2315386 (Refugee)

[2024] AATA 2596

2315386 (Refugee) [2024] AATA 2596 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Noosheen Mogadam

CASE NUMBER:  2315386

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:27 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2024 at 4:12pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – ethnicity and religion – tribal Shia Muslim – no personal claims other than as Shia – country information – claim of fear of harm in home area accepted – reasonableness of relocation to regional city where brother and tribe members live – possibility of discriminatory treatment – physical and mental health – availability, access to and quality of treatment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(c), 5J(2), (3), (4)(a), (c), 36(2)(a), (aa), (2A), (2B)(a), 65, 91R
Migration Regulations 1994 (Cth), Schedule 2

CASES
FCS17 v MHA (2020) 276 FCR 644
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 dependants.

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 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Pakistan. He applied for the visa on 18 December 2012 and the delegate refused to grant the visa on 16 June 2014 for reasons arising from a finding that although he had a well-founded fear of persecution, the applicant could relocate away from his home area.

3. The applicant’s matter was considered in July 2016 by a differently constituted member who did not consider relocation as the member found that the applicant would not face a real chance of serious harm or a real risk of significant harm upon return to Parachinar, Pakistan. But that decision was quashed for the following reasons:

   In reaching its finding that the appellant did not face a real chance of suffering serious harm on return to Kurram Agency the Tribunal overlooked the claim raised by the relevant material, and failed to consider and evaluate it. It made the relevant finding without having a proper awareness and understanding of the purport of the relevant claim and its possible significance, and therefore without a proper appreciation of the matters that might bear upon its finding on the way to its conclusion. There was a realistic possibility that the Tribunal’s decision could have been different had it understood and accepted the appellant’s claim that he faced a real chance of suffering serious harm on return to Kurram Agency because LeJ had perpetrated a major attack only a month earlier, had specifically threatened further attacks in that area unless Pakistani Shias stopped fighting in Syria and they had not, and that LeJ might strike in Kurram Agency again as it had threatened.

4. The matter is before the Tribunal because of a Court order dated 25 August 2023.

5. The applicant appeared before the Tribunal on 7 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

6. The applicant was represented in relation to the review.

   RELEVANT LAW

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

21. 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.

    Issue of interpretation

22. At the outset of the hearing the applicant raised a concern over the interpreter’s suitability based on the dialect the applicant speaks. I asked the interpreter to speak to his qualifications and knowledge of Pakistani dialects to which the response satisfied me that he was a suitable interpreter.

23. The decision was made to proceed, with the understanding that both the applicant and interpreter would raise any concerns that may become apparent to them. Throughout the hearing the communication was fluid. No apparent issues arose.

24. While this could be because of a lack of awareness of any differences in meaning, this would have become apparent by way of a lack of cogency and consistency of the interpreted answers through the hearing and across the various submissions and past material.

25. I also note that the interpreter at times sought clarification on certain statements by the applicant, which is indicative of an interpreter being aware of the possibility of nuanced differences in dialect.

26. As no issues arose through the hearing I was satisfied with the quality of interpretation.

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The applicant is a [Age]-year-old Shia male from [Village], Kurram District, Pakistan. He is a member of the [Tribe]. [Village] is a small village [distance] away from Parachinar town, the capital of Kurram District. He is married and has one [child]. Both his wife and [child] live in Parachinar.

29. The applicant explained in his original statutory declaration dated December 2012 that the problems for him began in 2007 when the Taliban requested the right to pass through what was then Kurram Agency (subsequently it became a district) and the elders refused. This led to sectarian conflict between the Sunnis, who backed the Taliban, and the Shia. The applicant described the beginning of the violence and that it was not only sectarian violence between local groups, but the Taliban became involved. He described how it continued for a few years. He did not claim that he was harmed through this period but in 2012 a bomb blast in front of his shop triggered the decision to flee Pakistan.

30. I accept that the applicant is a Shia Muslim from Parachinar. The applicant has not claimed that he faces any personal vendettas other than those that may arise from his Shia profile.

31. As such I reviewed with the applicant at the hearing country information about the current situation for Shia in Parachinar and its surrounding villages. In particular, I note that the South Asia Terrorism Portal records 5 security incidents and 8 civilian deaths in 2024 to date, 27 civilian deaths in 2023 from 11 incidents and zero civilian deaths in 2022.

32. In examining the nature of these incidents, they are largely sectarian and targeted. They include both Sunni and Shia indicating an ongoing low intensity conflict between the groups.

33. These statistics don’t include deaths from ongoing conflicts over land which are not categorised as sectarian, or terrorist related but nevertheless relevant. The most recent clashes reported online were from July 2023:

    Confrontations erupted on 7July between Sunni and Shia tribes in the Parachinar area of Khyber Pakhtunkhwa, Pakistan, over disputed land. At least 13 people were killed and 90 injured in the following days.[1]

    [1] >

    I also noted that the Pakistan Human Rights Commission commented unfavourably about the ability of journalists reporting from Parachinar.[2] While this doesn’t limit news of violence being reported through Facebook groups such as Parachinar Press[3] it does lessen the likelihood of all relevant incidents of violence being reported.

    [2] >

    One news report notes that four people were killed and three wounded after their vehicle was shot at, an incident recorded in the South Asia Terrorism Portal, but of note the report states that it was the fifth such attack in less than two weeks. None of the earlier attacks are mentioned in the SATP portal for the most likely reason that it didn’t lead to injury or death but nevertheless is relevant to my considerations.[4]

    [4] >

    Also quoted, an elder who states, ‘On Sunday, a lady doctor was also among those killed by the terrorists and there is a list of professionals and students either killed on the spot or kidnapped and later killed.’[5] These incidents aren’t recorded in the SATP database. It could be that the elder was mistaken or possibly that SATP didn’t find credible reporting of it. The relevant point is that under these unique circumstances data should be used with care.

    [5] ibid

34. The aforementioned South Asia expert noted in the same article the ongoing conflict in Parachinar is perceived as being both land based and sectarian:

    The District Police Officer says the conflict is related to land disputes rather than sectarian issues. The government also says they are working on a land commission to adjudicate the land disputes, which will bring enduring peace in the area. “Several reports have been received that some miscreants are giving it the colour of a sectarian clash and propagating false news on social media,” the Home Department said, adding that strict monitoring of social media is in place and such acts “will be dealt severely.” However, local residents say the issue is purely sectarian and terming it as a land dispute will do nothing to resolve the matter.

35. The conclusion from the limited reports available to the Tribunal and the data is that the situation in Parachinar and its surrounds has escalated in recent years. While the sectarian tensions over land are a historical feature of the area, extremist groups have capitalised on the disputes to foment further tensions and are directly involved in some. Due to the multifaceted nature of the conflict and its volatility, I find that the applicant, as a Shia, faces a real chance of serious harm for reasons of his religion.

36. I find that his religion is the essential and significant reason for the harm (s 5J(4)(a)).

37. In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I find that it is, for reasons of the nature of the conflict being sectarian and how it is being used by the Taliban, a Sunni Islamist group that identifies Shia as apostates, makes the harm he faces discriminatory and as it is persistent and not ad hoc, it is also systematic.

38. The applicant cannot seek protection from the state as the area of Parachinar has been experiencing this low-level conflict for many years and despite numerous attempts at conflict mediation including by the state[6], the authorities have been unable to suppress the violence. (5J(2)).

    [6] >

    I also find that the applicant cannot modify his behaviour as it is his characteristic, fundamental to his of being a Shia, that will lead him to face serious harm (s 5J(3)).

39. As such I now turn my mind to consider whether the applicant can relocate to another area of Pakistan.

    Relocation

40. The representative in her pre-hearing submission referenced several AAT decisions relating to relocation. These decisions were reviewed prior to the finalisation of this decision. It is relevant to note that there is no obligation upon this Tribunal to follow any apparent precedent. It is also relevant to note that there is no obligation to distinguish those decisions from the applicant’s circumstances. It should be self-evident that each case is unique and should be judged on its merits.

41. I engaged with the applicant about the possibility of relocating to Peshawar where he has a brother who lives there with his family.

42. We first discussed the security situation so as to determine whether in Peshawar the applicant faces less than a real chance of serious harm and less than a real risk of significant harm. I put to the applicant that the overall number of sectarian and/or terrorist attacks against civilians in Peshawar was very limited amongst a population of 2 million.[7]

    2021: 8 civilians died.

    2022: 1 suicide incident in Shia mosque, 63 civilian deaths and two other incidents (two Sikhs killed and one Christian pastor killed),

    2023: All of the attacks against civilians report in this year are by Islamic State – Khorosan (ISIK): a government cleric of the Baelvi sect and his bodyguard; a mufti of the Sufi sect; two Sikhs; the director of the Public Service Commission; a Christian; and an imam.

    2024: A senior planning officer of the social welfare department was killed

    [7] >

    I note that in addition to the above the applicant noted an attack on a mosque which is the 2023 suicide attack targeting a police compound killing police who were worshiping[8] and as such is not directly indicative of the harm someone of the applicant’s profile would face but is relevant indirectly as it is informative of the general security situation that allowed a suicide bomber to enter the city.

    [8] type="1">

    The representative made submissions that Peshawar, being in the province of Khyber Pakhtunkhwa, should be considered insecure because the majority of terrorist attacks in Pakistan are concentrated in this province. But it is important to engage with the nuances of the security situation when the evidence allows for it. The evidence available to this Tribunal is indicative of the insecurity being in the locations along the Afghan border.[9] This was discussed with the applicant noting that the alternative places for relocation were away from the border.

    [9] then further broken down by district

    I put to the applicant that the profile of civilians targeted over the past three and a half years appear to be cohorts other than general Shia or Shia from the [Tribe] (as per the above information at [46]). I put to him that for a city of 2 million[10] it seems that there is a level of safety for someone of his profile.

    [10] >

    The applicant said that it is not safe for him as he comes from Parachinar and that he participates in religious events such as Muharram including performing self-flagellation.

    I put to him that Peshawar has many Shia[11] who practice in Shia mosques along with people from Parachinar, such as his brother, and asked why he would be targeted. He said that many of the people from Parachinar town have moved to Peshawar and have been influenced by extremist Islamist scholars inferring that there are many who seek to harm Shia. He named a single mullah who preaches and lives in Peshawar as an example. I asked why they would target him as opposed to any other Shia. He said that their shops were where his shop was in Parachinar and as such, he would be known to them whereas other Shia may not be known. He claims that they want to kill him. His basis of belief is simply that they were told to kill Shia by particular mullahs.

    [11] >

    I note that he was never targeted as an individual but for reasons of being part of a larger group, namely Shia. His brother, who is also from Parachinar has not experienced any harm. I also note that despite the applicant’s claims of Sunni shopkeepers wanting to kill Shias from Parachinar there is no independent evidence before this Tribunal of such attacks occurring.

    I asked about the applicant’s brother and the risks to his life. The applicant said that where his brother lives there is a Shia mosque and it came under attack by Sunnis in 2022. He did not provide any examples of harm that has befallen his brother. His brother has been living in Peshawar for about 15-20 years.

    He said that those Shia who came and settled after 2007 are not liked. He claimed that those who came after are recognised and targeted, he gave one example of someone from his tribe coming from their area who was tortured and killed.

    He said that Parachinar Sunni are in touch with Sunni in other areas and they seek to have Shia from Parachinar discriminated against.

    It is possible that Parachinar Sunnis would encourage discriminatory treatment against Parachinar Shia. But whether this would actually lead to some distinction in actions is doubtful. This would require that the Sunnis in Peshawar would in their interactions with Shia distinguish Shia in general from across Pakistan from those Shia from Parachinar and treat the latter worse. I find this implausible as the basis of sectarianism is their faith and not the geographic locality from which believers come from. Furthermore, there is no independent evidence before the Tribunal that supports this claim.

    He said that the Taliban are active in Peshawar, which I accept, but their presence in of itself is not a strong indicator of risk as opposed to the actions that they or any other terrorist group (including Lashkar-e-Jhangvi) may take, which is represented by the actual number of incidents through terrorism or sectarianism in Peshawar.

    Regarding which group of terrorist that the applicant fears noting that this was the basis for the previous Tribunal decision being quashed, we discussed that the data encapsulates all terrorist attacks and does not distinguish between different terrorist groups and as such relying on the data in Peshawar suffices for the purposes of considering whether he faces a real chance or a real risk of respectively serious or significant harm, regardless of who the persecutor is and to which jihadist group they are aligned.

    The representative raised blasphemy laws as a concern in her submission. I asked the applicant if he had anything to comment on those laws noting that he hadn’t raised the issue himself. The applicant said that he couldn’t add anything to the evidence he had already given.

    The representative described the submission as indicating that the targeting of Shia is state sanctioned and that this provided context to the fears of the applicant. She added that it is representative of the state creating division within the community.

    When considering the situation overall, I note that the number of terrorist or sectarian security incidents in a city of more than 2 million people is very limited albeit two suicide bombing attacks that occurred two and three years ago had a large number of casualties. I note that the applicant’s brother has not encountered any harm and while I acknowledge that there are instances of some harm befalling some people of a similar profile to that of the applicant this does not necessarily mean that the reasons for the harm they encountered was because of the characteristics that the applicant shares with them.

    So, for example, when the applicant said that he knew of someone who had migrated to Peshawar and was tortured and killed, this could have occurred for many reasons and not necessarily because they had migrated there. Without supporting evidence and the justification for such attacks not seeming plausible based on the general information available to the Tribunal regarding the situation in Peshawar, I find that while there may be some discrimination there is no evidence that supports the view that people moving to Peshawar are tortured and killed. It is relevant to note that the issue isn’t an absence of information, there is evidence that certain minorities are being targeted, including Sikhs and Christians, and as such it would be reasonable to presume that there would be evidence of other types of targeted campaigns if they were occurring.

    The applicant also noted that people with mental health issues face differential treatment from the community including being made fun of and laughed at. I asked how anyone would know that he has mental health issues noting the specific diagnosis that he has received (see below for further details regarding his mental health). He said that in Australia his situation has stabilised but were he to return it could deteriorate.

    Noting the nature of his diagnosis, I find that the applicant would not be distinguished as, say someone with schizophrenia, epilepsy or learning difficulties, which I accept would garner the types of response the applicant suggested.

    While I accept that there are risks the applicant faces including being ‘in the wrong place at the wrong time’ or someone sometime in the future choosing to claim that the applicant had committed blasphemy as leverage for personal gain, the basis of such possibilities is mere speculation and certainly amounts to less than a real chance and less than a real risk.

    The representative also noted that the blasphemy laws are indicative of state sponsored discrimination. I agree that the blasphemy laws are being applied discriminatorily and that the state preferences Sunni Islam above Shia Islam. But no information was presented nor was it claimed that the applicant fears harm from the state. Nor is there a basis to establish that the applicant’s profile is such that the state would seek to harm him—for example were he a Shia imam or an advocate of Shia Islam.

    The circumstance of returnees from Western countries was discussed in the context of crime. I put to him that it would not be unusual for a Pakistani national like him to return to Pakistan as there is a large Pakistan diaspora.[12] He said that it can be dangerous. He said that one of his relatives who lives in [Country] had his father kidnapped and they demanded money. I noted that his situation is different as he would be returning to live there, and it would be evident that he does not have a lot of money nor that he could earn a lot. He said that it would be difficult to settle in Pakistan without money.

    [12] An example being the number of Pakistani nationals living in Europe numbering nearly a million. >

    I put to him that from the crime statistics I have looked at, kidnapping is not a common occurrence relative to the size of the population in Khyber Pakhtunkhwa[13] and as such it would be very unlikely to occur to him. He said that it is common practice, especially for people coming from overseas. He said that they misunderstand your true situation. But I note that the applicant would be returning initially to live with his brother and seek work at some point into the future. There would not be any reason for the applicant to be perceived to be wealthy or that he had somehow benefited financially from his time abroad. The applicant’s risk of being kidnapped would be very low such that it would be fanciful.

    [13] UK Home Office, ‘Country Policy and Information Note Pakistan: Actors of protection’ 2023, Version 3.0 at [6.5]

    I have considered all of the above claims and how they interact and in turn potentially cumulatively increase the applicant’s risk profile or the level of harm he faces. For example, I note that the applicant’s profile among the Taliban would increase for reasons of not only being identified as Shia but being from the [Tribe]. That the applicant would be a migrant to Peshawar would add to the level of risk he faces from the Taliban as he would be more easily identified. Some among the informants for the Taliban would be those who knew of him from before. But ultimately, even as a Shia man of the [Tribe] who is from Parachinar and recently returned from the West and were his presence known to the Taliban, it would still require the Taliban (or other jihadist groups) to dedicate resources to pursue the applicant. Noting that the applicant has no other profile than those inherent to him, in other words he has no active political voice or is involved with the army, I find that a jihadist group would not dedicate the resources to seek him out and harm him.

    Considering the overall situation facing the applicant in Peshawar including the security environment he would be entering into, his personal risks as a Shia from Parachinar of the [Tribe] with a past as accepted above, having recently returned from the West, the harm he faces arising from his mental health, the fear of being accused of blasphemy and the discrimination he would face for being a recent migrant to Peshawar, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future were he to relocate to Peshawar.

    Under s 5J(1)(c), 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].

    Engaging with the above and considering that Peshawar has a population of over 2 million people and noting that there have been no reports available to the Tribunal that suggest that those residents lack safe access or face inability to access safe human habitation, I find that it is habitable and accessible to the applicant.

    For this reason, I find that the applicant does not have a well-founded fear of persecution.

    Having found that the applicant has not met the threshold for protection under s 36(2)(a), I now turn my mind to complementary protection. 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 Tribunal draws 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.

    For the same reasons given above when considering relocation to Peshawar I find that the applicant does not face a real risk of significant harm in Peshawar.

    I now turn my mind to consider the other limb of this threshold question, namely whether it would be reasonable for the applicant to relocate to Peshawar.

    The applicant faces mental health challenges. He wrote in his statement prior to the hearing:

    I am also suffering because of my mental health and physical health, which makes things doubly difficult for me in many different ways. I would need to continue the treatment that I currently have now for my physical and mental health. I do not believe I could access such treatment.

    The applicant has in the past seen a counsellor and is most recently seeing a psychiatrist. He is on medication. He believes that he would not be able to access the same level of care in Pakistan as he is receiving in Australia.

    A report was received written by [Dr A] dated 8 June 2024. The report stated that the applicant has significant symptoms of depression, anxiety, and PTSD. The author notes that the applicant ‘remains depressed, anxious and lacking optimism or hope about his future and worrying continuously about his family.’ His symptoms include sleep disturbances, PTSD nightmares and related worries about his safety. Treatment to date has been ‘partially successful’. The applicant remains ‘irregularly compliant with medication’. The author finds that if required to return to Pakistan his symptoms are ‘highly likely to deteriorate further’.

    How will his mental health impact on the applicant’s ability to relocate? I requested the representative who was present at the hearing and had asked the Tribunal for additional time to present an updated psychologist’s report to convey to the psychologists the following questions:

    a.Recognising the difficulties in separating out the sources of someone’s mental health challenges, to what degree is the applicant’s current mental health situation driven by the uncertain circumstances, namely being away from community and culture and family; and

    b.Whether if he were to move to a place that the member identifies as safe, and being within his culture, would it work towards minimising the challenges he faces.

    These questions, regrettably, were not directly addressed in the report.

    I noted at the hearing that the lower relative quality of medical support in Pakistan raised by the representative in submissions is only relevant when considering relocation in so far as it would make the applicant vulnerable and as such increase the challenges to relocation that he would face. The representative referenced the lack of medical support in rural areas and the overall lack of mental health services. I note, though, that Peshawar is a major city, the capital of a province, and not a rural area. As such the applicant would have access to the same medical health services as other residents of a major city.

    We discussed employment opportunities that may be available to the applicant. He said that his brother faced challenges as people would not give him a job or rent a shop. I noted that there are a lot of Shia in Peshawar, and many would have a business. I asked how they could operate. The applicant reverted to the assertion that those who came since 2007 are targeted.

    Regarding his brother helping him temporarily until such time as he was able to establish himself, he said that he cannot be a burden on his brother as he has his own problems. I put to him that in Pashtun culture it is expected that family would support each other and that it would not be seen as a burden.[14] He said that this is right, but such hospitality is only for a few days, not long term. I put to him that it’s not what I have read and that it is an obligation that would last including, for example, until he could get back on his feet.[15] He said that to stand on his own feet he needs to go out and find work, go places, ask for employment, show ID but he believes that even were he to do so he wouldn’t be trusted.

    [14] SBS, Pakistani Culture, >

    The applicant acknowledged that the residents of Peshawar speak the same language. He said that his accent and dialect are different, but he can understand them and that he can be understood. He added that he can be recognised because of these differences as well his name which is specifically known to be a Shia name. I accept that he would be known and readily identified as Shia. I also accept that he speaks the same language and that his accent would be understood.  

    From a health perspective I asked if he could work. He mentioned that he has Hepatitis B and diabetes. He said that he has mental health problems. I noted that hepatitis B[16], diabetes[17], and mental health challenges are widespread[18] in Pakistan and that if people with those conditions can subsist, I asked why he couldn’t. He said that he comes from Parachinar and Sunnis can recognise him.

    [16] World Health Organisation, ‘Pakistan tackles high rates of hepatitis from many angles’ Azeem S, Khan U, Liaquat A. The increasing rate of diabetes in Pakistan: A silent killer. Ann Med Surg (Lond). 2022 Jun 3;79

    [18] Alvi MH, Ashraf T, Kiran T, et al. Economic burden of mental illness in Pakistan: an estimation for the year 2020 from existing evidence. BJPsych International. 2023;20(3):54-56.

    I asked about whether due to his mental health others would treat him discriminatorily. He said that people with mental health issues are made fun of, they are laughed at, and that they feel discriminated. I asked how anyone would know about his mental health noting the symptoms that are recorded by the psychologist in the letter provided to the Tribunal.

    As noted above, he said that in Australia he feels his mental health has stabilised, but he fears that his mental state would worsen there and that he doesn’t know what would happen, even to the point that he may harm himself or wonder onto the street without knowing what he is doing. There is no evidence that would support a view that the applicant’s mental health symptoms were they to worsen would lead to the applicant wandering oblivious to his surroundings, as such I do not accept this assertion.

    With regards to the possibility of self-harm, I accept that it is possible that the applicant would consider taking such drastic action. It would be speculative based on the medical assessments provided to the Tribunal as the applicant has had suicidal ideation sometime in the past and at no stage did the ideation transition into action. Noting the psychologist’s view that the applicant’s symptoms would worsen but also acknowledging that the applicant has protective factors that may mitigate this (as discussed further below), I find that when considering the reasonableness of relocation suicidal ideation will become a factor.   

1. We discussed the presence of people from his [Tribe] in Peshawar. He acknowledged that there would be some there, but he said that he can’t get support from them because they are mostly Sunni. I put to him that mostly means that some are Shia. He said that he doesn’t know them. Country information supports the view that some are Shia.[19]

   [19] >

   I put to him that knowing individuals isn’t how a tribe works, but instead that you are a part of a group that will look after people in the same group regardless of whether you are personally known.[20] He said that things have changed, nowadays brothers don’t care about brothers let alone tribal people. This claim is contradictory to the information referenced and as such I do not accept it.

   [20] Arab Naz, Waseem Khan, Hafeez-ur-Rehman, Umar Daraz, and Mohammad Hussain, ‘The relational analyses of Pakhtun social organization (Pakhtunwali) and women’s Islamic rights relegation in Malakand division, KPK Pakistan,’ International Journal of Sociology and Anthropology Vol. 4(3), pp. 63-73, March 2012 (specific references to hospitality)

2. We discussed the possible reasons for the applicant needing to return to Parachinar. He said that he would have to as he has land there and a house and his relatives live there and as such, he said that there will be times that he would travel there. While I accept that the applicant has relatives there, there is no reason that he could not engage with them in the same way he would were he living in Australia, that is by meeting outside of Parachinar or communicating by telephone or video. With regards to his land, he can continue to deal with it as he has since he came to Australia.

3. I gave the example of the applicant having to return to renew his identity card but noted that in that instance it could all be done online.[21] No other reason for travel to Parachinar were identified by the applicant. I find that the applicant has no reason to return to Parachinar noting that his wife and son can travel with other family members or on their own to Peshawar when they eventually choose to move.

   [21] >

   With regards to such a move, at some stage they join the applicant in Peshawar if the applicant relocates there. In so far as considering how his wife and son would impact the reasonableness of the applicant’s move to Peshawar it is relevant to note that his brother has a family in Peshawar. It is a large city which means that it has amenities and facilities at least of the standard of Parachinar. The applicant did not raise an imperative for his wife and child to move immediately. As such when considering the reasonableness and noting that the move is to a larger city with no imperative to initiate the move immediately, I find that his family do not inhibit the reasonableness of the applicant’ moving to Peshawar.

4. We also discussed the crime situation in terms of kidnapping. As noted above, the incidence of kidnapping is so low that it would be fanciful that the applicant would be kidnapped especially noting that there would be no reason to suspect that he had access to wealth considering the nature of the lifestyle he would lead.

5. When considering the reasonableness of the applicant’s move to Peshawar overall, I place front and centre the applicant’s mental health and the challenges that this may pose to him and how it may impact the reasonableness of relocation. I accept that due to his mental health struggles he would face an added challenge in establishing himself, but this must be considered alongside the supports he would have in place.

6. The applicant has a brother living in Peshawar who is well established in the community, employed, and has a home. When the applicant says that it would be difficult to relocate without money, the challenge is mitigated by the presence of his brother who has established himself in Peshawar. A fact not apparently grappled with by the psychologists who assessed the applicant and made their findings about the impact of return to Pakistan. Nor is the fact that he is a member of a tribe that has a presence in Peshawar and a member of the Shia community that is present in Peshawar. These are all protective factors that would lend support to the applicant in his transition to establishing a life in Peshawar both in terms of his mental health but also in establishing himself in Peshawar by way of finding work, separate accommodation and overall making the move reasonable.

7. The city of Peshawar is a large city and as such has health facilities to cater to his needs including his diabetes, Hepatitis and mental health noting that these ailments are common in Pakistan. While the services he can expect to find in Peshawar will not be of the same level as those in Australia, they are of the same standard as is being accessed by other residents.

8. For these reasons I find that it is reasonable for the applicant to relocate to Peshawar. As such the applicant does not meet the criterion in s 36(2)(aa).

   CONCLUSION

9. 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

10. 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).

11. 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

102.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Denis Dragovic
Deputy President