as follows:
· After his home was destroyed by the Taliban in 2009, he received about five threatening telephone calls saying that he would die and then changed his telephone number. In one call he was told ‘You Shia people are not clean; we will move you from the area.’ He also received threatening letters for the Taliban every week or so which he would throw out. The letters said that the Taliban would kill and clear the Shia people from the area.
· The applicant suffers from depression and cannot take tablets to treat the condition because he had a history of kidney stones. His blood pressure is high and for this he takes garlic which is a traditional remedy. He has very bad headaches and has previously been taken to hospital as a result. He also has blurry vision and has referred to the Eye and Ear hospital in Melbourne who found that the cause was due to anxiety.
· He has not seen a psychologist although his GP suggests that he should, but the applicant is so lethargic because of the depression he suffers from. He cannot return to Pakistan because of his health and will never be able to receive the medical treatment that he needs.
· His brother-in-law was shot a few months ago in Pakistan.
· As a Shia Pashtun he cannot live safely anywhere in Pakistan. The government
of Pakistan is unable to protect him.
Evaluation of the applicant’s evidence in the hearing
The applicant said that he was active as a religious man. He was a normal Shia, he said.
The applicant said that on the eve of the Mourning of Muharram women would gather at their premises.
I asked whether he continued such observance when he needed to depart his village. He said that in 2009 his house was demolished. I asked what else his mother did as Shia religious observance. She did Ashura practice where she recited every time. His mother was involved in certain funeral traditions. Rather than just recite she led the practice. Practices included bathing dead bodies.
He recalled this taking place when he was a child and through young adulthood. His village was majority Shia. It is in the Hangu District. It is near a bazaar. His father had a [shop].
Pilgrimages were part of the family’s life. They visited Iraq and Iran. Two of his sisters remain in Khyber Pakhtunkhwa and are married. His wife and children remain in Pakistan. This is because women and children are not targeted. His brother-in-law was shot in Wanna.
His brother-in-law was in a government-backed militia and was shot by an insurgent, sustaining injuries. His brother-in-law later died when given a battery radio which exploded as it had an explosive device placed in it. The brother-in-law resided some 80 to 100 kilometres away. There was a news report in [a] newspaper on this death, the applicant said.
I asked the applicant who the insurgents were, to which he replied that they were Taliban. They were motivated as anti-Shia. The militias were protecting Shia sites. He said that he had to minimise his Shia activities between 2006 and 2008 because of the situation. By 2012 he was in Australia.
I enquired as to his time in Peshawar in 2009 near the time of Muharram. He said he was there for 10 days. He returned quickly because he heard the house in Hangu was “demolished”. He had to come back. His family stayed behind in Peshawar.
I asked if he had been accused of firing a gun for example. He agreed that he had been so accused of shooting a person. This I took as an elaboration of his written claim that “one from the Taliban who said that I have shot dead a member of the Sepah group.” He said it was said to his uncle and relayed to him. This was consistent with his written account that Sepah people came to talk to his uncle about his whereabouts and that his uncle told them that the applicant was in Peshawar and could not be responsible. He said that this was a warning from the Taliban.
Overall, this was a consistent account that he had been accused of fighting and killing Taliban associates. I asked how it could be that people thought that gun shots had been fired from his house at victims. He said he was not there and did not know. It was a baseless allegation made because he was Shia. Other buildings were destroyed but he could not readily recall the names of all of the victims, but remembered a victim [who] was his sister’s husband, killed by the Taliban. That house was destroyed, as many other houses were.
The applicant was told that he needed to leave so he went to Rawalpindi. He went alone and was there for one year - until 2011.
The applicant said that his family are now at his uncle’s house.
He received calls from ‘holy people’ three or four times warning him that he was not welcome. There were addressed letters to him threatening him every week or so. He heard about them but did not read them personally.
I asked how these Sunnis had his telephone number. He said from his [shop] and they were therefore able to ring him.
The husband of his other sister was shot in the neck in 2017. This took place in Hangu. He believed these were Taliban but did not have police or media reports on this incident. I asked if this was a random attack or targeted. The applicant said that this brother-in-law was riding on a motorbike.
The border with Afghanistan had opened in recent times and Taliban were freely crossing into Pakistan. A school had recently been attacked. Militias and security forces could not defend others and were not safe themselves, he said. A relative who is a police officer had recently been shot.
Before he left Pakistan for Australia, he returned to his village by bus to farewell his family and stayed for two to three days. He agreed that this was a risky thing to do. He said he took precautions not to be noticed. He was brought in and did not walk around in daylight hours. He made a visit to his wife and children as well before departing the country. The Tribunal considers that this was a risky activity but plausible given the applicants desire to leave the country permanently and the inevitable pull of family ties.
His family are now in [Town 1] and he communicates with them. In the village Taliban are active, he said.
The Tribunal discussed them most recent Pakistan country report from DFAT[1]:
[1] DFAT Country Information Report, Pakistan, 25 January 2022
2.35
Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks.
…
Domestic jihadist groups
2.39
A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
2.40
TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have re-pledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.
2.41
Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan.
The Tribunal observes that there has been a recent upswing violence from extremist groups such as the TPP.
DFAT discusses Shias in these terms:
3.55
Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions.
3.56
Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.
3.57
Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’. 3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. Anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision).
3.59
Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.
3.60
Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS (see Security Situation). These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras, see Hazaras), compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.
3.61
DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a face specific, heightened risks.
The applicant said that sooner or later he had to face the consequences if he were in Pakistan. He said that he had been accused of murder.
I asked if he had any evidence of this assertion, other than his oral evidence. He said that little of this information was in the news media.
I noted that the department had stated in its decision that he could live in Islamabad. The applicant said that Pashtuns can be identified in Islamabad and he would have to take his family with him. Language and physical appearance would identify him. He said it would hard to find a place to live and a job. He said he had lived in fear and intimidation and in hiding. It would be easy for them to come and find him. He also feared that he could perversely linked with the Taliban himself as a Pashtun.
I discussed the applicant’s depression and PTSD diagnosis. He said he was broken and that there was just his body left. He keeps forgetting things. He becomes angry for no reason.
He has blood pressure issues and kidney stones. He said that he could not get a job or hold down a job in Pakistan with his issues. There is discrimination and he has a fear of intimidation. He said they would “fire me after a week.” He was reliant on medication and he could not get access to the experts that he sees in Australia.
[Mr A], his employer, gave in-person evidence testifying as the good character and reliability of the applicant. He knew of the applicant’s challenges with his mood and mental state and noted that he had been forgetful on occasions despite being a good worker. I give weight to this evidence.
Analysis and findings
From consistent written and oral evidence, the Tribunal concludes that the applicant’s biographical details and life narrative are as he has stated.
He is a [age] year-old Pakistani man. He is Pashtun, and an observant Shia Muslim.
I have no reason to find that he has embellished or invented any of his account. I find that the applicant was threatened in the way he described.
The applicant has not departed in any substantial sense from the account of events and circumstances that he has relayed in various interviews and hearings.
I accept that:
· He is from [Town 1] in Hangu District in the province of Khyber Pakhtunkhwa, Pakistan. He is married with four dependent children.
· His village is mainly Shia Pashtuns and there is another Shia Pashtun village in the area, but the rest in the area were predominately Sunni villages and towns.
· His mother would hold and conduct Shia ceremonies.
· In 2009 near the time of Muharram, fearing attacks by Taliban, the applicant took his family to Peshawar and when they returned, his house had been ransacked.
· After his home was destroyed by the Taliban in 2009, he received threatening telephone calls saying that he would die and then changed his telephone number. He also received threatening letters from the Taliban.
· His uncle told him the Taliban had come looking for him, and that he was falsely accused of firing at the Taliban through his window during their attack on the village.
· He tried to resolve the issue through the elders, but the Taliban would not negotiate, and the Taliban later burnt down his house.
· He fled to Rawalpindi and was in hiding while working as a [Occupation 1]. He went alone and was there for one year - until 2011.
· Before he left Pakistan for Australia, he returned to his village by bus to farewell his family and stayed for a brief period.
· The applicant suffers from depression anxiety, as confirmed by a letter from his treating psychiatrist. He has high blood pressure.
· His brother-in-law was shot in Pakistan.
The Tribunal is of the view that the applicant is fearful of returning to Pakistan due to potential sectarian violence being directed against him.
The applicant has a variety of medical and psychological conditions. There is a report submitted dated 15 November 2022 from [Dr A], a consultant psychiatrist, to this effect.
An extract from [Dr A]’s report is as follows:
[The applicant] reported that he was given conflicting information throughout these past few years, regarding the status of his visa and this has caused him significant anxiety, frustration and has led to ongoing low mood, lack of motivation and increasing feelings of hopelessness, helplessness and worthlessness.
Furthermore, [the applicant] has been separated from his family and children for many years and he continues to live in Australia, far away from everything that was familiar to him and in a situation where he finds himself unable to return to his country.
He reported that he left Pakistan because he belonged to a marginalised Shia community and this community is constantly threatened by the Taliban who persecute people and have been attacking and kidnapping people.
He said he did not have any previous mental health issues until he came to Australia and has since then been living a life of anxiety and social isolation.
[Dr A] had seen the applicant regularly before the Covid-19 pandemic and reviewed him in November 2022. He stated regarding the most recent consultation:
[The applicant] described feeling very depressed, was quite tearful while describing his ongoing challenges with obtaining a visa and the long separation from his family. He described feeling constantly anxious with poor sleep, feeling hopeless, helpless and lacking in motivation.
..
I have provided [the applicant] a diagnosis of a major depressive disorder with a differential diagnosis of an adjustment disorder with anxiety symptoms.
…
In my assessment on 8 November 2022, [the applicant] was on escitalopram 20 mg orally daily and melatonin 2 mg orally nocte. I have recommended to [the applicant] to wean off the escitalopram and consider commencement on fluoxetine 20 mg orally mane. I will also be writing to [the applicant]'s general practitioner to refer [the applicant] to the [named] Clinic where he can obtain regular treatment along with ongoing psychological support given his current challenging situation.
…
[The applicant]'s prognosis remains quite modest given the uncertainty of his visa situation and the factors that his prognosis is completely based on him being successful in obtaining a positive outcome in his visa situation and being reunited with his family.
The applicant’s mental health has deteriorated over the years in Australia, and the Tribunal concludes that his ability to cope with future harm would exacerbate his risk.
A considerable proportion of his mental suffering appears to be caused or linked to the violence and threats he has suffered. His anxiety, depression and adjustment disorder make him especially vulnerable to threats upon his return. I do not accept that with the passage of time militants such as the Pakistan Taliban might overlook or forget the Shia activities he and his family have has engaged in. This does not seem a reasonable proposition to the Tribunal’s mind. The poor state of the hospital and medical system in Pakistan might well worsen his situation, per DFAT’s latest report ([2.10] “The overall standard and availability of healthcare in Pakistan is low. The Lancet’s Healthcare Access and Quality Index ranks Pakistan’s healthcare system 154 out of 189 countries”).[2]
[2] DFAT Country Information Report, Pak istan, 25 January 2022
The Tribunal considers the country information, which points to problematic anti-Shia activities and attitudes in Pakistan.
The Tribunal notes DFAT’s assessment that Shia “face a moderate risk of sectarian violence”.
The Tribunal observes that violence levels had risen in recent times in Pakistan, that terrorist attacks increased in 2021, following an earlier downward trend and that Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks.
The Tribunal notes that there are recent reports of an emboldened Pakistan Taliban joining with the Afghani Taliban. Border fencing has been removed allowing ease of access for Afghani Taliban to enter the country. There has been an apparent uptick in terrorist activity in regions of Pakistan as a flow-on effect. A recent report from the Middle East Institute, a Washington-based institution and non-partisan think tank, states:
Following the upsurge in Islamist militancy in tribal areas, Pakistan’s security forces are facing direct attacks from the TTP, leading the government to complain about terrorist safe havens in Afghanistan. Indeed, the alliance between the Afghan and Pakistani Taliban seems stronger than ever and there are signs of integration across the Durand Line.
Not ready to accept Pakistan’s border-fencing activities, which are viewed as “one-sided,” “illegitimate,” and an attempt to change the status quo ante, Taliban fighters are reportedly removing the barbed-wire fence at many places along the Durand Line.
According to one Pakistani think-tank, the county has seen a 50% spike in terrorist attacks since the Taliban returned to power in Afghanistan, underlining the fast-deteriorating security situation.
Pakistan’s borderlands are witnessing an alarming increase in the number of extortions, kidnappings for ransom, and other forms of racketeering. Wealthy residents and local lawmakers alike are being blackmailed to pay extortion money to the TTP, which enjoy freedom of action in Afghanistan. There has been a significant rise in the TTP’s extortion activities in Karachi in the past few months.[3]
3. Pakistan-Afghan Taliban relations face mounting challenges | Middle East Institute (mei.edu)
The level of state protection is low for the applicant, per DFAT’s report [4]:
[5.1]
Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).
5.2
Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
[4] DFAT Country Information Report Pakistan, 25 January 2022
I find that there would be tenuous state protection for him. As terrorist and criminal organisations are broadly across the country, I cannot foresee that relocation for him is a feasible option. The risk that he faces as a Shia and Shia organiser or former organiser and or participant is across broad areas of Pakistan, as the country information suggests. The real chance of persecution is not localised and it is not apparent that there is an area in the country where there would not be a real chance of persecution. The Tribunal respectfully considers the delegate’s suggestion that Islamabad for example would be a safer option to be unwarranted in this case. I note DFAT’s advice at [3.59] that “Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities”, points away from such a conclusion of greater safety.
Therefore, I find that the applicant has a well-founded fear or persecution on the grounds that he is a Shia organiser and/or participant, and thus on the grounds of religion. Cumulatively the matters raised, including his mental health, lead the Tribunal to this conclusion.
The risk he faces is a moderate risk and is a real risk now and in the foreseeable future if he is returned to Pakistan. There is no evidence he can live elsewhere in a safe third country.
The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his religion. On the basis of the evidence before it, including the country information cited above, the Tribunal is not satisfied that state protection is available to the applicant in Pakistan. The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Pakistan. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Pakistan for the reasons stated.
He is not required to engage in behaviour that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic of the person. His religious conscience and identity are deeply ingrained in his life and persona.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Justin Meyer
MemberAttachment - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
-
Natural Justice
-
Remedies
0
0
0