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1605363 (Refugee) [2019] AATA 224 (17 January 2019)

Last Updated: 25 February 2019

1605363 (Refugee) [2019] AATA 224 (17 January 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1605363

COUNTRY OF REFERENCE: Pakistan

MEMBER: Anne Grant

DATE: 17 January 2019

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.


Statement made on 17 January 2019 at 9:19am

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – Turi Shia – father’s high profile in the community – death threats from extremist groups – family unable to relocate in Pakistan – adverse profile – person educated in a Western Country – claims supported by country information – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36. 65, 499
Migration Regulations 1994, Schedule 2


Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
  2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 2 March 2015. The delegate refused to grant the visa. The delegate accepted that the applicant was a Turi Shia and that his family originated from Kurram Agency (in the former Federally Administered Territories or FATA), though they lived principally in Peshawar, Kyhber-Pakhtunkhwa province. The delegate also accepted that the applicant’s father has a high profile within the Turi/Shia community. The delegate found parts of the applicant’s evidence lacking in credibility or consistency and did not accept that the applicant’s father was ‘on a hit list’ due to his profile in the Turi community or that the family received a threat letter from extremists in 2011, that his cousin was kidnapped in January 2010, or that the applicant received a threat by telephone in August 2014. The delegate found that the applicant would not face a real chance of persecution because of his race or religion if he were to return to Pakistan, or because of his father’s profile as a Turi Shia elder. The delegate also found that there were not substantial grounds for believing that the applicant would suffer significant harm should he be removed to Pakistan.

CRITERIA FOR A PROTECTION VISA

  1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
  2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
  3. 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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
  4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
  5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

  1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him or her being removed from Australia to Pakistan, there is a real risk that he or she will suffer significant harm.
  2. The applicant arrived in Australia on [date] January 2015. Prior to coming to Australia, he lived in Peshawar, Pakistan and had spent several years outside of the country in [Country 1] studying since 2011. The applicant has a [degree from University 1] and [a degree from University 2] from 2009 – 2011 in Islamabad.
  3. The applicant attended a hearing on 30 October 2018. He was assisted by his representative [who] also made submissions. An Urdu interpreter was present for assistance, however the hearing was conducted in English.
  4. The applicant’s application for protection included the following claims:
  5. With his application, his representative [provided] a further Statement by the applicant dated 23 February 2015[1] which contained the following additional details:
  6. In support of his claims, the applicant also provided documents demonstrating his family origins and links to Kurram Agency, his father’s honours, a FIR relating to the abduction of his cousin [Mr A] dated 16 January 2010 (including translation), his educational qualification at [University 2] and at [University 1], and information about [(his father’s company)]. He also provided news reports of his father’s NGO involvement in Upper Kurram in 2001, and information about the founding of [Unviersity 4] at Parachinar and Sadda in Kurram Agency and his father’s role in various councils and Turi organisations. The founding affidavit for [Organisation 2] was also included, in which the applicant and his father are named as founding members dated [May] 2010.
  7. At hearing, the applicant described his father’s involvement in a number of tribal initiatives [in] the Tribal areas. He explained that his father’s business was [details deleted]. The business was mainly staffed by Sunnis. The applicant described the family taking vacations in their ancestral village [but] that most of their family holidays were to Parachinar until the conflict started. The family has always maintained a family home in Parachinar. It was not safe for family holidays after 2007, but his father did go to Parachinar if he had some important Tribal meeting or to attend funerals. His family still owns an apartment in Islamabad. He described in more detail how the family had relocated there when their situation became unsafe in Peshawar (due to his father’s profile) but that they were then ‘tracked’ somehow to their Islamabad residence and threatened there, triggering the family to relocate within Islamabad and then back to Peshawar. In relation to the decision to return to Peshawar, the applicant explained that it was not that the risk there had dissipated, but that his father thought that, at least there they had support and some security, a supportive social and tribal network. Hiding in Islamabad, they had been found, anyway, so they decided to return to Peshawar as their attempt to move for safety had been unsuccessful. A sign of this is that the applicant’s father sent him to [Country 1] to study to keep him from danger in this period.
  8. The applicant agreed that he had travelled home to Pakistan and stayed with his family in Peshawar on holidays from study between 2011 and 2014, and that on those occasions, he did not encounter threats. However, those holidays were spent with his family, he was unable to meet up with friends due to the risks for his safety. He went to work sometimes with his father. It was always the plan that he would take over his father’s business. It was always expected, too, that he would take over the social work aspects of his father’s life as an elder in the Turi community.
  9. At hearing, the applicant also described the small NGO his father started and which they hoped to run together. The goal of the NGO ([Organisation 2]) was to encourage Shias from different tribes to work together [in] the tribal areas for the benefit of all. They were unable to work on that openly as it would have drawn them to the attention of extremists. This is because funding for projects would have been drawn from foreign NGO’s, (which the Taliban opposes) and also because the extremists have an interest in the tribes lacking co-ordination because this enables them to in their goals to threaten and manipulate the people of the former FATA. The applicant spoke passionately about this aspect, his father’s role in the region, and was knowledgeable about the need for improvement in infrastructure and facilities throughout the region. He reiterated that he feels the pain of his people and if he were in Pakistan, he would do whatever he could to assist, including NGO work and following in his father’s Turi elder role.
  10. I accept that the applicant is a Turi Shia whose family is from Parachinar, though he has lived most of his life in Peshawar. I accept that his father has held and continues to have a significant public profile as an elder of the Turi Shia tribe, though he is largely now retired from public life. I accept that the applicant has a strong tribal allegiance and would, if he were to return to Pakistan, choose to follow in his father’s footsteps, working on projects and non-government organisations for the furtherance of the wellbeing of the Turi and Shia tribesmen of Kurram Agency.
  11. I accept that the applicant studied in [Country 1] from 2011 to 2014 and that on return, he planned to work in his father’s company and to assist in his father’s Shia community work. I accept that the family received threats (including a letter in 2011 thrown into their garage area) that they would be killed due to their Turi Shia background. I am also satisfied that, to manage these threats, the family took precautions, changed address on a number of occasions (including relocating to Islamabad where the threat letter was actually received) both in Peshawar and in Islamabad. I accept that shortly after his return from [Country 1], the applicant received a threatening telephone call advising him that he would be killed as a ‘Kafir’ (infidel) from a member of the TTP. I accept that the applicant fears that, if he returns to Pakistan, he will be targeted and killed wherever he resides if his identity as a Turi Shia from a prominent family becomes known, and also if he participates in ongoing Shia community activities, such as projects associated with NGO’s or other tribal roles. After considering the applicant’s evidence, I am satisfied that the applicant would in fact continue his father’s work and be involved also as a prominent and public force for social causes related to the Turi Shia community in both Kurram Agency and Peshawar if he were to return to Pakistan.
  12. At hearing, the applicant’s evidence was consistent with the information in his written claims as summarised above. He provided evidence in English and without hesitation. He provided additional clarification on various matters discussed without prevarification or avoidance. I assessed the applicant as and I find him to be a reliable and credible witness.
  13. I accept the applicant’s evidence about the abduction of his cousin as it is supported by documentation and is wholly consistent with reports of abductions in Pakistan and noted in various country and general news reports. I accept that the applicant is genuinely fearful that he too will be abducted, ransomed, beaten and killed, especially given his father’s prominent profile within the Turi Shia community. I accept that the applicant’s father has avoided serious harm thus far largely because he avoids travelling as much as possible and does so only when he must with great caution. When the family relocated to Islamabad, he avoided travelling to Peshawar as much as possible whilst still managing his business. The Tribunal also accepts the applicant’s father sent him to study overseas because he was afraid for his security given his profile and activities.

Refugee Assessment

  1. The applicant fears persecution in the form of being killed, abducted, assaulted, harassed or threatened by extremists in Pakistan. The reasons for the harm he fears are his religion as a person of the Shia Faith, his membership of the particular social group of Turi tribesmen from Kurram Agency, his membership of the particular social group of prominent Turi Shia from Kurram Agency, and also because of his political opinion, as being perceived to be opposed to extremist ideology, both because of his father’s profile and his own, as a person educated in a Western Country, ([Country 1]). I am satisfied that the essential and significant reasons for the persecution feared by the applicant are all reasons as described in s.5J(1)(a).
  2. In a submission, the applicant’s representative referred to country information from a variety of sources to support the contention that the applicant’s fears are well founded, that state protection would not be adequate in the applicant’s case, and the real chance of persecution persists throughout the country.
  3. The threat which the Taliban and others pose to Shia Muslims in Pakistan is well-documented. Country information shows that Shia Muslims in general have been targeted for terrorist attacks across Pakistan by Sunni extremist groups including the Taliban. Shia Muslims (including Turi tribe members) from Kurram Agency, in particular, are widely perceived by the Taliban as having directly opposed them in conflict in their home region and as being opposed to their extremist ideologies. Consequently, Shias in Kurram Agency have historically been targeted for ‘special’ extremist attention in the form of target killings, bombings and abduction. Kurram Agency is in the Federally Administered Territories (FATA), which is now part of Khyber Pakhtunkhwa Province.
  4. As discussed at hearing, country information also indicates that there have been improvements in the overall security situation in Pakistan following the commencement of the military operation Zarb-e-Azb in mid-2014 and the National Action Plan (NAP) credited with a significant reduction in the number of violent attacks in Pakistan[2], leading DFAT to assess that overall most Shia in Pakistan face a low risk of sectarian violence. However DFAT qualify this assessment by stating that:
This risk can vary depending on geographic location (see assessments of Sectarian Violence by province, below) and for members of specific groups (see Hazaras and Turis, above). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure.[3]
  1. With respect to the security situation in the FATA, DFAT, referring to research undertaken by the FATA Research Centre (FRC), state that the number of violent incidents (of all types) declined by 25 per cent across the FATA in 2016, leading to a 60 per cent decline in the number of casualties compared to 2015. This decline in violent incidents is reflected in country information from other sources.[4] According to the FRC, this is due to the effectiveness of intensive air strikes, intelligence based operations, drone strikes and ground offences by the Pakistan Army.
  2. However despite the relative decline in violent incidents in FATA in 2015 and 2016, country information indicates that violence across the region remains prevalent and the region is not free from conflict with militant groups continuing to carry out attacks, primarily the Tehreek-e Taliban (TTP) and different factions of the TTP such as the Jamaat-ul-Ahrar (JuA) and Lashkar-e-Jhangvi (LeJ). DFAT report that despite the overall decline in violent incidents:
FATA still had the third-highest number of deaths from terrorism-related incidents across all regions of Pakistan according to the Pak Institute for Peace Studies (PIPS), with 163 people killed and 221 people injured in nearly 100 terrorism-related incidents during 2016. This represents around 18 per cent of all terrorism-related deaths in Pakistan in 2016, despite the FATA only having around two per cent of Pakistan’s population.[5]
  1. At hearing the applicant said that the security situation in Pakistan has again worsened during 2017 and 2018 and that it is not safe for him to return.
  2. The applicant’s contention that the security situation has worsened over the last couple of years is supported by country information which indicates that a number of large scale extremist attacks have occurred during 2017 and 2018. This includes a number of targeted attacks which occurred against Shias in Parachinar, resulting in numerous deaths and injuries of civilians in the first half of 2017. DFAT relevantly state as follows:
In 2017, militants have carried out a number of attacks targeting the Shi’a-majority city of Parachinar. On 21 January 2017, a bomb exploded in a crowded market, killing 25 people and injuring dozens more. The incident, for which Lashkar-e Jhangvi (LeJ) and the TTP have claimed responsibility, reportedly deliberately targeted Shi’a, in response to the death of LeJ leader Asif Chotu and support by Shi’a for Syrian President Bashar al-Assad. According to Pakistani news outlets, this is the fourth time that the same area of Parachinar has been targeted in recent years. On 31 March 2017, at least 24 people were killed and a further 100 injured in a suicide attack on a Shi’a imambargah in Parachinar, an attack claimed by Jamaat-ul-Ahrar. On 24 June 2017, two bombs detonated in a market busy with people preparing for Eid celebrations, killing 72 people and injuring more than 200 others. LeJ Al-Alami claimed responsibility for the attack.
DFAT assesses that Shi’a in the FATA typically face a low risk of sectarian violence overall, in the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the FATA. Prior to the attack in January 2017, Parachinar had experienced relative calm. However, as noted in the previous paragraph, three large-scale attacks targeted Shi’a in Parachinar in the first six months of 2017. These attacks killed more than 120 people and injured hundreds more, reflecting the ongoing risks faced by Shi’a in Parachinar.[6]
  1. In its annual security report, Security Overview of FATA for 2017 the FRC states:
The security situation in FATA remained volatile from January to December of the year 2017. Although targeted and intelligence based operations (IBOs) continued all over FATA, terrorist belonging to the Tehreek-e-Taliban Pakistan (TTP), Tehreek-e-Taliban Pakistan-Jamat-ul-Ahrar (TTP-JuA), Wazir Taliban, Islamic State of Khorasan (IS-K), Laskhar-e-Jhangvi (LeJ) stepped up their activities in FATA during the reporting year. However, the ratio of counter terrorism (CT) operations remained higher in comparison to the terrorist attacks during the year 2017.
...
Civilians remained the main target of terrorist organization during the year 2017. Of the total casualties, 760 (138 Killed and 437 Injured) were that of civilians, accounting for 63 percent of the overall casualties. 128 casualties (63 Killed and 65 Injured) were inflicted upon security forces which makes 11 percent of the overall casualties. Similarly, 29 casualties (11 Killed and 18 Injured) of civil militia were also reported during the year 2017.[7]
  1. In its agency-wise comparative analysis the FRC state the following with respect to Kurram Agency (the applicant’s tribal area):
In the backdrop of Islamic State of Khorasan (IS-K) growing influence inside Afghanistan, Kurram Agency, which shares border with Nargarhar, the primary strong hold of IS-K, remained volatile during the year 2017. ...Kurram agency witnessed a significant upward trend in violent incidents and resultant casualties was observed during the year 2017. Compared to 19 violent incidents in 2016, 52 such incidents were record during the year 2017, marking a significant increase of 173 percent in violent incidents. A similar trend was observed in casualty index. Compared to 115 casualties in 2016, 664 casualties were observed in the year 2017, which accounts for a remarkable surge of 477 percent in overall casualties in 2017. Civilians remained the prime target of terrorist outfits. Of the total casualties, 575 casualties (138 killed and 437 injured) were of that of civilians, accounting for 76 percent of the overall casualties in Kurram Agency. The main reason for the incremental surge in overall casualties, particularly that of civilians were the four high profile attacks carried out by Islamic State of Khorasan and other affiliated groups. The growing number of IED (improvised explosive device) attacks carried out by terrorist groups also contributed to the spike in overall casualties during the reporting year in Kurram agency.[8]
  1. As noted, country information from a variety of sources (including DFAT), clearly indicates that the situation has improved in the FATA due to the military operation Zarb-e-Azb (and its successor) and the launch of the NAP. This resulted in many militants being killed and others fleeing to Afghanistan. Nonetheless, recent country information indicates that targeted attacks against Shias continue in Kurram Agency and across Pakistan, and that anti-Shia groups such as the LeJ, and the TTP continue to carry out such attacks. The FRC in their annual security report for 2017 highlighted a significant upward trend in violent incidents in 2017, and that civilians remained the prime target of terrorist outfits. This indicates that the TTP and other militant groups have been able to regroup and regain their capacity to carry out major attacks to a certain extent, despite the government crackdown.
  2. I have noted DFAT’s assessment but consider that the historical incidents over 2017 and 2018 suggest that the risk of sectarian violence for civilians in Kurram Agency, particularly Parachinar, is higher than other parts of FATA. Three large scale attacks occurred targeting Shia in Parachinar in the first six months of 2017 killing more than 120 and injuring hundreds more. Additionally, I note DFAT’s assessment is that High-profile Shia face a moderate risk of violence, as they are more likely to be targeted.
  3. I also note the following quite recent information from Department of Home Affairs report: Common Claims in Pakistan October 2018:

Shia Muslims continue to face security threats from extremist groups and social discrimination from the public, although this type of behaviour continues to decline. In the first two quarters of 2018, Shia and Shia Hazaras were the religious communities most affected by sectarian violence in Pakistan.51 In the first quarter, there were 10 fatalities in the Shia community (of a total of 24 across all religions), and in the second quarter, six fatalities were recorded in the Hazara Shia community (of a total of 17). Three separate small-scale incidents targeting Shia Muslims (other than Hazaras and Turis, see above) occurred in 2017. On 26 February 2017 three Shias were killed in Dera Ismail Khan District of KP. That incident may have been related to an ‘old enmity’ and media reports are conflicting about whether it was a sectarian killing.

The Shia community in Karachi protested what they called a ‘renewed wave’ of sectarian killings in January 2017 after two murders in Karachi of prominent members of the community, which followed a number of murders in late 2016 in that city. However, the US Commission on International Religious Freedom notes an overall decline in the number of targeted killings of Shias in Karachi in recent years, in the aftermath of the law and order operation launched in the city in 2011.

The 2018 and 2017 Ashura commemorations passed without incident. Ashura is the tenth day of the first month of the Islamic calendar and a day in which Shias traditionally march in procession, creating an attractive target for anti-Shia extremists. Federal and provincial governments undertook extensive security planning and implemented a strong security presence to protect Shias during this period. In 2016, a spate of anti-Shia murders occurred during Muharram, mostly in Karachi. These attacks were indiscriminate and opportunistic and claimed by LeJ.

LeJ’s anti-Shia violence still occurs even after strong state action to contain them and the deaths of key leaders. LeJ is a Sunni terrorist organisation that is descended from Sipah-e-Sahaba Pakistan (SSP), an anti-Shia Deobandi outfit that also begot Ahl-e-Sunnat-wal-Jamat, a political wing of the movement. In response to Pakistan military operations against it and other groups, LeJ successfully decentralised its command.254 Banned since 2001,255 it now uses small operational groups (of two to three people). It has a core membership of between 500 and 1000.256 The LeJ and ISK have reportedly collaborated to undertake attacks in Balochistan during 2018.257 The LeJ also has links to other Pakistan-based terrorist organisations including the TTP...

LeJ activity has been reported recently and Pakistani authorities continue to target the group. LeJ has claimed joint responsibility, along with ISK, for several attacks in Quetta during 2018.264 The two groups have reportedly reached an understanding in Balochistan that LeJ’s foot soldiers will carry out localised attacks, under the ISK umbrella.265 LeJ claimed responsibility for the murder of an Ahmadi lawyer in March 2017.266 LeJ also claimed responsibility for the murder of an Ahmadi professor in April 2017267 Pakistani authorities killed one LeJ activist and arrested four others in March 2017268 and clashes between authorities and LeJ activists, which led to arrests, were also reported in January 2017...

Despite military operations against it, TTP retains the capacity to target authorities, civilians and other perceived opponents; it is the most active militant group in Pakistan.282 TTP has been a primary target of the Pakistani military’s operations in the Federally Administered Tribal Areas (FATA).283 In the second quarter of 2018, the TTP claimed responsibility for attacks that killed eight people,284 down from 18 in the first quarter of 2018.285 In 2016, TTP attacks killed an estimated 298 people.286 Its operational focus is FATA, KP province and Karachi.287 However, under Pakistan military pressure, some TTP operatives have relocated, primarily to Afghanistan, Punjab and Balochistan, where they have built up a capacity to operate

Turi Shias face violence and security threats in Kurram Agency. Turi Shias live primarily in Kurram, an area of the Federally Administered Tribal Areas (FATA) that borders Afghanistan, though some small communities live in other locations, including Islamabad.25 Turis live in close community with each other and, according to DFAT, this leads to a ‘low level of societal discrimination’; however their concentration in Parachinar may make them vulnerable to violence.

The death toll from terrorist attacks in Kurram Agency, where Turis predominantly live, spiked in 2017. The number of deaths in Kurram Agency jumped 607 per cent between 2016 and 2017, from 27 people killed to 191.27 An improvised explosive device (IED), claimed to have been jointly planted by LeJ-offshoot, LeJ Al Alami (LJA) and the Tehrik-i-Taliban (TTP) (see 'Fear from militant groups'), exploded in a vegetable market in Parachinar in January 2017 killing at least 21 people and injuring 87.28 In March 2017, at least 24 people were killed near a Shia prayer hall in an explosion that was claimed by JuA29 and 14 people were killed in April 2017 when a van hit a roadside bomb, which was reported planted by JuA who claimed to be targeting Shias and census collectors.30 A roadside bomb attack in January 2018 in Upper Kurram, where Turis predominantly live, killed six members of the same family.31 No other attacks similar in scale to those that occurred in 2017 have taken place so far this year.

Turi militias undertake both defensive and offensive actions.32 These militias resisted government efforts to disarm them in early 2017.33 Along with Sunni–Shia tension and efforts to prevent the ‘Talibanisation’ of the area34, another cause of the violence was Turi control of the main passage in that area between Afghanistan and Pakistan. In 2011 a deal was reached with militants to allow access to Afghanistan through Kurram.35 The status of that arrangement is not currently clear given the number of attacks in 2017, including those claimed by linked groups such as the TTP and JuA (see above) [9]

  1. During 2018, I have identified a number of reported terrorist incidents in Pakistan – some of which have occurred in the three regions where the applicant has a personal connection – Punjab (Islamabad), Khyber Pakhtunkhwa (Peshawar) and FATA (Parachinar). Not all attacks are sectarian in nature, and indeed, the majority of attacks during 2018 appear to have been politically targeted and also directed at police and security forces. Nonetheless, sectarian attacks also continued. Additionally, I note that in the context of general violence and struggling security forces, unreported incidents of abductions and violence may not be reported (particularly in large cities), so these are unlikely to be the only terrorist incidents which occurred during 2018:
  2. I have taken into account the whole of the country information before me and also considered these reported incidents of violence in various regions of Pakistan during 2018, several of which are sectarian in nature, and DFAT’s assessment of the situation for Shia’s generally, discussed above. I have also taken into account the significant upward trend in violent incidents in Kurram Agency as recorded by the FRC in their annual security report for 2017, even in the context of a lower level of terrorist attacks across the country during 2018. The whole of the information before me suggests that sectarian violence (along with other motivated violence) has peaks and lows of activity across Pakistan depending on the complex interaction between the extremist groups themselves, the Pakistan Government and armed forces, political influences and religious tensions.
  3. In assessing the applicant’s case, the Tribunal has also had regard to the UNHCR guidelines for assessing the protection needs of religious minorities in Pakistan published in January 2017 which state that Shias in Pakistan are reportedly the main target of sectarian attacks and in certain circumstances may warrant international protection. The report states relevantly as follows:
...Extremist Sunni militant groups reportedly view Shi’ites as “heretics”, “infidels” and “apostates” who should be punished with death. Shi’ites are reported to be subject to violent sectarian attacks by such militant groups, which are reportedly able to act with impunity.
The militant groups which are reportedly responsible for most of the attacks against Shi’ites in Pakistan are the Ahl-e Sunnat Wal Jama’at (ASWJ) (formerly named Sipah-e-Sahaba (SSP)),the Lashkar-e-Jhangvi (LeJ), Tehrik-e-Taliban Pakistan (TTP) and the Jundullah, a group closely affiliated with the TTP. Analysts have emphasized that sectarian attacks against civilians are a growing threat, particularly for the Shi’ite community. There has reportedly been an increase in sectarian violence targeting Shi’ite groups at least since 2012, with attacks primarily targeting ordinary Shi’ite individuals. Militant groups are reported to have used suicide bombers and grenade attacks in crowded Shi’ite areas such as schools, shopping areas and markets, as well as buses and other vehicles. They have reportedly attacked Shi’ite pilgrims travelling to and from Iran, and are reported to have targeted mosques, particularly during prayer times, as well as religious festivals, in particular the Ashura processions during the Shi’ite holy month of Muharram. There have also reportedly been targeted killings of Shi’ite professionals and officials, including, doctors, lawyers, politicians, prominent business people and local traders.[10]
  1. The Tribunal also notes DFAT’s advice that Turis are vulnerable to attack as follows:
While Turis are not visually distinctive, their concentration in a small geographic area in and around Parachinar makes them vulnerable to attack. Groups such as Tehreek-e-Taliban Pakistan (TTP) have carried out attacks directed at Turis because of their Shi’a faith over a significant period, particularly from around 2008 up until the beginning of counter-terrorism military operations in 2014. Operation Zarb-e-Azb and associated anti-terrorism activities led to a significant decrease in the number and severity of attacks on Turis in 2015 and 2016. However, three large-scale attacks targeting Turis in Parachinar occurred during the first six months of 2017. On 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar; on 31 March 2017 a suicide bomber attacked a Shi’a place of worship (imambargah) in Parachinar; and on 24 June 2017 two devices detonated in a market in Parachinar (see Sectarian Violence by province: The Federally Administered Tribal Areas (FATA), below). These attacks ostensibly targeted Turi Shi’a because of their religious affiliation, and killed more than 120 people.
...
DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.[11]
  1. Such country information indicates that whilst the security situation has improved since the military operation in FATA, violent incidences still occur, some of which target civilians and specifically Shias, including three major incidences in 2017. I consider that if he were to return to Pakistan, the applicant would choose to reside in either Parachinar, Peshawar or Islamabad. After considering the cumulative effect of his personal and tribal characteristics, I am satisfied that the applicant faces a real chance of being targeted (in the sense that it is a greater than remote chance) on account of his Shia religion, his imputed (anti-Taliban) political opinion due to belonging to Turi tribal ethnicity and his education in the west, his father’s Turi elder profile and his own profile (given that I accept that he would undertake Shia community project involvement on return to Pakistan.)
  2. I find that the applicant faces a real chance of serious harm at the hands of the Taliban or other extremists as a result of his Shia religious identity and/or imputed political opinion based on his father’s profile as well as an anti-Taliban political opinion imputed to him because he is Shia (and Turi) if he returns to his former home areas or tribal regions of Peshawar, Islamabad or Kurram Agency. I am satisfied that should the applicant return to his homes in Peshawar, Islamabad or to his tribal region in Kurram Agency now or in the reasonably foreseeable future, there is a real chance he will face ‘serious harm’ from the TTP or other militant groups as required by s.5J(4)(b) of the Act in that it involves threat to his life or liberty or significant physical harassment or ill-treatment.
  3. I have therefore gone on to consider if effective protection measures are available to the applicant in any of those prospective areas where he faces persecution as required by s.5LA.
  4. Country information indicates a general willingness by the Pakistani authorities to protect Shias, for example during Moharram (a one month mourning period) law enforcement authorities provide security for participants.[12] As well, and more broadly, the Pakistani authorities continue to implement counter terrorism strategies across the country to protect civilians, including measures introduced to curb violence across the country under the 2015 NAP, which was established in January of that year to reduce terrorism, such as strengthened powers for military and paramilitary security forces.[13] In 2015 and 2016 Operation Zarb-e-Azb continued and the Pakistani army was actively present in tribal areas, targeting a wide array of militant groups. The government announced a country wide military operation – Radd-ul-Fasaad - in February 2017, regarded as a continuation of the NAP.[14]
  5. However, DFAT and the UK Home Office (among others) also assess that state protection in Pakistan is limited by resource shortages and, in some cases, political will. DFAT state that the effectiveness of individual police forces in each province and the challenges they face vary. Overall police capacity in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors and the judiciary. Credible sources in Pakistan told DFAT that there is a widespread perception across the community of high levels of police corruption[15]. An auxiliary military force, called the Frontier Corps, operate in Khyber Pakhtunkhwa and the FATA.[16]
  6. With respect to state protection, UNHCR in their recent guidelines on Pakistan state:
The government has been criticized for failing to protect Shi’ite Muslims from attacks, and for allowing militant organizations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan. Despite efforts by regional authorities to provide additional security measures for Shi’ites in some situations, the security situation for Shi’ites has reportedly not improved. Balochistan’s civilian law enforcement authorities reportedly expressed a “helplessness and inability to deal with the issue of extremist attacks and sectarian militancy”. Even where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites. Shi’ite individuals have held large protests to demand better protection and security from the authorities.[17]
  1. Given these considerations, and the ineffectiveness of military and State authorities to stem ongoing targeting of Shias in Kurram Agency and parts of Khyber Pakhtunkhwa, the Tribunal is not satisfied that the State of Pakistan is able to offer effective protection measures to the applicant in any of his home areas provided by the state, party or organisation. The Tribunal therefore finds that the applicant faces a well-founded fear of persecution in Peshawar, Kurram Agency and also in Islamabad.
  2. The Tribunal has gone on to consider if the applicant faces a real chance of persecution in all areas of Pakistan as required by s.5J(1)(c).
  3. In her written submission, the applicant’s representative made the following submissions to support the contention that the applicant’s fear of persecution is well founded in all areas of Pakistan:
  4. Whilst acknowledging the information which clearly demonstrates that sectarian attacks continue to occur throughout the country, I do not accept that the independent country information supports a conclusion that there is a real chance that a Shia without a prominent profile would necessarily have a real chance of serious harm in all areas of Pakistan, as required. However, the whole of the applicant’s circumstances must be taken into account. Outside his home area, he will have no tribal or family support. I do accept that the applicant’s Turi ethnicity, his name and his accent would potentially draw attention to him, even in Shia communities elsewhere in Pakistan, further increasing his vulnerability to being targeted. The simple act of renting a house or applying for a job may alert Sunni community members of his background, regardless of where he resides. The country information clearly reflects that anti-Shia extremists operate throughout Pakistan. I am also satisfied that Shia community members who have a high profile within their communities could reasonably be considered to face a higher than remote chance of being targeted throughout the country. I have found that the applicant (because of his background and personal characteristics, his father’s prominent history, his own expectations on return of contributing to the Shia community, and the perception of his persecutors with regard his education and political opinion) would have a high profile within any Shia community in which he were to reside. I find that in this case the real chance of persecution exists in all areas of Pakistan.
  5. In reaching this conclusion the Tribunal has had regard to UNHCR’s most recent advice that attacks against Shias have been reported in all parts of the country; that anti-Shia hate speech reportedly permeates all sectors of society; and that extremist groups are reported to have publically called for the killing of Shia individuals, and have used methods to instil fear and force them to flee. The UNHCR also relevantly state that:
Given the wide geographic reach of some armed militant groups (as evidenced by high-profile attacks, particularly in urban centres), a viable IFA/IRA will generally not be available to individuals at risk of being targeted by such groups. Furthermore, some non-State agents of persecution, such as local powerbrokers, organized criminal elements, as well as armed militant groups, reportedly have links to or are closely associated with influential actors in the local and central administration, law enforcement and/or judiciary. As a result, they often operate with impunity and their reach may extend beyond the area(s) under their immediate control.[18]
  1. For these reasons the Tribunal is satisfied that the applicant faces a real chance of persecution in all areas of Pakistan as required by s.5J(1)(c).
  2. The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. The Tribunal finds in this case that the applicant’s fear of serious harm is for reason of his imputed political opinion and accepts that he would be unable, in the foreseeable future, to change that perception. Further, his Turi tribal background and his faith are fundamental and immutable characteristics which he is unable to or is not expected to ‘modify’. I find that the applicant is unable to take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Pakistan.
  3. Accordingly and for reasons above, the Tribunal finds that the applicant faces a real chance of persecution for reasons of his Shia religion, his membership of the particular social groups of a Turi tribesman from the Kurram Agency, a person educated in a Western Country and because of his imputed political opinion if he returns to Pakistan, now or in the reasonably foreseeable future.
  4. For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s.5J of the Act. In accordance with s.5H(1)(a) of the Act, the Tribunal is satisfied that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, is unwilling to avail himself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
  5. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

  1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.


Anne Grant
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.
...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

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

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

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...


[1] Departmental file, folio 30
[2] DFAT Country Information Report Pakistan, 1 September 2017 at 2.33
[3] DFAT Country Information Report Pakistan, 1 September 2017 at 3.42–3.46
[4] For example from the European Asylum Support Office (EASO), EASO Country of Origin Information Report: Pakistan Security Situation, July 2016, http://www.refworld.org/docid/55e061f24.html
[5] Ibid at 3.62
[6] DFAT Country Information Report Pakistan, 1 September 2017 at 3.64 and 3.65
[7] FATA Research Centre (FRC), FATA Annual Security Report 2017, pp 1 & 4, http://frc.org.pk/wp-content/uploads/2018/01/Final-Security-Report-2017-Uploooo.pdf
[8] FATA Research Centre (FRC), FATA Annual Security Report 2017, pp 5 & 6, http://frc.org.pk/wp-content/uploads/2018/01/Final-Security-Report-2017-Uploooo.pdf

[9] Department of Home Affairs “Common Claims in Pakistan” 18 October 2018.
[10] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, pp 55, 57 & 58 (footnotes omitted), http://www.refworld.org/docid/5857ed0e4.html.
[11] DFAT Country Information Report Pakistan, 1 September 2017 at 3.21 and 3.24.
[12] DFAT Country Information Report Pakistan, 1 September 2017 at 3.46
[13] Ibid at 5.1 and 5.2
[14] EASO Country of Origin Information Report, Pakistan Security Situation, August 2017, p 16
[15] Ibid at 5.5
[16] EASO Country of Origin Information Report: Pakistan Security Situation, August 2017 at 5.3–5.6
[17] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, pp 55, 57 & 58 (footnotes omitted), http://www.refworld.org/docid/5857ed0e4.html
[18] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, p 66 (footnotes omitted), http://www.refworld.org/docid/5857ed0e4.html

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