1405312 (Refugee)

[2015] AATA 3768

1405312 (Refugee) [2015] AATA 3768 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1405312

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Giles Short

DATE:19 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 19 November 2015 at 6:31pm

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

INTRODUCTION

1. [The applicant] is a citizen of Pakistan.  He has said that he comes from [Town 1] in the Kurram Agency, that he belongs to the [Tribe 2] and that he is a Shia Muslim.  He has said that in 2009 he and his family moved to Wah Cantt (Wah Cantonment) because of the general security situation in the Kurram Agency and that he lived there until he left Pakistan in June 2012.  He has said that he was not able to obtain work in Wah Cantonment, that Sunni people from [Town 1] who had moved to Rawalpindi and Islamabad left threatening letters at his family’s home and that he feared harm from these Sunni people if he stayed in Wah Cantonment.

2. In a submission to the Tribunal dated 28 May 2015 [the applicant’s] representatives submitted that he would face serious harm from the Tehrik-e-Taliban Pakistan (TTP) or other extremist Sunni groups in Pakistan for reasons of his Shia religion, his [Ethnicity 4], his imputed political opinion in opposition to the Taliban (on account of his religion, his ethnicity, his origins from the Kurram Agency, a region with a long-standing violent conflict with the Taliban, and his extended presence as an asylum-seeker in Australia, a western country with a Christian heritage) and his membership of the particular social groups of ‘Shi’a [Ethnicity 4] from Kurram Agency’ and ‘Returned failed asylum seekers from a Western country’.  They submitted that [the applicant] not only feared direct targeted serious harm from Sunni extremist groups including the TTP but also the discriminatory withholding of protection for a Convention reason of the kind referred to by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. Further and in the alternative they submitted that there was a real risk that [the applicant] would suffer significant harm if he returned to Pakistan.

3. [The applicant’s] application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Pakistan and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Pakistan?

   [The applicant’s] claims

4. [The applicant] is aged in his mid-[age].  He has said that his parents and his [siblings] are still living in a rented house in Wah Cantonment.  He has said that [another sibling] remained in [Town 1] when the family moved to Wah Cantonment in 2009 because [that sibling] is married and [stayed] there with [the spouse’s family].  He has said that [that] family are living in a house in [a location] in [Town 1] owned by his father.  [The applicant] said in the statutory declaration accompanying his application for a protection visa that he had grown up in [a] Village, around [distance] from [Town 1], but he said at the hearing before me that he had moved to [Town 1] when he had been [age] years old and that he had attended school there.  He said that he and his family had lived in the house in [a location] in [Town 1] owned by his father.  He said that he had completed [grade] in 2006 or 2007 and that after that he had worked in his [relative’s] shop in the [a specified location] in the [Town 1 location] for one and a half to two years before his family had left [Town 1].

5. In the statutory declaration accompanying his application for a protection visa [the applicant] said that in 2009 there had been an explosion around [metres] from his [relative’s] shop.  He said that he had been at home at the time and that the shop had not been badly damaged but that around [number] people had been killed.  He said that his father had decided that it was no longer safe for them to stay in [Town 1] and that they should leave the area.  As referred to above, he has said that they moved to Wah Cantonment.  He has said that he was unable to obtain employment there and that he did not undertake any further study but that his [siblings] were able to go to school there.

6. In the statutory declaration accompanying his application for a protection visa [the applicant] said that some Sunni people who came from [Town 1] had moved to live in ‘Pindi (Rawalpindi) and that he had been scared when he had seen them.  He said that he had heard from friends and he had seen on the news that a lot of Shia people had been being kidnapped and beheaded in Rawalpindi and Peshawar.  He said that he had not wanted to stay in Pakistan because he had feared that he would be kidnapped and killed.  At the entry interview he likewise said that he had feared being abducted and killed by the Taliban or other extremist Sunni groups because he was a Shia Muslim.

7. When he was interviewed by the primary decision-maker in relation to his application [the applicant] said that nothing had happened to him but there had been instances of kidnapping and insecurity.  He said that he had not been going outside his home for fear of being kidnapped, harmed or even killed by these Sunni people because they had been trying to get revenge for their close relatives or family members whom they had lost in the fighting.  He said that he feared that he would be targeted because he was a Shia Muslim and because he used to live in the Kurram Agency.  He said that the main source of threat to him was the Taliban and their followers who were targeting and doing lots of bomb blasts and kidnapping and killing but there were many other groups as well.  After a break to consult his representative [the applicant] said that the situation had become worse in 2010 and 2011, once the Sunni people had moved into the area.  He said that they had been sending threatening letters to the Shia houses saying that they were going to kidnap them or harm them.  He said that he had been worried a lot so he had been very careful and he had mostly stayed at home.

8. [The applicant] has said that after he moved to Wah Cantonment he returned to [Town 1] once to obtain his National Identity Card which was issued there [in] 2010.  He has also said that he had to make two trips to [another location] to obtain his passport which was issued there [in] 2012.  He has said that he left Pakistan legally from the airport in Lahore [in] June 2012.  He has said that at the time he made his application for a protection visa in 2012 his father was living and working in [another country] but that his father moved back to Pakistan in around the middle of 2013 and is living with the rest of his family in Wah Cantonment.  At the hearing before me he said that since his father had returned to Pakistan he had been engaged in [a business] in Wah Cantonment.

9. In a submission to the Department dated 18 October 2013 [the applicant’s] representatives submitted that the nature of the conflict in the Kurram Agency was based on issues of religion, tribal conflict and extremist Taliban/Sunni beliefs which affected [the applicant] not only in the Kurram Agency but throughout the country.  They referred to information dating from between 2009 and 2012 in relation to the situation in the Kurram Agency.  They also submitted, without referring to any evidence, that the security situation was worsening in North West Pakistan and in Pakistan generally and that this was likely to get even more dangerous for Shia in the near future which they submitted was evident from the increasing number of reported attacks on Shia.

10. In their submission to the Tribunal dated 28 May 2015 [the applicant’s] representatives quoted passages from a variety of sources relating to sectarian violence and militant and terrorist activity throughout Pakistan.  Although they quoted the paragraph from the DFAT Thematic Report - Shias in Pakistan (14 April 2015) referring to the improved security situation in the Kurram Agency they submitted that this information, as well as [the applicant’s] personal experiences of attacks by the Taliban, supported the conclusion that his fear of persecution was well-founded.

11. At the hearing before me [the applicant] produced a document headed ‘Current Terrorist News’ (see folio 115 of the Tribunal’s file 1405312) which referred to the fact that a Shia cleric from Parachinar, [named], had been killed in Islamabad in November 2014, and to incidents in Sindh, Peshawar, Rawalpindi and Karachi in which Shias had been killed and injured.  It also referred to the South Asia Terrorism Portal’s ‘Pakistan Assessment 2015’ which said that, according to partial data, out of 226 civilian fatalities in the year to 22 February 2015, at least 105 Shia Muslims had been killed in terrorist attacks and that this number had increased dramatically in 2015 after a sharp decline in 2014.[1]  The document produced by [the applicant] suggested that this meant that Shia Muslims were being targeted when they were going to the mosque to pray or when they were going to work.

    Discussion of [the applicant’s] claims

    [1] South Asia Terrorism Portal, ‘Pakistan Assessment 2015’, 9 October 2015, CXBD6A0DE14381.

12. At the hearing before me I asked [the applicant] why his family had decided to leave [Town 1] in 2009.  He said that the war had started in 2007 and the situation had been very bad.  They had had problems with medicine and food and other problems.  I noted that he had said that these problems had started in 2007 but he and his family had not left until 2009.  [The applicant] said that they had moved when the situation had improved a little.  I asked him why they had had to move at all if the situation had improved.  [The applicant] said that the situation in the Kurram Agency was up and down.  I indicated to him that I was trying to understand why he and his family had decided to leave and to move to Wah Cantonment in 2009.  [The applicant] said that they had wanted to improve their lives and to get better security and safety.  He confirmed that they had moved because of the general security situation.

13. I put to [the applicant] that in the statutory declaration accompanying his application for a protection visa he had referred to a bomb explosion.  [The applicant] said that the security situation included the bombing and killing and everything.  I put to him that he had said that this bomb explosion had taken place [metres] from his [relative’s] shop.  [The applicant] said that there had been such a bomb explosion in 2009.  I put to him that I had not been able to find any reference to a bomb explosion in the [specific location] or anywhere near [that location] in 2009.  [The applicant] said that the media did not cover some incidents.  I put to him that he had said that [number] people had been killed in this incident so I thought that the media would have covered it.  [The applicant] said that maybe the media had covered this but they had not put in the detail.

14. I put to [the applicant] that there had been large bomb explosions in [that specific location] or in the vicinity of [that location] in 2007 and 2008.[2]  I put to him that he had said that he had left in 2009.  [The applicant] said that it had been in January or February 2009.  I put to him again that I had not been able to find any reference to the incident which he had claimed had prompted him and his family to leave.  [The applicant] said that he did not know what to say.  I put to him that if he had been working in his [relative’s] shop in the [location] I thought that he would know about the incident which had happened in February 2008, for example, in which at least [number] people had been killed and [number] people had been injured.[3]  I put to him that the problem which I had was that (according to his evidence) this incident had not prompted him and his family to leave [Town 1]: he had said that he had gone on working in his [relative’s] shop in the [location] for another year.  [The applicant] said that at that time the road had been blocked so they had not been able to leave.  I asked him if he was saying that the road had not been blocked in 2009.  He repeated that when the situation had been a little bit improved they had moved out.  I asked him if he had had any particular problems himself personally with the Taliban and he said that he had not.

    [2] [Source deleted].

    [3] [Source deleted].

15. I asked [the applicant] why he had decided to leave Pakistan in 2012.  He said that the situation from 2009 to 2011 had been OK but that from 2011 to 2012 the situation had become unsafe for them because the Sunnis from [Town 1] had moved to Rawalpindi and Islamabad.  He said that he had been scared of them.  I asked him if the Sunnis had actually caused any problems for him.  He said that they had not but if he had stayed a bit longer they would have created a problem for him.  After I put to him that he had told me that his parents and his [siblings] were all still living in Wah Cantonment he said that they could not leave the house because these people were living in the surrounding area.  He subsequently conceded that his father had to leave the house for the purpose of his [business] and he said later in the hearing that his [siblings] were still attending school in Wah Cantonment.

16. [The applicant] claimed that two or three or four weeks before the hearing his father had been chased or followed by people and that his father had had to run.  He said that when you were out they could do anything to you.  He said that they were just looking for an opportunity.  Prompted by his representative he claimed that his father had been stabbed with a knife one or two kilometres from their home.  He said that this had happened two or three days after the incident in which he claimed his father had been chased and that his father had had to go to hospital.  I put to him that he was saying that his father had been conducting this [business] for three years and he had had no problems but then suddenly, two or three weeks before the hearing, he had been stabbed.  [The applicant] said that his father had not been much involved in this job before but in 2015 he had become more involved in this business and he had been more out and about.

17. Prompted by his representative again [the applicant] said that he had only found out about what he claimed had happened to his father two or three days before the hearing.  He said that when he called home they did not tell him if they were facing any difficulties or problems.  He said that they had told him about his father being stabbed because he had kept asking them about the current situation.  I asked him if, so far as he was aware, this was the only incident in which any form of physical harm had happened to his family.  [The applicant] said that when he called home they did not tell him everything.  He confirmed that he did not claim that they had told him that anything had happened apart from this incident.

18. I asked [the applicant] if he himself had suffered any form of physical harm before he had left Pakistan.  He said that he had never been attacked or stabbed but they had received threatening letters.  He said that the Sunnis who had been living in the surrounding area had sent these letters saying that they would harm them in whichever way they could.  He confirmed that this had been when he himself had still been in Pakistan.  He said that these letters had just been dropped there during the night, next to the door inside the house.  He said that he knew that these letters had been from the Sunni people because they had said that their people had been killed, their houses had been destroyed and they had suffered so they would kill them, they would destroy their house and they would suffer.  He said that his family had had no issues with the Punjabi people in the area.  He said that these letters had definitely been from Sunni people from [Town 1] who had left their houses and their lands and who had been seeking revenge.

19. [The applicant] said that he had only picked up one or two of these letters.  He said that he did not know if any other member of the family had picked up such letters.  I put to him that I found it very difficult to believe that this would not have been mentioned, given that he claimed that these letters had threatened to harm his family.  [The applicant] said that his family had not talked about these matters because they did not have education by which he explained he meant that they could not read.  He confirmed that nothing had actually happened to him or to his family before he had left Pakistan and that the only thing which had happened since he had left Pakistan was that two or three weeks before the hearing his father had been stabbed.

20. I put to [the applicant] that he was saying that these letters which he had said his family had been receiving before he had left Pakistan in 2012 had been making threats.  I put to him that his evidence suggested that no one had been interested in carrying out these threats.  [The applicant] said that they paid more attention to the main person.  I put to him that I would have thought that his father would have been the main person.  [The applicant] said that at that time his father had not been there.  He confirmed that his father had returned from working overseas in 2013 and that since then his father had been living with his family in Wah Cantonment.  [The applicant] said that they had moved to another address in Wah Cantonment and they had not known his family’s new address.  I put to him that they had remained in Wah Cantonment despite supposedly receiving these threatening letters.  [The applicant] said that it had not been that close: they had moved from one colony to another colony within Wah Cantonment.

21. I referred to the fact that [the applicant] had said that he had worked and had attended school in the town of [Town 1] and that his [other sibling] still lived there in the house in [a location] which his father still owned.  I put to him that I might consider it appropriate to treat [Town 1] as his ‘home area’, meaning that I would consider first whether he could go back and live in [Town 1].  I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had said that a 2013 truce in the Kurram Agency was still in place as of November 2014 and that the main [road] was open and was frequently used by civilian cars.  It had said that the Federal security forces maintained armed checkpoints on the road and that this had resulted in an improved security situation in the Kurram Agency.[4]  I put to him that a UNHCR mission to Kurram in April 2014 had likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram.[5]

    [4] [Source deleted].

    [5] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.

1. I put to [the applicant] that the FATA Research Centre had said in its Annual Security Report 2014 that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014 and that a total of two incidents, one bomb blast and one target killing, had been recorded during the year, killing three people and injuring one person.  The bomb blast had been a roadside bomb and the killing had been of a tribal elder on his way to the Sadda Bazaar.[6]  I put to [the applicant] that in its quarterly report for the second quarter this year (April to June 2015) the FATA Research Centre had said that the Kurram Agency remained relatively stable and that only three security incidents had been reported.  It had said that one of these incidents had been a clash between militants and the security forces in the Tor Toot area resulting in the death of two militants, another had been a land mine blast in the Pewar area in which one member of the security forces had been injured and the third had been an attempted suicide bomb attack in Alizai in which both suicide bombers had been killed while two or three other people had been injured.[7]

   [6] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, page 46.

   [7] FATA Research Centre, Security Report: Second Quarter April-June 2015, 1 September 2015, CISEC96CF13551, pages 15-16.

2. I put to [the applicant] that he had said that he himself had not had any problems with the Taliban in [Town 1].  He had said that he had left [Town 1] in 2009 because of the general security situation.  I put to him that the improvement in the security situation was clearly relevant to his situation.  I referred to his evidence that after his family had moved to Wah Cantonment they had received threatening letters from Sunni people.  I put to him that I had some difficulty in accepting that he was telling the truth about this.  I put to him that although he had said that these letters had made threats he had also said that no attempt had been made to carry out those threats.  I put to him that when I had asked him about any particular problems which his family had been having he had said that his father was unable to go out of the house.  He had then conceded that his father was able to go out of the house and that indeed his father had to go out of the house to conduct his [business].  He had said that his father had been followed on one occasion, three or four weeks before the hearing, but he had only mentioned that he claimed that his father had been stabbed after his representative had prompted him to mention this.  I put to him that in the statutory declaration accompanying his application for a protection visa he had made no mention of the threatening letters which he had claimed his family had been receiving.

3. I put to [the applicant] that, as we had discussed, throughout this time his [other sibling] had been living in [Town 1].  I put to him that I might not accept on the evidence before me that there was a real chance that he would be persecuted because he was a Shia [Tribe 2 member] from the Kurram Agency if he went back to [Town 1].   I put to him that I might not accept that there was a real chance that he would be persecuted because of any political opinion which he might be perceived as holding opposed to the Taliban or other extremist Sunni groups if he went back to [Town 1].  I put to him that I might also not accept that there was a real risk that he would suffer significant harm if he went back to his home in [Town 1].  [The applicant] said that the situation there was that one month was good and one month was bad: it was not stable.  He said that the Taliban stayed in the mountains in the Kurram Agency.  He said that they could attack or they could plant bombs at any time.  I put to [the applicant] again that the information to which I had referred suggested that the situation in the Kurram Agency was relatively stable.  [The applicant] said that it might last one or two years but then again there would be these issues.

4. I noted that [the applicant’s] representatives had also referred to the fact that he would be returning to Pakistan from a western country.  I put to him that the Australian Department of Foreign Affairs and Trade had advised that western influence remained pervasive in many parts of Pakistan.  It had said that many Pakistanis had relatives living in western countries, that those living abroad frequently returned to Pakistan to visit their relatives and that these people were not at any increased risk because they had spent time in western countries.  I put to [the applicant] that the Department assessed that there was no evidence that indicated that individuals would be subject to discrimination or violence as a result of them having spent time in western countries.[8]  I put to [the applicant] that I might not accept that there was a real chance or a real risk that he would be harmed because he would be returning from a western country or specifically from a western country with a Christian heritage like Australia.

   [8] DFAT Country Report - Pakistan, 14 April 2015, paragraph 3.63.

5. [The applicant] said that if he returned from here he would be in the same situation because living there was very difficult.  He said that his father was looking for an opportunity to move out of the country.  I put to him again that I found it difficult to accept that what he had claimed had happened to his father had in fact happened to him.  [The applicant] said that this had happened.  I put to him that he had said that it had happened in Wah Cantonment and that I would have thought that if his family had been having any problems in Wah Cantonment they would have moved back to [Town 1] by now.  [The applicant] said that they were not going back there.  He said that his [siblings] were going to school in Wah Cantonment and that the education there was better than in the Kurram Agency.

6. I noted that [the applicant’s] representatives had also referred to the fact that he would be returning to Pakistan as a failed asylum-seeker.  I put to him that the Australian Department of Foreign Affairs and Trade had advised that failed asylum-seekers might be questioned on their return to Pakistan to determine if they were wanted for crimes in Pakistan.  However it had said that asylum-seekers like himself who had left on valid travel documents had not committed immigration offences.  I put to him that the Department had said that it was not aware of any credible reports that returnees had been punished by the authorities on their return to Pakistan.[9]  I put to [the applicant] that I might not accept that there was a real chance or a real risk that he would be harmed because he would be returning to Pakistan as a failed asylum-seeker from Australia.  [The applicant] said that he had no comments to make on this information.  I gave [the applicant’s] representative time after the hearing to make further written submissions.

   Post-hearing submission

   [9] DFAT Country Report - Pakistan, 14 April 2015, paragraphs 5.21, 5.22, 5.23.

7. In a further submission dated 27 October 2015 [the applicant’s] representatives referred to the fact that according to UNHCR no IDPs had returned to the Kurram Agency in the first three months of 2015.  They submitted that Shias from [Ethnicity 4] and [Tribe 2] tribes continued to face a real risk of serious harm in [Town 1].  In support of this submission they referred to a previous truce in 2011 which had failed and they quoted from a decision of the Tribunal (differently constituted), [file number deleted], in which the Tribunal said, based on the information available at that time, that attempts by the Pakistani authorities to bring about some form of temporary ceasefire in the Kurram Agency had so far failed.  They submitted that the reports of attacks throughout 2014 and 2015 to which they had referred in their previous submission indicated that the current truce had not been effective in securing safety for Shias in the Kurram Agency but they referred to no attacks on Shia Muslims in the Kurram Agency in 2014 and 2015 in their previous submission.

8. [The applicant’s] representatives drew attention to the fact that the Australian Department of Foreign Affairs and Trade had said in paragraph 4.37 of the DFAT Thematic Report - Shias in Pakistan (14 April 2015) that the situation in the FATA remained volatile due to ongoing counterinsurgency operations by the Pakistani security services.  However that paragraph refers to the FATA as a whole which includes places like North Waziristan where, as referred to in paragraph 4.34 of the report, the Pakistani security services are conducting counterinsurgency operations against the TTP and other militants.  It does not undercut the advice of the Department that there is an improved security situation in the Kurram Agency.

9. [The applicant’s] representatives quoted two paragraphs from a decision of the Tribunal (differently constituted), [file number deleted], which referred to various incidents, the most recent being in June 2014, in which people (not necessarily Shias or from either [Ethnicity 4] or [Tribe 2] tribes) had been injured or killed in the Kurram Agency and concluded that the conflict in Kurram Agency was ongoing and that acts of violence continued to be perpetrated against Shias in the region.  However the decision noted that the FATA Research Centre had said in its quarterly report for the period April to June 2014 that the Kurram Agency had been stable over the reporting period and that compared with the previous two quarters there had been signs of improvement.

10. With regard to the situation on the [main] road, [the applicant’s] representatives submitted that road travel continued to be highly dangerous for Shias but in support of this submission they quoted three paragraphs from another decision of the Tribunal (differently constituted), [file number deleted], in which the Tribunal said that, based on the information available at that time, the [road] had frequently been closed because of attacks by militants.  The decision referred to an incident which occurred in [2014] in Peshawar in which a passenger van travelling to [Town 1] was attacked but it is not clear whether the van was specifically targeted or whether this was a random terrorist bombing.[10]  The decision also referred to an incident in [2014] in which a [van] was destroyed when an IED planted on the roadside exploded, killing [number people] while injuring others, but this incident occurred in [another village] in [Town 1], not on the road [from Town 1].[11]

    [10] [Source deleted].

    [11] [Source deleted].

11. [The applicant’s] representatives also submitted that fatalities had risen again in 2015 but in support of this submission they quoted from the South Asia Terrorism Portal’s ‘FATA Assessment 2015’ which refers to civilian fatalities across the whole of the FATA to March 2015 and reflects the fact that, as stated in the assessment, there are ongoing military operations in North Waziristan and the Khyber Agency.  They submitted that this assessment and the South Asia Terrorism Portal’s ‘Pakistan Assessment 2015’ made it clear that sectarian attacks on Shia civilians continued to occur as revenge for counterinsurgency operations undertaken by the security forces but the passages which they quoted suggest that only one attack on Shia Muslims was carried out for reasons of revenge and then not because of counterinsurgency operations but because of the hanging of a convicted terrorist, Dr Usman.  [The applicant’s] representatives submitted that the TTP and other extremist groups remained powerful, that they were actively targeting Shia civilians and that, in the context of a protracted and brutal conflict, a decline in civilian casualties in 2014 should not be relied upon for the conclusion that [the applicant] would no longer face a real chance of persecution.

12. [The applicant’s] representatives submitted that the country information was conclusive that the conflict in the Kurram Agency was ongoing and that extremist groups continued to target civilians with the profile of [the applicant] for reasons of their Shia religion and [Tribe 2] or [Ethnicity 4].  They also referred to the ‘real chance’ test and they submitted that, even if the Tribunal found that [the applicant] had not been at risk of serious harm at the time when he had left Pakistan, there was now a real chance of serious harm should he return.

    Conclusions

13. As referred to above, when I asked [the applicant] why his family had decided to leave [Town 1] in 2009 he initially confirmed that it had been because of the general security situation.  After I put to him that he had said in the statutory declaration accompanying his application for a protection visa that they had decided to leave because of a bomb explosion [metres] from his [relative’s] shop he said that there had been such a bomb explosion in 2009.  As I put to him, I have been unable to find any reference to a bomb explosion in the [specified location] or anywhere near [that location] in 2009 and, given that he claims that [number] people were killed in this incident, I consider that it would have been reported.  As I put to him, there were large bomb explosions in the [specified location] or in the vicinity of [location] in 2007 and 2008[12] but he has said that he went on working in his [relative’s] shop in the [location] for around another year after the second of these incidents.  [The applicant] said that they had not been able to leave at that time because the road had been blocked and he said that when the situation had been a little bit improved they had moved out.  However in the absence of any independent evidence that such a bomb explosion happened I do not accept on the evidence before me that [the applicant] and his family decided to leave [Town 1] in January or February 2009 because of a bomb explosion [metres] from his [relative’s] shop in the [specified location] as he has claimed.

    [12] [Source deleted].

14. As I likewise put to [the applicant], I have difficulty in accepting that he is telling the truth about the threatening letters which he claims were dropped at his home in Wah Cantonment.  As I put to him, he made no mention of these threatening letters in the statutory declaration accompanying his application for a protection visa.  As referred to above he said that some Sunni people who came originally from [Town 1] had moved to live in Rawalpindi and that he had feared being kidnapped and killed but he made no mention of having received threatening letters from these people.  He referred in passing to these threatening letters when he was intervewed by the primary decision-maker and at the hearing before me he said that he had only picked up one or two of them.  He said that he did not know if any other member of the family had picked up such letters.  After I put to him that I found this difficult to accept he said that they had not talked about these matters because they could not read.  This clearly cannot be true of his [siblings] who he has said are attending school in Wah Cantonment and even if it were true of his mother and [other sibling] I consider it reasonable to assume that if they had found such letters they would have taken them to someone like [the applicant] who could read them.

15. [The applicant] said at the hearing before me that they paid more attention to the main person but, as I put to him, I would think that his father would have been the main person after his father returned from overseas.  [The applicant] suggested that the Sunni people had not known where they were living because they had changed adddess, moving from one colony to another colony within Wah Cantonment, but he has said that after his father returned from overseas his father was engaged in [a business] so I find it difficult to accept that the Sunni people would not have been able to locate him and his family if, as [the applicant] claims, they wanted to seek revenge for the Sunni people who had been killed and for their houses which had been destroyed in [Town 1].

16. As referred to above, [the applicant] claimed at the hearing before me that two or three or four weeks before the hearing his father had been followed or chased and that two or three days after this his father had been stabbed.  As I put to him, I find it difficult to accept that his father would have had no problems while conducting his [business] for three years but then suddenly, two or three or four weeks before the hearing, his father would have been stabbed.  As referred to above, [the applicant] said that when he called home they did not tell him everything and that they had only told him about this incident two or three days before the hearing.  However, after I suggested that if his family were having the problems he claimed in Wah Cantonment they would have moved back to [Town 1] by now, he said that they were not going back there because the education was better in Wah Cantonment than in the Kurram Agency.  Having given careful consideration to all of the evidence before me I do not accept that [the applicant] is telling the truth about the problems which he claims he and his family have experienced while living in Wah Cantonment.  I do not accept that he or his family received threatening letters while he was in Pakistan nor that, shortly before the hearing before me, his father was chased or followed and then stabbed two or three days later, as he claimed at the hearing before me.  I do not accept that he or his family have ever been threatened by Sunnis from [Town 1] as he has claimed.

17. As I put to [the applicant], given that he has said that he worked and attended school in the town of [Town 1] and that his [other sibling] still lives there in the house in [a location] which his father still owns, I consider it appropriate to treat [Town 1] as his ‘home area’ and to consider first whether he can go back there to live.  As I put to him, the Australian Department of Foreign Affairs and Trade said in April 2015 that a 2013 truce in the Kurram Agency was still in place as of November 2014 and that the main [road] was open and was frequently used by civilian cars.  It said that the Federal security forces maintained armed checkpoints on the road and that this had resulted in an improved security situation in the Kurram Agency.[13]  As I also put to him, a UNHCR mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram.[14]

    [13] [Source deleted].

    [14] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.

18. [The applicant] said that the situation there was that one month was good and one month was bad: it was not stable.  He said that the current situation might last one or two years but then again there would be these issues.  In their post-hearing submission his representatives questioned the durability of the truce, referring to earlier attempts to bring about some form of temporary ceasefire which had broken down.  They submitted that the reports of attacks throughout 2014 and 2015 to which they had referred in their previous submission indicated that the current truce had not been effective in securing safety for Shias in the Kurram Agency but as mentioned above they referred to no attacks on Shia Muslims in the Kurram Agency in 2014 and 2015 in their previous submission.  In their post-hearing submission they quoted two paragraphs from a decision of the Tribunal (differently constituted), [file number deleted], which referred to various incidents, the most recent being in June 2014, in which people (not necessarily Shias) had been injured or killed in the Kurram Agency and concluded that the conflict in Kurram Agency was ongoing and that acts of violence continued to be perpetrated against Shias in the region.  However the decision in question noted that the FATA Research Centre had said in its quarterly report for the period April to June 2014 that the Kurram Agency had been stable over the reporting period and that compared with the previous two quarters there had been signs of improvement.

1. As I put to [the applicant], the FATA Research Centre said in its Annual Security Report 2014 that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014 and that a total of two incidents, one bomb blast and one target killing, had been recorded during the year, killing three people and injuring one person.  The bomb blast was a roadside bomb and the killing was of a tribal elder on his way to the Sadda Bazaar.[15]  As I likewise put to [the applicant], in its quarterly report for the second quarter this year (April to June 2015) the FATA Research Centre said that the Kurram Agency remained relatively stable and that only three security incidents had been reported.  It said that one of these incidents was a clash between militants and the security forces in the Tor Toot area resulting in the death of two militants, another was a land mine blast in the Pewar area in which one member of the security forces was injured and the third was an attempted suicide bomb attack in Alizai in which both suicide bombers were killed while two or three other people were injured.[16]

   [15] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, page 46.

   [16] FATA Research Centre, Security Report: Second Quarter April-June 2015, 1 September 2015, CISEC96CF13551, pages 15-16.

2. In a recent submission to the Tribunal in relation to another case involving an applicant from the Kurram Agency [the applicant’s] representatives referred to [a report] which they submitted provided a troubling update on the situation in [Town 1].  However the report refers to only six security incidents in the entire quarter.  While, as the report notes, this was double the level of the security incidents in the previous quarter, it is still very low.  The report stated that the six incidents were an IED attack which destroyed a school in the Sarka area of Central Kurram, a clash between the security forces and militants in Spar Kot and Tora Warai in Central Kurram in which one member of the security forces was injured and 11 militants were killed, two target killings in Lower Kurram in which four civilians were killed, a precision air strike in Central Kurram in which five militants were killed, and search operations in the Bagan area in which militants and members of the TTP were arrested and an IED was recovered.  While, as [the applicant’s] representatives noted, the report said that there were 19 more casualties than in the previous quarter, it is relevant that 16 of these casualties were militants killed by the security forces.[17]

   [17] FATA Research Centre, Security Report: Third Quarter July-September 2015, 1 October 2015, CISEC96CF13746, pages 15-16.

3. [The applicant’s] representatives submitted that this report suggested that any improvements in the security situation were temporary but, as I put to [the applicant] in the course of the hearing before me, I consider that the evidence to which I referred suggests that the situation in the Kurram Agency is relatively stable.  I consider that the evidence upon which the decisions to which [the applicant’s] representatives referred in their post-hearing submission were based has been overtaken by more recent evidence.  [The applicant’s] representatives referred in their post-hearing submission to the fact that no IDPs had returned to the Kurram Agency in the first three months of 2015 but I do not consider that this undercuts what was said in the report of the UNHCR mission to which I referred.  There may be many reasons why no IDPs returned to the Kurram Agency in the first three months of 2015 but the fact remains that the UNHCR report said that it was evident that general peace had been restored in Upper and Lower Kurram and that it was safe for people to return to certain parts of the Kurram Agency.  [The applicant’s] representatives also referred to the South Asia Terrorism Portal’s ‘FATA Assessment 2015’ and ‘Pakistan Assessment 2015’ but, as stated above, the figure on which they based their submission that fatalities had risen again in 2015 (drawn from the South Asia Terrorism Portal’s ‘FATA Assessment 2015’) refers to civilian fatalities across the whole of the FATA to March 2015 and reflects the fact that, as stated in the assessment, there are ongoing military operations in North Waziristan and the Khyber Agency.  I do not accept that the material which they quoted casts doubt on the durability of the improvement in the security situation in the Kurram Agency.

4. In their submission dated 28 May 2015 [the applicant’s] representatives referred to his personal experiences of attacks by the Taliban but for the reasons given above I do not accept that he and his family decided to leave [Town 1] in January or February 2009 because of a bomb explosion [metres] from his [relative’s] shop in the [specified location] as he has claimed nor that he or any other member of his family has been threatened by Sunni people from [Town 1] as he has claimed nor that his father was stabbed shortly before the hearing before me.  At the hearing before me [the applicant] said that he had not had any particular problems himself personally with the Taliban.  I do not accept that there is a real chance that he will be singled out or targeted on an individual basis by Sunni people from [Town 1], the Taliban or other Sunni extremist groups if he returns to his home in [Town 1] now or in the reasonably foreseeable future.

5. In their submission dated 28 May 2015 [the applicant’s] representatives submitted that he not only feared direct targeted serious harm from Sunni extremist groups including the TTP but also the discriminatory withholding of protection for a Convention reason of the kind referred to by the High Court in Khawar, cited above.  For the reasons given above I do not accept that he faces a real chance of direct targeted harm from anyone but I also do not accept on the evidence before me that there is such a discriminatory withholding of protection for a Convention reason in relation to Shia Muslims or Shia [Tribe 2] in the Kurram Agency in particular.  To the contrary, as I put to [the applicant], the Australian Department of Foreign Affairs and Trade has said that the improvement in the security situation in the Kurram Agency is due in no small part to the efforts of the Federal security forces[18] and this is borne out by the reports of the FATA Research Centre which refer to continued operations by the security forces to combat militants in the Kurram Agency.[19]

   [18] See the DFAT Thematic Report - Shias in Pakistan, 14 April 2015, paragraph 4.35.

   [19] See FATA Research Centre, Security Report: Second Quarter April-June 2015, 1 September 2015, CISEC96CF13551, pages 15-16; FATA Research Centre, Security Report: Third Quarter July-September 2015, 1 October 2015, CISEC96CF13746, pages 15-16.

6. [The applicant] has also referred to the road out of [Town 1] having been blocked in the past but, as I put to him, the Australian Department of Foreign Affairs and Trade has said that the main [road] is open and is frequently used by civilian cars.[20]  In their post-hearing submission dated 27 October 2015 [the applicant’s] representatives submitted that road travel continued to be highly dangerous for Shias but in support of this submission they quoted three paragraphs from another decision of the Tribunal (differently constituted), [file number deleted], in which the Tribunal said that, based on the information available at that time, the [road] had frequently been closed because of attacks by militants.  As I have indicated above, I consider that the evidence upon which this decision was based has been overtaken by the more recent evidence to which I have referred above.

   [20] [Source deleted].

7. I accept that a Shia cleric from Parachinar, [named], was killed in Islamabad in November 2014 as referred to in the document which [the applicant] produced at the beginning of the hearing but I do not consider that this reflects on the general security situation in the Kurram Agency.  I accept that, as referred to in that document, Shia Muslims continue to be killed in terrorist incidents in Pakistan but, as I put to [the applicant], I consider it appropriate to assess his situation on the basis that he will return to [Town 1].  [The applicant] said that the Taliban stayed in the mountains in the Kurram Agency and that they could attack or they could plant bombs at any time.  I accept that, as referred to in the reports of the FATA Research Centre, there continue to be occasional clashes between militants and the security forces in the Kurram Agency and that there are occasional incidents in which civilians are killed or injured.  However, I consider on the basis of the evidence before me that there has been a significant improvement in the security situation in the Kurram Agency and that this is a durable improvement.  I do not accept on the evidence before me that there is a real chance that [the applicant] will be persecuted (whether by the Taliban, other Sunni extremist groups or Sunni people from [Town 1]) because he is a Shia [Tribe 2] from the Kurram Agency or because of any political opinion which he may be perceived as holding opposed to the Taliban or other extremist Sunni groups if he returns to his home in [Town 1] including while travelling on the road in and out of [Town 1].

8. [The applicant’s] representatives also referred in their submission dated 28 May 2015 to the fact that he would be returning to Pakistan from a western country.  However, as I put to him, the Australian Department of Foreign Affairs and Trade has advised that western influence remains pervasive in many parts of Pakistan.  It has said that many Pakistanis have relatives living in western countries, that those living abroad frequently return to Pakistan to visit their relatives and that these people are not at any increased risk because they have spent time in western countries.  As I put to [the applicant], the Department assesses that there is no evidence that indicates that individuals will be subject to discrimination or violence as a result of them having spent time in western countries.[21]  Having regard to the Department’s assessment I do not accept that there is a real chance that [the applicant] will be persecuted because he will be returning from a western country or specifically from a western country with a Christian heritage like Australia (as submitted by his representatives) if he returns to Pakistan now or in the reasonably foreseeable future.

   [21] DFAT Country Report - Pakistan, 14 April 2015, paragraph 3.63.

9. [The applicant’s] representatives also referred in their submission dated 28 May 2015 to the fact that he would be returning to Pakistan as a failed asylum-seeker.  As I put to him, the Australian Department of Foreign Affairs and Trade has advised that failed asylum-seekers may be questioned on their return to Pakistan to determine if they are wanted for crimes in Pakistan but it said that asylum-seekers like himself who left on valid travel documents had not committed immigration offences.  As I put to him, the Department said that it was not aware of any credible reports that returnees had been punished by the authorities on their return to Pakistan.[22]  Having regard to the advice of the Australian Department of Foreign Affairs and Trade I do not accept that there is a real chance that [the applicant] will be persecuted because he will be returning to Pakistan as a failed asylum-seeker from Australia.

   [22] DFAT Country Report - Pakistan, 14 April 2015, paragraphs 5.21, 5.22, 5.23.

10. [The applicant] has consistently claimed that he belongs to the [Tribe 2] tribe and he confirmed this at the hearing before me.  I do not accept therefore, that, as submitted by his representatives, he fears being persecuted for reasons of his [Ethnicity 4] or his membership of the particular social group of ‘Shia [Ethnicity 4] from Kurram Agency’.  For the reasons given above I do not accept that there is a real chance that, if he returns to what I have found to be his home in [Town 1] now or in the reasonably foreseeable future, he will be persecuted for reasons of his race ([Tribe 2]), his religion (Shia), his imputed political opinion in opposition to the Taliban and/or other extremist Sunni groups (on account of his race, his religion, his origins from the Kurram Agency, a region with a long-standing violent conflict with the Taliban, and his extended presence as an asylum-seeker in Australia, a western country with a Christian heritage) or his membership of the particular social groups of ‘Shia [Tribe 2] from Kurram Agency’ or ‘Returned failed asylum seekers from a Western country’.  I have considered the totality of [the applicant’s] circumstances as a Shia [Tribe 2] from the Kurram Agency who has spent an extended period as an asylum-seeker in Australia.  However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.

    Are there 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 he will suffer significant harm?

11. Having regard to my findings of fact above I do not accept that there are 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 he will suffer significant harm at the hands of the Taliban, other Sunni extremist groups or Sunni people from [Town 1].  Having regard to the assessment of the Australian Department of Foreign Affairs and Trade referred to in paragraph 47 above, I do not accept that there are 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 he will suffer significant harm because he will be returning from a western country or specifically from a western country with a Christian heritage like Australia (as submitted by his representatives).  I accept that he will be returning to Pakistan as a failed asylum-seeker but, having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 48 above, I do not accept that there are 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 he will suffer significant harm because he will be returning to Pakistan as a failed asylum-seeker from Australia.

12. I have considered the totality of [the applicant’s] circumstances as a Shia [Tribe 2] from the Kurram Agency who has spent an extended period as an asylum-seeker in Australia. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are 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 he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

    CONCLUSIONS

13. For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.

    DECISION

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

    Giles Short
    Senior Member

    
    

    ATTACHMENT A - RELEVANT LAW

15. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

    ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

    Refugee criterion

16. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.  Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

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

17. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

18. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

    (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.

1. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

   ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

2. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

   ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

3. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

4. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

   ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

5. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

   ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

   Complementary protection criterion

6. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

7. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment 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.

   Credibility

8. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

   ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

9. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

   ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

10. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.