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1928875 (Refugee) [2024] AATA 2469 (1 May 2024)

Last Updated: 16 July 2024

1928875 (Refugee) [2024] AATA 2469 (1 May 2024)



DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Asif Raza Mir (MARN: 1796890)

CASE NUMBER: 1928875

COUNTRY OF REFERENCE: Pakistan

MEMBER: Fraser Robertson

DATE: 1 May 2024

PLACE OF DECISION: Perth

DECISION: The Tribunal remits the application for reconsideration with the direction that the applicants satisfy s 36(2)(aa) of the Migration Act.

Statement made on 01 May 2024 at 8:25am

CATCHWORDS
REFUGEE – protection visa – Pakistan – ethnicity and religion – Hazara Shia Muslims – witnessed publicly-reported attack – recognised and chased by attackers before escaping – reported to police before threats against further assistance – spontaneous, detailed and credible evidence – country information – second applicant’s Australian citizen wife originally from another country, and children – need to work outside Hazara enclaves – relocation for refugee criterion not required to be reasonable – no real chance of serious harm in major city – relocation for complementary criterion required to be reasonable – no family connections or personal resources – no access to state protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (c), 36(2)(a), (aa), (2A), (2B)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
DQU16 v MHA  [2021] HCA 10 ; 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
FCS17 v MHA [2020] FCAFC 68; 276 FCR 644
Fox v Percy [2003] HCA 22; 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MIEA v Guo [1997] HCA 22; 1997 CLR 559
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v MIEA [1994] FCA 301; 34 ALR 347
SZLVZ v MIAC [2008] FCA 1816

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
  2. For these reasons, the decision under review should be set aside and remitted with a direction that the applicants satisfy s 36(2)(aa) of the Act.

BACKGROUND

  1. The applicants are brothers from Pakistan who last arrived in Australia in December 2017 and applied for a protection visa in May 2018. They claimed to fear harm as Shia Hazaras from Quetta, who had witnessed a sectarian attack and were prepared to cooperate with the police in terms of investigating and prosecuting the attackers.
  2. The first-named applicant was interviewed on 6 May 2019. On 24 September 2019, the delegate refused to grant the applicants a protection visa.

Review application

  1. The applicants have applied to the Tribunal for review of the delegate’s decision. They were represented by their registered migration agent, Mr Asif Raza Mir. The applicants provided a copy of the delegate's decision to the Tribunal.
  2. The applicants appeared before the Tribunal on 30 April 2024. The Tribunal hearing was conducted with the assistance of an interpreter. The evidence material to this decision is referred to below.

RELEVANT LAW

  1. 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 either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as such a person who holds a protection visa of the same class.

Refugee criterion

  1. 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 decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[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.[2] Persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]
  2. A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.[6] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.

Complementary protection criterion

  1. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[7] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8] Circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.

Credibility

  1. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility. Assessment of credibility is an inherently difficult task.[9] The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.[10] Caution is required when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.[11] Inconsistencies in an applicant’s account may or may not be significant.[12] I should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims.[13]

Mandatory considerations

  1. As directed[14], I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report[15].

ANALYSIS, FINDINGS AND REASONS

  1. The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act.
  2. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[16] The Tribunal does not have any responsibility or obligation to specify or establish, or assist an applicant in specifying or establishing, their claims. When assessing the claims made, there is no requirement to uncritically accept any or all of the allegations made.[17] Rebutting evidence is not required before finding that a particular factual assertion is not made out.[18]

Country of nationality

  1. The applicants claim to be Pakistani nationals. They travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Pakistan is the applicants' country of nationality and the receiving country.

The applicants background, experiences and fear of harm

  1. The first-named applicant was born in [Year]. The second named applicant was born in [Year]. The first-named applicant travelled to Australia initially in March 2017 and returned to Pakistan in June 2017. The applicants arrived in Australia together in December 2017.
  2. The applicants are Shia Hazaras from Quetta, Balochistan province in Pakistan. They hold Pakistani citizenship and do not have the right to reside in any other country. Their fears of serious harm stem from their identity as ethnic Hazaras who are Shia Muslims. I accept that they are both Shia Muslims and ethnically Hazara. They have distinctive features consistent with their claimed Hazara ethnicity and speak Hazaragi.
  3. The second-named applicant is married to an Australian citizen and has [children] who are also Australian citizens. Otherwise, the applicants' family all presently live in Quetta, save for one sister who lives in Australia with her Australian husband. Her husband was originally from Pakistan and attended the hearing as a support person. The applicants have another sister who, for a period, lived in Karachi with her husband, who was also Hazara. The first-named applicant explained that they returned to Quetta because of their difficulties in Karachi, particularly regarding accommodation and employment. That evidence is consistent with country information, and I accept it.
  4. Their fears are, in part, based on their own experiences and, in part, the general situation facing Shia Hazara in Quetta. The applicants claim that [in] October 2017, while travelling to work, they witnessed gunmen attacking a vehicle. It is claimed that the attackers noticed them, recognised them and fired at them, leading to a chase that ended only when their motorcycle crashed into a power pole and bystanders intervened to help.
  5. Despite reporting this incident to the police the following day, the statement was not registered. It is claimed that around a week after witnessing the attack, two policemen visited them at work and asked for assistance to identify the assailants, suggesting that they may be needed as eyewitnesses in court. The applicants claim that soon after this interaction, anonymous threatening phone calls began warning against assisting the police.
  6. The first-named applicant started working full-time in a [workplace] after completing his schooling. His employer was also a Hazara. He assisted with making [products]. He worked there until he left Pakistan. In Australia, the first-named applicant works as [occupations 1 and 2]. He has four years' experience in both jobs. He has otherwise undertaken odd jobs in between.
  7. Country information supports the applicants’ claims.[19] I am not prepared to place significant weight on apparent or perceived inconsistencies about accounts concerning casualty figures. As the applicants submit, various reports include differing accounts about casualty figures. Moreover, and perhaps more importantly, it is necessary to consider the circumstances of the applicants when they witnessed the attack. That is to say, the applicants do not claim to have been able to survey the scene, check on people and inventory the casualties. They do not claim to be first responders who were, after some time, then set upon. Rather, the applicants' claims are such that following their witnessing the attack, they were almost immediately pursued by the attackers and fled at speed.
  8. Having considered all of the evidence about the attack and what occurred in the period following the attack, I am satisfied the claims are credible. I place significant weight on the first-named applicant, given at both the interview and the Tribunal hearing. I am satisfied that he is both a credible witness who ought to be believed. I found his evidence to be detailed and persuasive. It was given in such a way, both in terms of detail and spontaneity, that I was readily satisfied that the recollection was genuine. The way he gave evidence about matters both relating to, and unrelated to, his claims was entirely consistent. I accept that the applicants witnessed the attack as claimed, were chased by attackers who recognised them and crashed into a power pole. I also accept that they unsuccessfully tried to report the event to the police, but the police were sceptical of their account because they had survived. I am also satisfied that the police sought their assistance in identifying the assailants and that, because of that, they faced threats and were fearful for their safety.

Country Information

  1. Hazaras are an ethnic group with a distinctively East Asian appearance and origins in Afghanistan.[20] It is estimated there are 600,000 to 1 million Hazaras in Pakistan, and most of them are Shia Muslims.[21]
  2. There has been a recent further influx of Afghan asylum seekers into Pakistan, including Hazaras, since the Taliban takeover in Afghanistan in August 2021.[22] Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan.[23] Hazaras outside Quetta tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack.[24]
  3. Militant groups, including Lashkar-e-Jhangvi ('LeJ') and Islamic State ('IS'), consider the Hazaras ‘infidels’ who are ‘worthy of killing’.[25] At least 2,000 Hazaras were killed by militants in Pakistan between 1999 and 2019 in various incidents, including bomb blasts, suicide attacks and target killings.[26] Recent IS attacks in Pakistan include the bombing of a mosque in Quetta in January 2020 that killed 15 people and an attack in January 2021 that killed 11 Hazara miners in Balochistan.[27] Five Hazara men were killed in a shooting claimed by the LeJ terrorist group in January 2017.[28]
  4. On 5 March 2018, a Hazara man was shot and killed while at work in a workshop in the Ali Bhai Road area of Quetta.[29] On 1 April 2018, a Hazara man was killed and another injured after gunmen on a motorbike opened fire on the taxi they were travelling in in Quetta’s Kandahari Bazaar area.[30] On 22 April 2018, two Hazara men were killed and a third injured in Quetta’s Western Bypass area.[31] On 29 April 2018, two Hazara shopkeepers were killed in a drive-by shooting by unidentified assailants at Quetta’s Jamaluddin Afghani Road area.[32]
  5. In April 2019, a bombing in the Hazarganji market killed 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners in Mach.[33] Militant groups retain the intent and capacity to attack Hazaras throughout Pakistan.[34]
  6. The Hazara community in Quetta lives in two enclaves: Hazara Town and Mariabad.[35] The applicants are from [Location]. The Pakistani government provides security in these communities, including vehicle checkpoints and searches on entry and exit. Government forces also provide security for Hazara religious processions and the Hazarganji market.[36]
  7. DFAT assesses Hazaras who live in the enclaves in Quetta face a moderate risk of societal discrimination in the form of impeded access to higher education, medical services, employment and affordable food.[37]
  8. DFAT further assesses Hazaras in Balochistan (where Quetta is located) face a high risk of violence from militants based on their ethnic and sectarian identity.[38] Outside Balochistan the risk of violence for Hazaras is moderate.[39] Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation.[40] The UK Home Office notes that the majority of attacks against Hazaras occur in Balochistan.[41] Armed sectarian groups are known to target Shia Muslims, including Hazaras, and Hazaras can be vulnerable to attack when they leave their enclaves in Quetta because they are clearly identifiable.[42] Typically, Hazaras are targeted when travelling to or from these enclaves by unidentified gunmen on motorcycles.[43]
  9. Outside Balochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination but notes relocation to these areas is difficult or impossible for many.[44]
  10. The US Department of State reported in 2023 and again in April 2024 that sectarian militants continued to target members of the Hazara ethnic minority, who are largely Shia Muslim, in Quetta, Balochistan.[45] It also reported that Hazaras also continued to face discrimination and threats of violence.[46]
  11. The Austrian Centre for Country of Original & Asylum Research and Documentation ('ACCORD') published a report in April 2024 that referred to at least 261 attacks against the Hazara community in Balochistan province in the period 1999 to 2022, resulting in 1,046 deaths and 1,262 injured.[47]
  12. DFAT has reported that the security situation in Pakistan has improved over recent years. Still, since mid-2021, it has started to deteriorate, with terrorist attacks increasing and mostly occurring in Khyber Pakhtunkhwa and Balochistan.[48]
  13. The Pakistan Institute for Conflict and Security Studies ('PICSS') notes that the first half of 2023 saw a steady rise in terrorist incidents in Pakistan, which is a 79% increase compared to the same time in 2022. Balochistan experienced 75 terror incidents in the first half of 2023, resulting in 100 deaths and 163 injuries, which was a 103% increase.[49] PICSS reports that during 2023, Pakistan witnessed the highest number of suicide attacks since 2014.[50] Balochistan is one of the areas most affected, with civilians and security forces personnel being killed or injured.[51] PICSS also reports that in 2023, Pakistan saw a 69 per cent rise in attacks, an 81 per cent increase in resultant deaths, and a 60 per cent surge in the number of injured.[52] There was a 57 per cent increase in Balochistan.[53] I note that even when attacks are on the decline in Pakistan more broadly, violence in Balochistan remains prevalent.[54]
  14. The 2023 Pak Institute for Peace Studies ('PIPS') Pakistan Security Report 2023 is to a similar effect.[55] PIPS reports that terrorist attacks have risen in 2023. Balochistan is the second-most affected area in Pakistan, and Baloch insurgent groups, as well as religiously inspired militant groups, were responsible for attacks in the province.[56] Many anti-militant operations were conducted around Pakistan in 2023, and Quetta was one of the districts where more than five such operations took place.[57] Incidents of communal or faith-based violence also increased in 2023.[58]
  15. DFAT Report assesses that Shia in Pakistan face a moderate risk of sectarian violence, and the situation has improved in recent years.[59] The country information overall, however, demonstrates that whilst the situation for Shia has improved, the position for Shia Hazaras remains of significant concern. Indeed, the DFAT Report notes that some Shia, including Hazaras, face specific, heightened risks.[60] However, the overall number of incidents is still low compared to the overall population. That said, the risk for Hazaras is, in my view having regard to the country information, materially greater than that faced by non-Hazara Shias.
  16. That said, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[61]
  17. Both applicants are Shia Hazara men who I accept will have to work to support themselves and their families financially. The country information indicates that economic opportunities for Hazaras in their enclaves in Quetta are limited. I accept that if they return to live within [Location], they will seek employment, and this employment is likely to be outside the enclave. The applicants have limited work experience in Quetta. While they both worked for the same [workplace], they were young. The first-named applicant was not yet [Age] years old, and the second-named applicant was not yet an adult. In my view, the country information indicates that in these circumstances, the applicants would face a real chance of serious harm as Shia Hazaras working regularly outside the [Location] enclave if they returned to Pakistan now or in the reasonably foreseeable future. The frequent travel to and from the enclave would significantly increase the chance of them experiencing serious harm.
  18. Whilst I appreciate that a not insignificant period has passed since the attack that the applicants witnessed, I cannot exclude that their prior willingness to assist police may elevate their risk of individual harm. In isolation, this may not have lead me to conclude that the applicants face a real chance of serious harm. However, I must consider their overall profile, as Shia Hazaras from Quetta, cumulatively in assessing whether the applicants face a real chance of serious harm.
  19. In the circumstances, I am satisfied that the applicants face a real chance of serious harm in Quetta, now or in the reasonably foreseeable future on account of the cumulative effect of their ethnicity, religion and prior willingness to assist police to both locate and prosecute perpetrators of sectarian violence. Whilst the last of these factors may not obviously involve a s 5J(1)(a) ground, I am nevertheless satisfied that their religion and ethnicity would equally be essential and significant reasons[62] for their real chance of harm.
  20. However, a person only has a well-founded fear of persecution if the real chance of persecution relates to all areas of a receiving country.[63] In respect of the refugee criterion for protection, I am to consider whether there are areas of the country where “there is safe human habitation and to which safe access is lawfully possible”[64] and whether, if an applicant resided there, they would have a well-founded fear of persecution.
  21. I am not to consider “areas of a receiving country” that are “unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work”.[65] Further, s 5J(1)(c) does not require relocation to that area to be reasonable. This contrasts with the consideration required under the complementary protection criterion, which specifically requires consideration of the reasonableness of relocation within a receiving country under s 36(2B)(a).[66]
  22. The 2022 DFAT Report observes that:[67]
    5.23 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate (see Women). For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.

    5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later (see Women). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.

  23. The Tribunal considers that Karachi, in Sindh province, is a habitable city to which safe access is lawfully possible for the applicant. The Pakistan Bureau of Statistics estimates that Karachi's population in 2023 will be around 20 million people, and Sindh's population will be around 55.7 million.[68] I am satisfied that the applicants can safely and legally access Karachi directly through its international airport without passing through Quetta.
  24. Country information indicates that small populations of Shia Hazaras live in Karachi.[69] DFAT Reports that large urban centres such as Karachi have ethnically and religiously diverse populations, offering some anonymity for people fleeing violence by non-state actors.[70] Whilst DFAT reports that militant groups retain the intent and capacity to attack Hazaras throughout Pakistan,[71] it also observes that there have been no attacks outside Balochistan since 2014.[72] Moreover, according to DFAT, outside Balochistan, Hazaras face a low risk of societal or official discrimination, but relocation to these areas is difficult or impossible for many. Smaller populations of Hazaras live in Karachi, Lahore and Islamabad and Hazaras outside Quetta tend not to live in enclaves (unlike in Quetta) to reduce the risk of ethnic profiling, discrimination and attack. Crime rates in Lahore and Karachi have decreased recently due to police crackdowns.[73]
  25. Based on country information, I am satisfied that the applicants would not face a real chance of serious harm in Karachi.
  26. For the above reasons, I am not satisfied that the applicants are refugees within the meaning of s 5H(1) the Act. On that basis, the applicants do not meet the criterion in s 36(2)(a) of the Act.

DO THE APPLICANTS MEET THE COMPLEMENTARY PROTECTION CRITERION?

  1. To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm.[74]
  2. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[75] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).[76]
  3. For reasons I have already given, I am satisfied that the applicants face a real chance of serious harm in Quetta. Subject to the qualification in s 36(2B), I accept that the applicants face a real risk of significant harm in Quetta.
  4. Section 36(2B)(a) of the Act directs that there is not a real risk of significant harm to the applicants if it would be reasonable for them to relocate to an area of the country where there would not be a real risk of significant harm. Karachi would be such an area. However, while reasonableness does not condition relocation for the refugee criterion assessment, it does expressly condition relocation for the complementary protection criterion. I return to the reasonableness of relocation in the context of the complementary protection assessment below.
  5. Whether a Hazara can relocate strongly depends on their personal resources and family connections.[77] Hazaras have reported discrimination concerning employment because of security risks and stereotypes against the community, as well as non-Hazaras being worried about employing Hazaras in case their presence makes them a target.[78]
  6. In the past, Hazaras were often employed in the military and public service, but few now apply for these jobs due to discrimination and fear of attacks. The UK Home Office reported in April 2023 that Pakistan suffered from a lack of formal housing in Pakistan, which is said to be generally unaffordable, and that half of all urban households are overcrowded or live in informal settlements with inadequate access to basic infrastructure and services.[79] Formal housing is out of reach for most of the population.[80] The influx of Afghan refugees has made the housing situation worse both in terms of availability and cost.[81] More than half of the population in Karachi lives in slums.[82]
  7. The applicants have never lived in Pakistan outside of Quetta. If returned to Pakistan, they would need to be housed, find employment, and have family support. Based on the above, I am satisfied that relocation to Karachi is not reasonable. They would be away from the enclave in which they were raised and where their family otherwise lives. There also appears to be a general societal attitude of disapproval and discrimination in respect of Hazaras, largely stemming from the influx of large numbers of Afghan Hazaras who have been living in Pakistan for some time, but Pakistan is presently in the process of expelling them to Afghanistan.
  8. As for the second-named applicant, the prospect of his family relocating with him – from Australia, where they are citizens – is between remote and non-existent. His wife is originally from [Country], not Pakistan. Yet, I have no doubt he feels obliged to do so and will seek to support them. He will seek to engage in employment for that purpose, and that employment will expose him to a risk of harm. Further, the applicants would face significant barriers to employment and likely experience societal discrimination. They would likely be living in slum-like conditions. I otherwise accept that it would not be reasonable to require the applicants to relocate anywhere else in Pakistan for broadly the same reasons. In my view, the only place the applicants could reasonably live is in Quetta, where I have found they would face a real risk of significant harm.
  9. Turning to the other qualification provided in s 36(2B) of the Act, I do not accept that the applicants can access protection from an authority to reduce their risk of harm to something less than a real risk.[83] If anything, country information suggests that the presence of authorities can, in many instances, increase the risk of violence, not mitigate it in Pakistan. Moreover, in circumstances where the applicants previously sought to engage with the police, were treated sceptically and subsequently were threatened I have doubts about the willingness of authorities in Pakistan to provide protection to the applicants specifically. As a result, I do not consider that the applicants can access protection to reduce the risk of harm they face to something less than a real risk of harm.
  10. There is no evidence to suggest that the applicants have a right to enter into and reside in other country.[84] Additionally, I am not satisfied that the risk faced by the applicants is one faced by the population generally.[85] It is a risk faced specifically by Shia Hazaras who live in and around the enclaves in Quetta.
  11. For the above reasons, I am satisfied that the applicants are entitled to complementary protection and meets the complementary protection criterion in s 36(2)(aa) of the Act.

CONCLUSION

  1. The applicants are not persons in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). They would not face a real chance of serious harm in Karachi for the purposes of the Act.
  2. However, having considered the alternative criterion in s 36(2)(aa), I find that the applicants face a real risk of significant harm in Quetta, and it would not be reasonable to require them to relocate to Karachi. I accept that applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

DECISION

  1. The Tribunal remits the application for reconsideration with the direction that the applicants satisfy s 36(2)(aa) of the Migration Act.


Fraser Robertson
Member

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

  1. [1]Migration Act 1958 (Cth), s 5H(1)(a).
  2. [2]Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
  3. [3]Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
  4. [4]Migration Act 1958 (Cth), s 5J(4)(c).
  5. [5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
  6. [6] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
  7. [7] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [13]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
  8. [8] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [14]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
  9. [9] See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
  10. [10] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).
  11. [11] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
  12. [12] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
  13. [13] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]-[204].
  14. [14] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
  15. [15] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 25 January 2022, 20220125094359 ('2022 DFAT Report').
  16. [16] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
  17. [17] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
  18. [18] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
  19. [19] See [News article title, source, date, reference].
  20. [20] 2022 DFAT Report, [3.3].
  21. [21] 2022 DFAT Report, [3.3].
  22. [22] 2022 DFAT Report, [2.50]; 'Pakistan crackdown on Afghan refugees leaves ‘four dead’ and thousands in cells', Shah Meer Baloch, Guardian (Australia edition), 02 March 2023, 20230303095449; 'Pakistan sends back hundreds of Afghan refugees to face Taliban repression', Zofeen T. Ebrahim, The Guardian, 10 January 2023, 20230111154833.
  23. [23] 2022 DFAT Report, [3.4].
  24. [24] 2022 DFAT Report, [3.4].
  25. [25] 2022 DFAT Report, [3.5].
  26. [26] 2022 DFAT Report, [3.5].
  27. [27] 2022 DFAT Report, [2.42].
  28. [28] 'Five Hazara men injured in Quetta gun attack', Dawn, 6 January 2017, CXC9040666712.
  29. [29] 'Hazara man shot dead in Quetta’, Dawn, 05 March 2018, CXBB8A1DA26111.
  30. [30] 'Hazara man shot dead, another injured in Quetta attack’, Dawn, 1 April 2018, CXBB8A1DA26109; ‘Hazara man gunned down in Quetta’, Pakistan Today, 18 April 2018, CXBB8A1DA30155.
  31. [31] ‘2 Hazara men gunned down in 'targeted attack' in Quetta police’, Dawn, 22 April 2018, XBB8A1DA25908; ‘Spike in violence in Quetta must stop’, Human Rights Commission of Pakistan, 25 April 2018, CXBB8A1DA27764; ‘Two killed in targeted attack on Hazara community in Quetta 01’, Express Tribune, 22 April 2018, CXBB8A1DA26089.
  32. [32] ‘Two more Hazara men shot dead in Quetta’, The Nation, 29 April 2018, CXBB8A1DA26227; ‘2 Hazara men shot dead in fourth 'targeted' attack this month in Quetta’, Dawn, 28 April 2018, CXBB8A1DA26531.
  33. [33] 2022 DFAT Report, [3.5].
  34. [34] 2022 DFAT Report, [3.5].
  35. [35] 2022 DFAT Report, [3.6].
  36. [36] 2022 DFAT Report, [3.6].
  37. [37] 2022 DFAT Report, [3.11].
  38. [38] 2022 DFAT Report, [3.12].
  39. [39] 2022 DFAT Report, [3.12].
  40. [40] 2022 DFAT Report, [3.12].
  41. [41] 'Country Policy and Information Note - Pakistan: Hazaras', UK Home Office, 25 July 2022, 20220726103354.
  42. [42] 'Country Policy and Information Note - Pakistan: Hazaras', UK Home Office, 25 July 2022, 20220726103354, [2.4.13]-[2.4.14].
  43. [43] See, for example, ‘Two more Hazara men shot dead in Quetta’, The Nation, 29 April 2018, CXBB8A1DA26227; '2 Hazara men gunned down in 'targeted attack' in Quetta police’, Dawn, 22 April 2018, CXBB8A1DA25908; ‘Hazara man shot dead, another injured in Quetta attack’, Dawn, 1 April 2018, CXBB8A1DA26109; ‘Hazara man gunned down in Quetta’, Pakistan Today, 18 April 2018, CXBB8A1DA30155; ‘Hazara shopkeeper gunned down in Quetta’, Dawn, 18 April 2018, CXBB8A1DA25909.
  44. [44] 2022 DFAT Report, [3.12].
  45. [45] 'Country Reports on Human Rights Practices for 2023 - Pakistan', United States Department of State, 22 April 2024, 20240423115046, pp 78-79.
  46. [46] 'Country Reports on Human Rights Practices for 2023 - Pakistan', United States Department of State, 22 April 2024, 20240423115046, pp 78-79.
  47. [47] 'Pakistan: COI Compilation, April 2024', ACCORD, <https://www.ecoi.net/en/file/local/2107646/ACCORD_Pakistan_April_2024.pdf>.
  48. [48] 2022 DFAT Report [2.34]-[2.36].
  49. [49] 'Terrorism in Pakistan Soars 79% in First Half of 2023', Pakistan Institute for Conflict and Security Studies, 02 July 2023, 20230804133120.
  50. [50] 'Unprecedented Surge: Pakistan Witnesses Highest Number of Suicide Attacks Since 2014', Pakistan Institute for Conflict and Security Studies, 26 December 2023, 20240131084841.
  51. [51] PICSS, 2023 end with 70% Increase in Militant Attacks, 81% Rise in Deaths: PICSS Report, Abdullah Khan, 1 January 2024.
  52. [52] 'Pakistan reports an increase in deaths related to terrorism in 2023', First Post, 01 January 2024, 20240104144149.
  53. [53] 'Pakistan reports an increase in deaths related to terrorism in 2023', First Post, 01 January 2024, 20240104144149.
  54. [54] See 'Second Conservative Month sees decline in militant attacks in Pakistan: PICSS Monthly Report Oct 2023', Pakistan Institute for Conflict and Security Studies, 06 November 2023, 20231129115452.
  55. [55] 'Pakistan Security Report January 2023', Pakistan Institute for Peace Studies, January 2023, 20230227094910.
  56. [56] 'Pakistan Security Report January 2023', Pakistan Institute for Peace Studies, January 2023, 20230227094910.
  57. [57] 'Pakistan Security Report January 2023', Pakistan Institute for Peace Studies, January 2023, 20230227094910.
  58. [58] 'Pakistan Security Report January 2023', Pakistan Institute for Peace Studies, January 2023, 20230227094910.
  59. [59] 2022 DFAT Report, [3.61].
  60. [60] 2022 DFAT Report, [3.18].

[61] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).

  1. [62] Migration Act 1958 (Cth), s 5J(4)(a).
  2. [63] Migration Act 1958 (Cth), s 5J(1)(c).
  3. [64] FCS17 v Minister for Home Affairs [2020] FCAFC 68; 276 FCR 644 (Allsop CJ, White and Colvin JJ).
  4. [65] FCS17 v Minister for Home Affairs [2020] FCAFC 68; 276 FCR 644, [80] (Allsop CJ, White and Colvin JJ).
  5. [66] FCS17 v Minister for Home Affairs [2020] FCAFC 68; 276 FCR 644, [81] (Allsop CJ, White and Colvin JJ). See also, in respect of reasonableness, MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (Mortimer J, as her Honour then was).
  6. [67] 2022 DFAT Report, [5.23]-[5.24].
  7. [68] See Pakistan Bureau of Statistics, <https://www.pbs.gov.pk/sites/default/files/population/2023/Sindh.pdf>.
  8. [69] 2022 DFAT Report, [3.4].
  9. [70] 2022 DFAT Report, [5.24].
  10. [71] 2022 DFAT Report, [3.5].
  11. [72] 2022 DFAT Report, [3.5].
  12. [73] 2022 DFAT Report, [2.49].
  13. [74] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [13]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
  14. [75] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
  15. [76] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [27]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
  16. [77] 2022 DFAT Report, [3.9].
  17. [78] 'A Multi-layered Minority: Hazara Shia Women in Pakistan', Coalition for Religious Equality and Inclusive Development (CREID), December 2020, 20210608114502; 'Country Policy and Information Note - Pakistan: Hazaras', UK Home Office, 25 July 2022, 20220726103354, [2.6].
  18. [79] 'Country Policy and Information Note Pakistan: Internal relocation', UK Home Office, April 2023, 20230707132107, [2.1.8], [3.4].
  19. [80] 'Country Policy and Information Note Pakistan: Internal relocation', UK Home Office, April 2023, 20230707132107, [2.1.8], [3.4].
  20. [81] 'Islamabad rents rise amid influx of Afghan refugees', Jamila Achakzai, Deutsche Welle, 03 March 2023, 20230303140333.
  21. [82] 'Country Policy and Information Note Pakistan: Internal relocation', UK Home Office, April 2023, 20230707132107, [3.4.2].
  22. [83] Migration Act 1958 (Cth), s 36(2B)(b).
  23. [84] Migration Act 1958 (Cth), s 36(3).
  24. [85] Migration Act 1958 (Cth), s 36(2B)(c).

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