2205837 (Refugee)

[2023] AATA 2626

2205837 (Refugee) [2023] AATA 2626 (23 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Claire Coffey (MARN: 1067518)

CASE NUMBER:  2205837

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:23 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 June 2023 at 12:00pm

CATCHWORDS
REFUFEE – protection visa – Pakistan – Federal Circuit and Family Court remittal – religion – Shia – race – Bangash tribe – imputed political opinion – Imamia Students Organization leader – kidnapping – fear of killing – fear of the Taliban – reasonableness of internal relocation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 91R
Migration Regulations 1994, Schedule 2

CASES
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 October 2015 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims, and I accept based upon a copy of his passport and his knowledge of Pakistan, to be a citizen of Pakistan.

3. He applied for the protection visa on 17 February 2015.

4. The delegate refused to grant the visa on the basis that while the applicant was found to face a real chance of serious harm were he to return to his home, the delegate found that it would be reasonable for the applicant to relocate to Rawalpindi and that it would be safe there.

5. The differently constituted Tribunal affirmed the delegate’s decision also finding that the applicant faced a well-founded fear of persecution, but similar to the delegate found that he could relocate.

6. That decision was remitted by consent before being heard by the Federal Circuit and Family Court because the earlier differently constituted Tribunal:

   fell into jurisdictional error by failing to consider the following matters in the applicant's written submissions dated [in] June 2017, in determining that it would be reasonable for him to relocate to Islamabad or Lahore in accordance with s 36(2B)(a) of the Migration Act 1958 (Cth): [case citation redacted]:

   i. The applicant had no family in any other area of Pakistan which would provide a support network to him;

   ii. The availability of support networks was important to have when relocating within Pakistan; and

   iii. The country information relied on by the applicant addressing the importance of traditional support mechanisms in the area of prospective relocation.

7. The matter is now before this Tribunal. The applicant appeared before the Tribunal on 16 May 2023 to give evidence and present arguments.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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.

16. For the following reasons, I have concluded that the decision under review should be affirmed.

    CONSIDERATION OF Claims and evidence

17. 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.

18. [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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.  

27. He claims that he was recognised among the student population as a Shia and whether for reasons of being Shia or a member of the ISO he would get into fights (without knives or guns) with Sunni students and that he received threatening phone calls. He claims that he was called names for being Shia.

28. The applicant claimed that he limited his movement while outside of the college because he feared for his safety. He said that he had heard of students being targeted in their hostel or flat where they lived and were killed. 

29. The applicant also described receiving threatening phone calls upon joining the ISO. The callers never identified themselves according to the applicant. He claimed that they referred to his religion, referring to him as an infidel, and wanting him to discontinue his role with the ISO or that he would be killed.

30. In February 2014, the applicant claimed to have been abducted and held for ransom by four unknown men. The applicant claimed that he was blindfolded, tied up and attacked by the men, who then forced him into a vehicle, drove him to an unknown location, and demanded money from the applicant’s father. He described being taken from a garden close to his hostel in [Town 1]. He explained that this occurred was on one of the few occasions when he left the college compound. He left alone and believes that he was known to the kidnappers as they knew his name and family. He believes that he was targeted and that they waited a long time for him to leave the compound. The applicant was released after his father paid some money.  

31. I put to him that it is possible that they were waiting for anyone but knew him and hence his name and details were mentioned. He responded that they were waiting for him. I put to him that country information states that kidnapping and extortion were at high levels then[1] and that if he was targeted for reasons other than extortion then why would they release him. He said that there are students richer than him and that extremists try to weaken you by draining money from families and using it against others.

    [1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ 29 November 2013 at [2.17]

32. Considering that the applicant admitted that his decision to leave the compound was a random decision and not planned, and yet there was a group that took him is strongly suggestive of an opportunistic kidnapping. The applicant’s response that they were waiting outside for him to emerge one day for what would have been an extended period of time as he indicated that he rarely went out alone, is simply implausible.

33. The applicant claims that after finishing his studies at college in mid-2014 he remained confined to his home for five months waiting until he could come to Australia on [in] December 2014. There is no claim that the applicant experienced any harm during this period.  

34. Regarding the current situation, he said that his family are fearful and stressed. He claims that his father received threats as has his brother who is an imam. Despite these threats neither have been targeted. The applicant believes that his father has not been targeted because he limits himself in his movements.

35. I noted that based upon his evidence he travels regularly to Parachinar. The applicant initially accepted that such travel within Kurram, moving through Shia areas, isn’t a problem but once in Parachinar and elsewhere it’s a risk. I put to him that his father is there regularly and yet hasn’t been harmed, to which the applicant said that they consider him very lucky.

36. In total, the applicant’s family living in Parachinar at the time of application comprised [specified family members] and his parents. Subsequently, [one sibling] moved to Australia to study in 2022. The applicant confirmed that none of his siblings living in Parachinar including [that sibling] while he was there have been harmed.

37. The applicant has a [brother] who lives in [Country 1] since about 2008 or 2009. He explained that because this brother had volunteered for [Organisation 2], a Shia organisation, he was nearly killed. The applicant claims that this brother’s past volunteering contributes to his profile as a prominent Shia. As this brother left about fourteen or fifteen years ago, during a time when the region was facing a high level of conflict, I find that his legacy of volunteering then only marginally contributes to any level of profile the applicant may hold and furthermore that it is only within the village that he is from and would be remembered.

38. The applicant’s brother, [Brother A], who is an imam and teaches Arabic in a school is claimed to be stressed as the school he teaches in is close to the Afghan border in an area of mainly Sunnis. It is also close to a school that was recently targeted and in which [number] teachers were killed. The applicant said that his brother, despite being a Shia imam, teaches from a curriculum that favours Sunni interpretations.

39. The applicant claimed that his brother’s profile is growing as he teaches in imambargahs, which are prayer halls for Shia Muslims, including in the main one in Parachinar as well as in large mosques throughout Kurram Agency. Two videos were provided which showed the brother speaking, both were described as being from villages around Parachinar.

40. One was uploaded to [Social media 1] in late April 2023 and is labelled [title]. It shows what is claimed to be the applicant’s brother leading a prayer and speaking in front of a group of about forty men in an imambargah. Although it was uploaded in April there is no indication of the date it was filmed, but I accept that it was relatively recently. The second video was uploaded to [Social media 2] showing the applicant’s brother speaking to a crowd of an unknown size. The video was uploaded five years ago and had 36 views at the time the Tribunal viewed it. 

41. The applicant claims that his brother is ‘very well known’. While I accept that the applicant’s brother is known to people in his community including in villages around Parachinar, there is no claim that he has spoken or preached beyond Kurram district. In addition, I note that there have been very limited number of views of his social media videos. Overall, I find that he has what would be described as a very small following. I find that he is only well known within a limited community surrounding his village and in the town of Parachinar.

42. I find that he is only well known within a limited community surrounding his village and in the town of Parachinar.

43. The applicant claims to have been involved in various Pakistan related events while living in Australia including some related to Parachinar. He has participated in a protest in [Australia] raising awareness of the inaction of the Pakistani authorities after the Parachinar bombing in 2017. He has also contributed to functions in localities in Melbourne and attended religious events as well as rallies in Melbourne. He is a member of two local Shia organisations.

44. The applicant shared information about a recent attack on Shia. On the 4 May 2023, according to the applicant and news reporting of the incident, seven teachers who were all Shia were gunned down in a government school in Kurram Agency.[2]

    [2] >

    In the most recent DFAT Pakistan report it includes information about the security situation in Kurram Agency and in particular around Parachinar:

    Turis have faced significant violence due to their sectarian affiliation, opposition to the Taliban and other Sunni militant groups, and territorial disputes with other Pashtun tribes. Groups such as the TTP have targeted Turis for their Shi’a faith (see Shi’a). From 2009 to 2014, militants frequently stopped and killed Turis travelling on roads in and around Kurram Agency. A series of terrorist bombings targeting Turis in Parachinar killed 120 people in 2017.

    The security situation has improved considerably in recent years, although local experts say the underlying triggers for conflict in Turi areas remain. DFAT is aware of at least two sectarian attacks in Turi areas in 2020: an IED blast in an imambargah (Shi’a place of worship) in the Shorko area of Lower Kurram in May, which killed one person; and a blast at Turi Bazaar in Parachinar in July, which killed one person and injured 14 others.

    …

    Turis in Kurram face a moderate risk of sectarian violence from militant groups because of their Shi’a faith.

    …

    DFAT assesses that Bangash living in tribal areas face a moderate risk of violence where they clash with other ethnic groups.

45. When considering the applicant’s circumstances, I first note that his narration of his past has been consistent across several iterations beginning with the statements accompanying his application and through to the subsequent interview and hearings. As such I accept the applicant’s narration of events as fact but not his interpretation of the meaning of them nor his projection of his level of risk which I now turn my mind to.

46. I note that DFAT country information referenced above notes an improved situation along with an assessment that the Bangash face a ‘moderate’ level of risk. But at page 6 of the DFAT report ‘moderate risk’ is defined to mean that ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour.’

47. A pattern of behaviour refers to something other than random events. It is relevant to the decision-making process as a well-founded fear of harm must involve ‘systematic and discriminatory’ conduct (as per s 91R(1)(c)) and under complementary protection there must be an actual, subjective intention to inflict harm. A moderate or high risk in DFAT parlance may be aligned with a real chance of serious harm, or it may not; the circumstances of each applicant will determine the case as will contextual country information.

48. Nevertheless, noting the proximity of the applicant’s village to the border with Afghanistan, the long history of cross border attacks in the Parachinar isthmus and the ease with which in the past Sunni extremists have infiltrated across the border and targeted Shia along with the relative well known profile of the applicant’s family in the immediate vicinity of the village, I find that the applicant faces a real chance of serious harm into the reasonably foreseeable future was he to return to his home in Pakistan.

    Relocation

1. As noted above, both the Minister’s delegate and the differently constituted Tribunal considered whether the applicant could relocate to another part of Pakistan. This is due to s 5J(1)(c) requiring that the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

2. Whereas the previous decision makers considered Rawalpindi, Islamabad or Lahore as a place where the applicant could relocate, I am turning my mind to whether the applicant can relocate to Kohat, a city situated about halfway between Parachinar and Islamabad. The first consideration is whether Kohat is an area where the applicant would not face a real chance of serious harm or a real risk of significant harm.

3. Prior to considering the applicant’s specific claims of harm and how they would translate to Kohat, I will engage with the general security situation in Kohat. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence can and did occur with virtual impunity. With greater security whether from an effective police or community-led actions, these events are constrained if not eliminated as would be actions are not only prevented before they occur but there is also a strong disincentive arising from a greater likelihood of arrest and imprisonment to someone breaking the law and taking matters into their own hands.

4. I noted to the applicant at the hearing that country information showed that the district of over one million people did not have any deaths from terrorist and conflict related activities in 2023, four in 2022, none in 2021, none in 2020, one in 2019 and none in both 2018 and 2017.[3] I put to him that this made it a very safe place. The applicant said that most incidents aren’t reported. He added that what if he is one of the four who died in 2022.

   [3] South Asia Terrorism Portal, Datasheet, Kohat.

5. A blog post was provided in post hearing submissions at [18] which referenced three incidents that involved Shia in 2020. This appears to be in contradiction to the reporting of the South Asia Terrorism Portal which lists no terrorist activity. But simply because a Shia is killed does not automatically equate to terrorism or sectarianism such that it would mean that the applicant is at risk of being targeted due to his faith. It could be that a person who is a Shia is killed for reasons of robbery, revenge, or other motives that happen to lead to a person of that faith dying just as people of other faiths are also victims of various crimes.

6. I am satisfied that the South Asia Terrorism Portal has vetted the reports and determined that those they exclude are excluded for reasons that they are not terrorism related.

7. I read to the applicant from the 2022 DFAT report that notes the reduction in attacks upon Shia is as ‘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.’[4] He said that the conflict starts and then settles then it comes out in a new version. He noted that there was a bomb blast in a Shia Mosque in Peshawar since then and that he knew someone who died in that incident. He said that the person he knew probably thought he was safe.

   [4] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ January 2022 at [3.60]

8. Substantial country information was provided at the prior differently constituted Tribunal. These submissions being from 2017 are noted but less weight is put on them as more relevant and recent information is available.

9. The applicant and his representative argued that there is an increasing presence of the Taliban in Kurram district arising from increased levels of activity in the border areas since the takeover of Afghanistan by the Taliban. Country information was provided to support this view.[5] But I note that Kohat is not a border area but lies halfway between the capital and Parachinar. The up-to-date incident figures do not reflect an increase in activity in Kohat and as such I do not accept that there will be, into the reasonably foreseeable future, an impact on Kohat of an increase in Taliban activity along the border regions.

   [5] Submission dated 10 May 2023 f.n. 28

10. An opinion by an expert indicating that there will be an increase in terrorist activity in places other than along the border, citing the recent attack upon a Karachi police station as an example, was provided by the representative.[6] While I accept that this is a view, the question that I must consider is how such views of an increase in attacks will undermine the security situation into which the applicant would return to. I note that the limited nature of the attacks relative to the size of the population strongly indicates that it is a remote chance that the applicant would be in the wrong place at the wrong time even taking into consideration his characteristics such as being Shia and praying in a Shia mosque which are targets of Sunni extremists. But I do acknowledge that such attacks contribute to undermining the overall security blanket as discussed at [49].

    [6] Submission dated 10 May 2023 f.n. 35

11. Similarly, references in submissions about the growing presence of other extremist groups in Pakistan including Islamic State of Khorasan Province or Labaik only reflect the general situation in the entire country rather than the specific circumstances in Kohat and as such carry limited weight.

12. Other references to security forces being anti-Shia are in dissimilar locations such as the reference to police beating up and arresting 22 Shia in Punjab[7] or their extra-judicial activities in Karachi[8] or in the applicant’s home area. While informative of the wider tensions in Pakistan, which could suggest a possibility of similar actions in the future in Kohat, ultimately, the evidence suggesting that it is not currently the case and hasn’t been for some years weighs in favour of a view that in Kohat the sectarian tensions are far less entrenched.

    [7] Submission dated 10 May 2023 at [68]

    [8] Submission dated 10 May 2023 f.n. 38

13. It was put to the Tribunal that the January 2023 attack in Peshawar in an area that would have been considered safe is evidence that no area is safe. This argument is limited in value. That there was an attack in one place does not then mean that all other places in Pakistan are unsafe, rather it means that in that instance a suicide bomber was able to breach the security cordon of a mosque in Peshawar. While it is relevant and weight can be placed on evidence of such an attack, and other similar attacks elsewhere, it nevertheless is only one factor, a relatively small factor, that needs to be taken into consideration when weighing the general security situation in Kohat.

14. I also acknowledge the argument put forward by the representative including references to the writing of Abdul Basit, namely that the Pakistan Taliban have increased their attacks in Pakistan since the Afghan Taliban’s takeover in Afghanistan. This is a similar argument put forward by Dr Khurram Iqbal in another article submitted by the representative. But I note that the withdrawal of US forces from Afghanistan was in February 2020, as such there have been three and a half years of data about how that event has impacted upon Kohat. As such while I accept the US withdrawal form Afghanistan has exposed parts of Pakistan to higher levels of risk, the data from Kohat does not indicate that it has had any impact.

15. Another expert opinion relied upon by the representative is included in paragraphs [13]-[14] of the post-hearing submission in which Dr Soherwardi warns of 2023 being a difficult year for Taliban attacks particular in the border regions but also others of which the list included Kohat. While I accept the qualifications of this expert it is difficult to dismiss the reality that as half of the year has passed there is no spike in incidents in Kohat.

16. I acknowledge the report from April 2023 describing the attacked upon a mosque that led to the death of two policemen, but I note that in the report provided to the Tribunal it references the attack as occurring at the mosque during Taraweeh prayers which are practiced by Sunni and not by Shia. As such it is indicative of a targeted attack upon a Sunni group. While this is still reason for concern and adds to questions of safety, it does not weigh as heavily in the considerations of sectarian violence and terrorism as it would were it a targeted attack against a Shia Mosque as the applicant is Shia.

17. In considering whether this fact should have been put to the applicant, I note that it is commonly known among Muslims that Taraweeh prayers are practiced by Sunnis and as a recognised scholar of Islam it was known to me. Just as it is commonly understood what Ramadan is or the Hajj and defining their meaning is not required to be put to an applicant, so too I determined that it was not required to put this commonly known fact to the applicant. In other words, it would be implied from the article and reference to Taraweeh that it was a Sunni Mosque.

18. In addition, that the police were targeted rather than worshippers suggests that there is an intent to target officials and not civilians.

19. Even accepting that not all incidents are reported, as was argued and referenced in a submission (noting, though, that Kohat is not one of the restricted access areas for journalists listed by the representative)[9], noting that some incidents of violence have occurred but there is limited evidence of it being sectarian based, and acknowledging the adverse impact of the increasing activity of the TTP, I find that the security situation in Kohat in 2023 and into the reasonably foreseeable future will continue as it was in 2022 and the prior years.

    [9] Submission dated 10 May 2023 at [50]-[51]

20. I now turn to the specific circumstances of the applicant, including but not limited to formerly being a member of the ISO and an office holder of a unit of the ISO; an identifiable Shia member of the Bangar tribe whose father was a member of a jirga and continues to contribute to the jirga; whose brother is an imam known in the localities of a separate district; both of whom, the father and brother, having received threats; and another brother, [named], who was targeted in an attack in 2008 or 2009 but left shortly after and whose past profile would only marginally contribute to the applicant’s profile and only so in the home villages.

21. The applicant claims that he can be easily identified and face harm for reasons arising from his:

    Pashtu race, Muslim Shia faith, tribal affiliation and area of origin in Pakistan. I can be easily identified as a Pashtu Shia from Kurram, given my identity documents, accent, and prayer rituals. Due to these reasons, I am considered an opponent of the Taliban and affiliated extremist groups. Given they harm anyone who does not support their ideology, I am at risk of harm from them.[10]

    [10] Statutory declaration dated 9 May 2023

22. In addition, he also believes that the Taliban hate Westerners and people who have lived in the West.

23. Regarding his Pashtu race, I noted, and it was not in dispute that Kohat is of the same ethnic composition and is overwhelmingly Pashun.

24. Regarding his Shia profile, I note that no evidence is available to the Tribunal to indicate that there is a sectarian tension in Kohat as opposed to the death of individuals who happen to be Shia. As noted at the hearing Kohat has a mixed Shia-Sunni population and yet there are very low levels of sectarian violence or terrorist activity which indicates that either there are low levels of tension, the authorities have for several years successfully maintained the peace or most probably a mix of both.

25. That the applicant’s family and specifically his [brothers] and father have a profile in the vicinity of their village and among leaders in another district may be cause for concern for them there, but the nature of their profile is not such that it would be known beyond those areas and certainly not that it would carry any level of risk to the applicant in Kohat district.

26. The applicant’s representative argued that since many Sunnis from Kurram district have relocated throughout Pakistan there would be people who would know him. I find that this is a valid but one that leads to little weight being place on the applicant’s circumstances for the following reason. The number of Sunni who knew him to begin with while in Kurram or during his college days would be limited, that there would be some who knew him or knew of him and then moved to other parts of Pakistan would be an even smaller number, that there would be some among those who have moved that moved specifically to Kohat, an even smaller number, and that of those who moved to Kohat there would be any that would cross paths with the applicant and recognise him as his father’s son and his brothers’ brother is cumulatively extremely unlikely.

27. That the applicant as a member of Shia organisations in Australia has advocated for Shia causes in Australia by participating in rallies or protests and supporting social and religious activities including specifically for the Shia of Parachinar, I find that these activities in Australia will not exacerbate his risk profile in Kohat district.

28. Assuming that the applicant will continue to participate in Shia events at the same level as he has over the past decade while in Australia, I find will add marginally to his profile for the reason of there being many Shia living in and around Kohat and he would not be distinguishing himself from others who are also involved in such activities. Noting that there is no indication that participation in such events has led to Shia being targeted in Kohat I find that there is some acceptance of Shia contributing to their community’s activities.

29. The applicant’s past profile of having been a [Position 1] of the ISO including having clashed with Sunni students and was kidnapped some ten years ago, I find to only marginally heighten the level of risk that he would face in Kohat. This is for several reasons including that his profile as a Shia student politician in college was limited to a cohort of other students. In addition, that approximately a decade has passed since the incidents (threatening calls and kidnapping) together with his tenure in the leadership roles would minimise the chance of someone remembering him. Lastly, when considering the nature of the circumstances that would lead to a dangerous reunion, it would begin through the random chance that someone who knew him then would cross paths with him in Kohat, and that person would have to have had an adverse opinion of him then or developed since an adverse opinion against Shia, and in addition be willing to act against him in some way despite the risks to them arising from taking illegal action in what is otherwise a safe location. That I have found it to be a safe location is relevant as it would have a discouraging impact to would be persecutors because the nature of safe locations is such that incidents are investigated, and perpetrators pursued.

30. With regards to the applicant having lived in the West, I noted at the hearing that over a million people in Western countries are of the Pakistan diaspora[11] and they come and go to Pakistan which would be a lot of people for them to target. He said that it is true and that this fear is just on top of the other main reasons.

    [11] ‘Pakistan: Migration Snapshot’, IOM, August 2019 p8

31. We discussed the issue of blasphemy and whether it may be used against him. I put to him that nothing I had heard through the hearing would indicate that he is at risk of being accused of blasphemy. The applicant said that he is at risk of being accused of blasphemy for the reasons of his profile including his family, the area he is from, his religion and that he has been a part of the ISO.

32. Firstly, in considering whether the applicant would have reason to express some view that would be a basis to make an accusation of blasphemy such as what a Shia imam may say or an activist, I note that he is neither and there is no aspect of his past that would suggest that he would say something that could be considered blasphemous including during his leadership role in the ISO.

33. When considering this same issue more generally, such that a blasphemy accusation may be made against him for reasons other than what he says or does, including for example for reasons of wanting to harm him over some property dispute or because of an animosity towards him arising from where he is from, or in relation to something his imam brother would say, I noted at the hearing that there are few incidents involving the use of blasphemy laws against Shia relative to the population of Shia in Pakistan, specifically 200 cases in 2020 across the entire country.[12] In other words, it is a rare tactic. While I acknowledge that there are some who are blameless victims arising from blasphemy being used as a threat or leverage to obtain property or inflict pain this is so unlikely that the chance of it occurring to the applicant, I find to be remote.

    [12] DFAT 2022 at [3.34]

34. The applicant believes accessing Kohat is problematic as it requires travel through Sunni areas. No independent evidence was provided in submissions to support a claim that such travel would be of risk. I acknowledge that the majority of Pakistan is Sunni and as such at some point either landing in the airport or travelling by road he would pass through majority Sunni areas. But as noted above not all Sunnis want to kill all Shia. That the applicant would be travelling through Sunni areas in a vehicle on his way to Kohat would further lesson any risk that he would be identified by a Sunni who was intent on harming a Shia. No evidence was provided to suggest, for example, that there are Sunni extremists who have established checkpoints along the road from the capital to Kohat such that his identity as a Shia would be known and in turn he would be put at risk.

35. In post hearing submissions it was claimed that he would have to travel through Khyber-Pakhtunkhwa and that this implied a risk existed. I disagree, Kohat is on the eastern fringes of Khyber-Pakhtunkhwa close to the border of Punjab. None of the country information available to the Tribunal is indicative of the area between Islamabad and Kohat having any security concerns for travellers.

36. When considered cumulatively and noting the overall security situation in Kohat is safe, which has repercussions including limiting the willingness and likelihood of extrajudicial or illegal harm, and that the applicant has a low level profile in Kohat among a community that includes people from his own ethnicity, tribe and faith, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future in all areas of the receiving country as per s 5J(1)(c).

37. As such I find that the applicant does not have a well-founded fear of persecution in Pakistan as there is not a real chance that if returned to Pakistan, the applicant would be persecuted now and into the reasonably foreseeable future for one or more of the reasons in s.5J(1) of the Act either when looked at individually or cumulatively in Kohat, and so the real chance of persecution does not relate to all areas of Pakistan.

    Reasonableness of relocation

1. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).

2. As such, having found that the applicant does not face a real chance of serious harm in Kohat, I also find that the applicant does not face a real risk of significant harm in Kohat.

3. But when considering relocation under complementary protection, the test has an additional element. 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. The difference being that under complementary protection there is a ‘reasonableness’ test.

4. I draw guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

5. I note that the applicant does not have any children and is not married.

6. With regards to whether it would be unreasonable for the applicant to relocate to a place which I have deemed safe including that it would be safe for the applicant to to access that place, I find that it would not be.

7. I note that applicant speaks the same language as is spoken as in Kohat and that some of the people are of the same race in the sense that they are Pashtun and of the same tribe, the Bangash.

8. I put to the applicant that the population of the entire district is about one million and as such there is enough social and economic activity to sustain people without needing to travel outside. The applicant acknowledged that he could find work there noting that his English is a positive.

9. The representative submitted that the authorities would treat him with suspicion in part, for example, by his identity card listing him as being from Kurram District. There is no evidence to support this claim and it was not raised by the applicant as a matter of concern, but nevertheless I note that as was discussed at the hearing millions of Pakistanis migrate within Pakistan and as such, he would simply be another migrant among many. That he acknowledged he would be able to find work and can obtain a new identity card online is suggestive that there are no impediments. That it is a location where the Bangash tribe extends into and there are many Shias also, suggests that there is no basis upon which to believe that the authorities would treat him with suspicion or that he would face discrimination.

10. 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.

11. 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.

12. 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).

1. 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).

2. 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).

   DECISION

109.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Denis Dragovic
Deputy President

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…