Evidence
Evidence Before The Court
For the following reasons, I have concluded that the decision under review should be affirmed.CONSIDERATION OF Claims and evidence The applicant is [an age] year old male born on [date] in [Village 1], Kurram District, Khyber Pakhtunkhwa, Pakistan. He is a Pashtun of the Bangash tribe and a practicing Muslim Shia. [Village 1] is a village about [distance from] Parachinar, the capital of Kurram District, and in the centre of an isthmus of Pakistan territory that reaches into Afghanistan. The applicant explained that the majority of residents in this area are Shia of two tribes, either the Turi or Bangash. The applicant fears returning to [Village 1] for the reason that people of the Shia faith have been targeted by the Pakistan and Afghan Taliban. The applicant described his time living in [Village 1] as stressful and unsafe. He said that no one had an idea of what was going to happen when they left the house. He feared bomb blasts, targeted killings and everything else. He explained that it wasn’t a matter of tribal conflicts that would lead to worrying about his life. Nor did he experience a Sunni-Shia divide within the Bangash tribe adding that he knew that Sunnis lived in Parachinar and some of the villages close by. The applicant said that nothing happened to him while living there. But he said that his village was an open-air prison, in which he had to stay local so as to stay safe, whereas others who had to travel outside were killed. The applicant acknowledged that this was during the peak of the conflict with the Taliban between 2007-2009, but he said that people continued to fear bomb blasts and targeted killings afterwards. The applicant’s father is claimed to be a highly educated village elder and to have been involved in jirgas as a senior representative. The applicant explained that his father was their village’s representative to the main Shia organisation in the area, [Organisation 1], for three years between 2010-2013. He explained that jirgas were held between Shia and Sunni tribal leaders during this period and his father was a part of these. Subsequently, his father has been involved as and when they need him, for example, when the security is bad. The applicant said that his father participates in meetings because he was a prior member and has experience. The applicant’s father is claimed to have previously worked as [an Occupation 1] for the Pakistani Government at [location] and now runs his own private [Occupation 1] practice. The applicant claimed that after the main conflict between 2007 and 2009 Sunni and Shia elders came to discuss peace along with government representatives in a jirga where they undertook negotiations and arranged for a ceasefire. He claims that this involvement by his father places the applicant and their family at a greater risk. The applicant said that when he was young and still living in his village, he would go to the village’s Imamia Students Organization (ISO), a Shia Muslim students’ group, where they would help organise Muharram activities and other similar actions. Subsequently after he moved to [Town 1] where he started college, he joined the ISO there. Between 2012-2014 the applicant held the role of [Position 1] of a branch of the ISO which was a [high-level position]. He claimed that within his ISO unit there were 40-50 Shia student who had some degree of responsibilities with Shia students from other colleges.
Decision
Reasons for decision
Furthermore, after we discussed there being millions who move around Pakistan every year, he acknowledged that not everyone moved with the assistance of family networks. I noted to the applicant that country information states that Kohat is a centre for the Bangash tribe and that while he has no one from his immediate family he could receive what support he may require through the tribe including finding accommodation.[13] He responded that the support he can receive is limited to Parachinar. He added that if it became known in Kohat that he is his father’s son then he will be killed. I put to him that not all Sunnis are extremists who want to kill him. He said that you never know who is out there. He said that there are Sunni Bangash tribesman and therefore they are his enemy. I do not accept this. Firstly, earlier in the hearing, as recorded above, the applicant said that he didn’t experience a Sunni-Shia divide within the Bangash tribe. Furthermore, although there are Sunnis and Shia in Kohat the limited number of incidents indicates that there are not the feuds between Shia and Sunni that he claims to fear. [13] Program for Culture and Conflict Studies: Bangash Tribe, The Program for Culture & Conflict Studies Naval Postgraduate School, Monterey, CA >I put to him that I read through the recent news stories emanating from Kohat and that there was nothing of note and there was no reporting of any killings or feuds. The applicant said that during Muharram there is an area called Hangu where some people fired on the Shia procession. No information was provided to support this claim, but country information was found showing that a procession in 2006 was attacked leading to 26 people being killed. I accept that as fact. While there was such an incident, that it was nearly twenty years ago and information discussed above about the security situation shows over a more recent and relevant period that the security situation is safe, leads me to place very little weight on this information in relation to the matters I must consider.I acknowledge the country information which indicates that relocation in Pakistan is challenging without networks but that the applicant is tribally affiliated with the Bangash and that his father is senior enough to sit on a jirga leads me to conclude that the applicant can access considerable support through the tribal networks and as such would have access to settlement support such as introductions for accommodation, friendships and networks. I note that he has lived in Australia on his own having travelled here on his own. While the transition to Australia is facilitated by a multicultural social structure that welcomes migrants, I note that the skills he has developed would only be beneficial.100. I noted that Kohat district has a large Shia population including in the following towns: Chikarkot Bala, Sherkot, and Usterzai Payan, the latter of which has the largest Shia population and is home to a Shia run college and a large Shia Bangash population.[14] As such the applicant would be able to continue to practice his faith. He acknowledged this and added that there are a lot of Shia in Pakistan, but he claims that he would be targeted because he is a Kurram Shia and due to his family. No independent evidence was provided to support the claim that Kurram Shia are targeted specifically and separately to Shia in general, quite on the contrary, the information discussed with the applicant related to Shia being targeted because of their faith, a faith that is not distinguished across districts. I place minimal weight on this claim as the applicant has acknowledged that tribal affiliation is what ties communities together and distinguishes them across administrative boundaries which I accept. 101. We discussed whether there would be a need for the applicant to travel to Parachinar for any reason such as renewing his identity documents. I noted that this is now possible online. He acknowledged that is the case. 102. At the hearing the applicant raised as another reason why it would be unreasonable for him to relocate as being that he has lived in Australia for 9 years. I asked how his life would be distinguished from other local people, to which he responded that it would be his way of life, but when probed noting that he goes to the mosque and participates in community groups associated with Parachinar and Pakistan, what that meant he couldn’t explain it. He responded that it was the way you treat people and the way you live and that he left Pakistan when he was at an early age and learned everything in Australia. 103. While I have considered this earlier from a risk perspective, I now turn my mind to consider it from a reasonableness perspective in that the norms the Taliban would seek to introduce would make life difficult for the applicant. But I note that the Taliban are not in power nor is there evidence that their presence is felt in Kohat. There is little evidence to suggest that the Taliban have an interest or ability to influence outcomes in Kohat based upon the limited level of violence and nothing among the country information that was submitted suggesting as such. For this reason, I place no weight on the applicant’s claims that due to having come from the West and associating it with the Taliban’s displeasure of the West would it pose a burden to the applicant. With regards to the more general issue of the applicant’s claims of acculturation in Australia and that he learned how to live in Australia, I place some weight on this recognising that he hasn’t spent much of his adult life in Pakistan and as such relocation to a different part of Pakistan may pose some challenges. But I note that he has support networks as discussed above and he has established and maintained some degree of cultural connection while in Australia. 104. When considering the entirety of the applicant’s circumstances and considering whether it is reasonable for the applicant to relocate to Kohat, I find that it is. The applicant has access to support networks, he acknowledges that he can find work, he speaks the language and there is no basis upon which to believe that he would viewed suspiciously or treated differently, there are minimal cultural differences to present any challenges, and the area is safe. 105. As such under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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.[14] ‘Kohat’ 30 April 2010 For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION109. The Tribunal affirms the decision not to grant the applicant a protection visa.Denis DragovicDeputy PresidentAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…