1407574 (Refugee)

1407574 (Refugee) [2016] AATA 4890 (10 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1407574
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Giles Short
DATE:10 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 January 2016 at 6:59pm

CATCHWORDS
Refugee – Protection visa – Membership of particular social groups –Pashtun – Member of the Turi tribe – ‘Educated Shia Muslims’ – Established library to help school children – Fears mistreatment and being killed by the Taliban – Threat letters addressed to someone with a different name – Wealthy family – Failed asylum seeker from the west – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
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

[The applicant] is a citizen of Pakistan. He has said that he is a Shia Muslim and a Pashtun member of the Turi tribe and that he comes from Parachinar in the Kurram Agency. He has said that he was briefly a member of the Imamia Students Organisation (ISO) while studying at college and that he and three friends established a library where they gave extra tuition to school children. He has said that as a result they received a warning letter from the Taliban in around October 2007 but that they reopened the library in around February 2008 and had no further problems. He has said that in September 2011 his paternal uncle who was a [health professional] was transferred to a hospital in [Town 1] but that shortly after starting his duties there he received a warning letter from the Taliban. He has said that his uncle was transferred back to [Hospital 1] in Parachinar and that his uncle continues to work there. He has said that on [date] January 2012 one of his friends was killed in a suicide bomb attack in Parachinar and as a result of this his family decided he should leave Pakistan.
In a statutory declaration accompanying his application for a protection visa [the applicant] said that he feared that if he returned to Pakistan he would be abused, harmed, mistreated or killed by the Taliban or other anti-Shia organisations. He said that this would happen because of his religion as a Shia Muslim, his political opinion as an active member of the ISO and a founding member of a Shia religious library in Parachinar, his imputed political opinion in opposition to the Taliban because he was a member of the Turi tribe and his membership of a particular social group, Turi tribe members. In a submission to the Tribunal dated 14 May 2015 [the applicant]’s representatives submitted that he feared that he would be imputed with a political opinion against the Taliban ‘and its associate groups’ due to his Shia religion, his membership of the Turi tribe, his active involvement in the library which he had continued despite the threatening letter from the Taliban, his involvement in the ISO in 2007 and 2008, his relationship with his uncle who had also received a threatening letter from the Taliban and his previous employment at his family’s [store]. They also submitted that he feared harm for reasons of his membership of two particular social groups, ‘Shias from Parachinar’ and ‘Educated Shia Muslims’.
[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
[The applicant] is [age years old]. He has said that he completed his Higher Secondary School Certificate (Year 12) [in] Parachinar in [year] and that he then completed a two year Bachelor [degree] studying at the same college between [year] and [year]. He has said that he also worked part-time in his family’s [store] in Parachinar until he left Pakistan in June 2012. At the time he made his application he said that his father [owned] this [store] in partnership with his father’s [brother], [Mr A], who was also [a health professional] at [Hospital 1] in Parachinar. At the hearing before me in October 2015 he said that his parents and his [siblings] were all still living in Parachinar and that he was in contact with them once in a week or two weeks or three weeks. He said that his father and his uncle had dissolved their partnership ten months or a year before the hearing and that they were both now running separate [stores] in Parachinar. He said that his father’s business had decreased. He said that his uncle was still [a health professional] at [Hospital 1] in Parachinar.
In his statutory declaration accompanying his application for a protection visa [the applicant] said that his grandfather [had] been the Malik (senior elder) of the village where he had been born, that besides owning [a] store in Parachinar his family were also wealthy landowners and that they were well-known and well-respected in the area. At the hearing before me [the applicant] said that his grandfather had passed away one and a half years before he himself had left Pakistan and that the government had selected someone else from some other family to succeed his grandfather as the Malik.
At the hearing before me [the applicant] confirmed that he was a Shia Muslim. He said that in Parachinar he had prayed five times a day, he had usually attended the mosque for evening prayer and he had celebrated Ashura and other important days. After I asked him if he had had any difficulties practising his religion he said that the Taliban had watched the mosque from a distance to see who attended the mosque for prayers. He said that the Taliban had known who he was by which he said that he meant that when he had attended the mosque other people had been able to see him going to the mosque. He said that in Australia he was praying five times a day and he was taking part in the celebrations at Muharram and Ashura. He said that he sometimes attended a mosque. He said that he had taken part in the most recent celebration of Ashura in [Australia].
In their submission to the Tribunal dated 14 May 2015 [the applicant]’s representatives said that he had joined the ISO in about May or June 2007, that he had attended ISO meetings at least once a week and that he had also assisted with organising additional gatherings and processions for religious events. They said that he had no longer been actively involved with the ISO after around August 2008. They produced a copy of a letter dated [April] 2009 saying that [the applicant] had been an active member of the ISO in Parachinar ‘for the session 2007 to 2008’. At the hearing before me he said that as a member of the ISO he had participated in their activities. He said that he had been involved in organising seminars for the young children. He said that for each event they had had to book some hall and he had been involved in the booking process and also in organising and managing the tables and chairs for the participants and he had been there to help and support those running the event.
[The applicant] said that he had ceased his involvement in the ISO when he had started studying for his Bachelor degree and he had not had enough time to participate in the ISO. He said that his family had heard that there were some activities against the ISO so they had not allowed him to continue his involvement and he had been scared of getting involved with them. He said that his family had been afraid of the Sunni Muslim people and the Taliban and they had thought that if these people saw that he was actively involved in the ISO they would punish him. His family had thought that if these people targeted the ISO they might make some suicide attack and it would be dangerous for him. He said that when the ISO organised some event everyone would know that there would be a lot of people at that event and these people would target it. I asked him if any event organised by the ISO in Parachinar had ever been targeted in this way. [The applicant] said that at that time there had been no direct attacks on these events in Parachinar but there had been some sort of kidnapping of young students and some letters warning that their events would be attacked.
In their submission to the Tribunal dated 14 May 2015 [the applicant]’s representatives said that he and his three friends had started their library in about August 2007. In his statutory declaration [the applicant] described this as a religious library which had offered religious tuition, books and newspapers. He said that they had opened this library as a means to support Shia religious development and education. In their submission to the Tribunal dated 14 May 2015 [the applicant]’s representatives said that the library had offered school tuition, books and newspapers but they also said that [the applicant] and his friends had explained the meanings of religious texts to attendees. At the hearing before me [the applicant] said that the library had been in [library’s location deleted]. He said that they had run some sort of extra tuition classes for students in their school studies and they had also had some newspapers and magazines. He said that [details deleted]. He said that they had had school books on [a range of topics]. After I noted that he had described the library as a religious library he said that they had had religious literature but their main focus had been on the children’s school studies.
I put to [the applicant] that he had said that he and his friends had offered religious tuition. [The applicant] said that it had been both religious and school studies but he repeated that their focus had been on supporting young children who had been experiencing some difficulties in their school studies. I put to [the applicant] that his representatives had said in their submission to the Tribunal that he and his friends had explained the meaning of religious texts to people attending the library. [The applicant] said that there had been three other people there and some of them had worked with young children and some with teenagers. He said that if they had needed extra support they had ordered religious books for them. He repeated that they had helped young children with their school studies. He said that they had had a notice board at the mosque on which they had advertised religious days and they had also cut out job advertisements from the newspaper and had put them on this notice board for people to see and read. He said that people who came to pray at the mosque had seen this board and if they had needed some work they had seen these advertisements.
In his statutory declaration [the applicant] said that in around October 2007 the library had been burned down by the Taliban. At the hearing before me he explained that what had actually happened had been that they had broken some windows and doors and burned a few of the books, not all of the books, and they had left a warning letter. He said that this had just been to show them that, if they did not stop, ‘we will come’. Under cover of their submission to the Tribunal dated 14 April 2015 [the applicant]’s representatives produced what they said was a copy of the warning letter left by the Taliban, dated [October] 2007, together with a translation. According to the translation the letter is addressed to someone called [the applicant’s Alias 1] and threatens to kidnap his whole family and to behead him if he continues ‘the conduct of infidels’. At the hearing before me [the applicant] said that this letter had been left in the room which had housed the library.
At the hearing before me [the applicant] said that in around February 2008 he and his three friends had reopened the library in the same [location]. He said that at this time the Taliban had left Parachinar. He said that he had continued his involvement with the library until he had left Pakistan. He said that when they had reopened the library they had not been as active as before because they had been scared of the Taliban. He said that he had been unable to go out of Parachinar because he had been afraid of the Taliban. I noted that the library had been in Parachinar. [The applicant] confirmed that the Taliban had not been present in Parachinar for the entire time before he had left Pakistan. He said that they had been in the mountains and they had sometimes made some guerrilla attacks.
In his statutory declaration accompanying his application for a protection visa [the applicant] said that in or around November 2007 there had been an incident in [an] area of Parachinar when the Taliban had thrown a grenade and approximately two people had been killed. He said that when he had travelled to Peshawar to obtain his passport which was issued in [date] 2011 he travelled via Afghanistan because of the dangers on the road to Peshawar. He said that while in Peshawar he had been followed by four members of the Taliban but he had managed to escape. At the hearing before me [the applicant] said that on the second day he had been in Peshawar when he had gone to the market – [he] had noticed some people who knew him from Parachinar. He said that these people had recognised and had followed him for quite some time. He said that when he had got to a crowded area he had run away and had escaped. He said that these people had been followers of the Taliban when they had been in Parachinar. He said that he meant that they had worked for the Taliban but he said that he had only concluded that they worked for the Taliban because they had followed him.
[The applicant] said that they had looked like Taliban because they had had long beards and because of the clothes they had been wearing. After I put to him that this would describe a lot of the people in Peshawar and that it did not mean that these people had been members of the Taliban he agreed that there had been a lot of people with the same appearance. He repeated that he had concluded that these people had belonged to the Taliban because he had believed that they were following him. He added that when he had started running they had started running too. He said that he had thought they maybe they would kidnap him and he had therefore believed that they belonged to the Taliban. I put to [the applicant] that the way he was describing this suggested that it had all been in his mind. All that appeared to have happened was that he had seen some people in the market whom he had thought he recognised. [The applicant] said that they had recognised each other because these people had been in Parachinar. He repeated that when they had followed him he had thought that they were the Taliban.
[The applicant] said that had obtained his passport in [date] 2011 because his family had wanted him to go somewhere overseas to complete his studies. He said that his family had not allowed him to go to some other city in Pakistan because of the threat from the Taliban. I asked him if he had applied to go overseas to any other country to study. [The applicant] said that it had been difficult from Parachinar because he would have had to go to offices or agencies in Peshawar or Lahore or Karachi and he had been unable to go there. He confirmed that he had never actually made an application to study overseas: he had just obtained a passport.
In his statutory declaration [the applicant] said that in around September 2011 his uncle [Mr A] had been transferred to a hospital in [Town 1] but shortly after starting his duties there a letter had been left for him by the Taliban saying that he was to stop working for the hospital and that his services were required to assist the Taliban. [The applicant] said that the Taliban had also requested money to support their cause. He said that after receiving this letter his uncle had transferred back to [Hospital 1] in Parachinar. Under cover of their submission to the Tribunal dated 14 April 2015 [the applicant]’s representatives produced what they said was a copy of the threatening letter left by the Taliban for his uncle, dated [September] 2007, together with a translation. According to the translation the letter refers to [the applicant]’s uncle as [Occupation 1], not a [health professional], it does not tell him to cease working at the hospital but it threatens to kill him and his whole family if he does not cooperate with them in treating their injured fighters and by assisting them with money.
As referred to above, [the applicant] has said that the catalyst for him leaving Pakistan was the fact that one of his friends was killed in a suicide bomb attack in Parachinar on [date] January 2012. His representatives said in their submission dated 14 April 2015 that it had not been until April 2012 that [the applicant] had engaged an agent in Islamabad to assist him to depart Pakistan. [The applicant] has said that he left Pakistan legally [in] June 2012, travelling on his own passport.
In their submission to the Tribunal dated 14 April 2015 [the applicant]’s representatives submitted that he feared that if he returned to Pakistan he would be subjected to serious harm from Sunni militia groups and other Sunni extremists due to his Shia Muslim religion. They quoted from the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan (14 May 2012), a briefing published by Minority Rights Group International, ‘Everything has shattered’ – rising levels of violence against Shi’a in Pakistan (11 June 2014), the US State Department International Religious Freedom Report for 2013 in relation to Pakistan and the ‘Pakistan Assessment 2015’ published by the South Asia Terrorism Portal. They also quoted from the superseded DFAT Country Information Report - Pakistan (29 November 2013) and DFAT Thematic Report - Shias in Pakistan (18 December 2013). They submitted that this information showed that sectarian violence continued to be prevalent in the Kurram Agency and that sectarian violence was not limited to the North-West region of Pakistan.
In relation to their submission that [the applicant] would be targeted due to his previous employment at his family’s [store] his representatives referred to general information about the Tehrik-e-Taliban Pakistan (TTP) and to the fact that Amnesty International had said in its Report 2014-15 in relation to Pakistan that health workers involved in polio and other vaccination campaigns had been killed in various parts of the country. They also submitted that ‘reports indicate that the ultra-violent Islamic State have strong foundations within the Pakistani Taliban’ but the source which they identified refers to a former Taliban commander, Hafiz Saeed Khan, having pledged allegiance to the leader of Islamic State.

In relation to their submission that [the applicant] feared harm for reasons of his membership of two particular social groups, ‘Shias from Parachinar’ and ‘Educated Shia Muslims’, his representatives quoted two media reports dating from December 2011 and September 2014 which they submitted showed that Shias from the Kurram Agency had received threats after relocating to Islamabad. They referred to a claim made in a paper in January 2009, sourced to a book published in 2004, to the effect that Shia doctors, lawyers and other professionals were gunned down by hit squads who wanted to cleanse Pakistan of its highly educated Shia minority, to a media release issued by an Iranian organisation, the ‘Islamic World Peace Forum’, in February 2014 which said that Shia intellectuals and professionals had become the targets of assassination attempts in Pakistan and that extremists were apparently trying to intimidate educated Shias into leaving the country and to the attack on the Army Public School in Peshawar in December 2014 which was not an attack on educated Shia Muslims but rather an attack on Pakistan’s military establishment, claimed to be in reprisal for the Pakistani army’s military offensive against militants in North Waziristan.[1] [The applicant]’s representatives submitted that this information showed that professionals, academics and students were targeted for reason of their education.
[1] See ‘Taliban go on killing spree at Pakistan school, 132 students dead’, Reuters, 16 December 2014, CX1B9ECAB8858; ‘Peshawar school attack: Backlash against Pakistan Taliban’, BBC News, 16 December 2014, CX1B9ECAB8823.
In relation to complementary protection [the applicant]’s representatives referred to the relevant law and they submitted that the country information supported a finding that there was a real risk that the applicant would face significant harm, specifically torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, but they did not identify the information which they submitted supported this finding. In a further submission dated 23 October 2015 [the applicant]’s representatives quoted from more recent reports relating to sectarian violence in Pakistan and in particular attacks on Shia places of worship and religious leaders.
Discussion of [the applicant]’s claims
At the hearing before me I put to [the applicant] that, according to the translation which his representatives had produced, the letter which he had said the Taliban had left at the library referred to the head of the library as [the applicant’s Alias 1]. [The applicant] said that in his region they did not use people’s complete names, they just mentioned their first [name]. He said that everyone called him [by his first name], not [by the applicant’s name]. I put to him that the letter did not call him [by his first name]: it said [the applicant’s Alias 1] which was not his name. [The applicant] said that they had not known if he was [applicant’s name] or [the applicant’s Alias 1]. He said that [Surname 1] was not his father’s name. I put to him that [Surname 1] was his father’s name according to his application. [The applicant] said that these people had not known this. I asked him if he was saying that they had not known who he was and they had not known his father’s name even though he had said that his father was a well-known and well-respected person. [The applicant] said that they had only known his first name and they had not cared about his second name. He repeated that it was usual in his region only to use one name. I put to him again that the letter used two names. [The applicant] said that they had not known his correct name so they had just guessed.
I put to him that the other letter from the Taliban which he had produced was addressed to [Mr A] according to the translation but according to him his uncle was a [health professional], not [Occupation 1]. [The applicant] said that in his region if someone working in a [certain profession] they called them [Occupation 1]. He said that his uncle had had two jobs: as a [health professional] and in the shop selling [goods]. I put to [the applicant] that he had said that the shop had been in Parachinar but he had said that the letter had been left for his uncle at the hospital in [Town 1] after his uncle had been relocated there. However it did not refer to him as a [health professional] at the hospital. [The applicant] said that his uncle had been a well-known [health professional] and therefore they had asked for his uncle’s assistance in treating the injured Taliban. I asked [the applicant] why the Taliban would have addressed the letter to his uncle as [Occupation 1] if his uncle had been a well-known [health professional]. [The applicant] said that they were not educated people and they did not understand the difference between [Occupation 1] and a [health professional].
I referred to the fact that the letter had threatened that his uncle and his whole family would be killed. I put to him that he had told me that his uncle was still in Parachinar. [The applicant] referred to his evidence that his uncle had been transferred back to Parachinar after he had received the threatening letter. I put to him that the problem was that he had produced two threatening letters from the Taliban, one of which had supposedly threatened to kill him if he did not close his library. He had said that in response to this he had reopened the library and he had had no problems as a result of reopening the library. [The applicant] repeated that the Taliban had left Parachinar. I put to him that the second letter was addressed to his uncle and said that he should work for the Taliban or that he should give money to the Taliban. I put to him that once again his evidence was that his uncle had not complied with these demands and that he had continued living in Parachinar but nothing had happened to him. [The applicant] said that there was security provided by the government for the hospital in Parachinar and his uncle felt safe there.
I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had said that document fraud was regularly found in Pakistan.[2] [The applicant] said that it was possible to make false documents in big cities but in rural areas the equipment was not available to make false documents. He said that these documents were original and they had their own stamp. I put to him that there was no stamp on the letters. [The applicant] indicated that he was referring to the letterhead. I put to him that this could be produced on any printer. [The applicant] agreed that this letterhead had been made by a printer but he said that the original letters were handwritten. I put to him that this meant that anyone could have written these letters who could write Pashto. [The applicant] said that the Taliban’s Pashto writing was different by which he said he meant that there was some grammar or some words that were different. He also referred to the Taliban having a different accent. I put to him that their accent was not relevant to a written letter. [The applicant] said that usually when someone wrote something they wrote it in the same manner it was pronounced, with the same accent. I put to [the applicant] that I might not accept that the three letters which his representatives had produced to the Tribunal were genuine. [The applicant] said that it had not been difficult for the Taliban to make these warning letters.
[2] DFAT Country Report - Pakistan, 14 April 2015, paragraph 5.45.
I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had issued new reports in relation to Pakistan on 14 April 2015 and that the Tribunal was required to take such reports into account where relevant. I put to him that the Department had advised that the 2013 truce in the Kurram Agency was still in place as of November 2014. It had advised that the main road from Thal to Parachinar 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.[3] I put to him that UNHCR had also conducted a mission to Kurram in April 2014 and it had concluded that it was evident that general peace had been restored in both Upper and Lower Kurram.[4]
[3] See the DFAT Thematic Report - Shias in Pakistan, 14 April 2015, paragraph 4.35.
[4] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.
I put to [the applicant] that the FATA Research Centre had said in its Annual Security Report 2014 that the Kurram Agency had remained comparatively quiet in 2014 and that a total of two incidents, one bomb blast and one target killing, had been recorded during that period, killing three people and injuring one person.[5] I put to him that in its quarterly report for the second quarter, that is from April to June 2015, it had said that the Kurram Agency had remained relatively stable and that only three security incidents had been reported during that period. 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 [Town 1].[6]
[5] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, page 46.
[6] [Source deleted].
I put to [the applicant] that, having regard to the information available to me about the general security situation in Parachinar, I might assess his application on the basis that he would return to his home in Parachinar. I put to him that he had told me earlier in the hearing that all his family were still living in Parachinar and that his father was still running the [store]. [The applicant] said that, as he had mentioned earlier, business was not as good as before. He said that one of his brothers had gone to [overseas] and since then they had not heard anything from him. I put to him that I had asked him at the beginning of the hearing and he had told me that all his family were still living in Parachinar. [The applicant] said that he had thought that he would share this information at the end of the hearing. I asked him if there was anything else which he had thought that he would leave until the end of the hearing to tell me. [The applicant] said that one other thing was that his uncle who was a [health professional] had also left Parachinar and he was now living [overseas].
I put to [the applicant] that I might not accept on the evidence before me that there was a real chance that he would be persecuted because he had worked in his family’s [store] or because of his relationship with his uncle who was a [health professional] at the hospital if he returned to Parachinar. [The applicant] referred to his evidence that his father and his uncle had dissolved their partnership and he said that his father only had a small shop which was not running well. He said that if he went and worked with his father it would be difficult for them to work together in this small shop. He said that there were no other work opportunities available for him in Parachinar. He suggested that the stability of the situation in Parachinar was temporary. He said that usually the situation got better for two or three months and then it got worse again. He said that the other big issue was that now he had lived for some time in a western country, Australia, and ordinary people and the Taliban did not like people who had lived in western countries. He said that if he returned to his country they would kill him for having gone to a western country. He said that since 2007 the situation there had not been stable: sometimes it had got worse and sometimes when the government had done some operation it had got better and then it had got worse again.
I put to [the applicant] that I might not accept on the basis of the same information which we had discussed that there was a real chance that he would be persecuted because he was an educated Shia Muslim from Parachinar or because he was a member of the Turi tribe if he went back to Parachinar. [The applicant] said that Parachinar was a small city and there was not a lot of opportunity for him to find work so if he returned to Parachinar there would be no work for him and if he went somewhere else to find some work opportunities there was a threat from the Taliban. He added that he had not left Pakistan because of a lack of work opportunities. He said that the main reason had been his safety and the danger for his well-being. He said that if he returned there he would definitely be killed. He said that especially at the moment if he returned from Australia he would be targeted by the Taliban because people who had tried to escape to western countries were not safe.
I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had advised that western influence remained pervasive in many parts of Pakistan. I put to him that the Department had said that many Pakistanis had relatives living in western countries and that those living abroad frequently returned to Pakistan to visit their relatives. I put to him that the Department had advised that those people were not at any increased risk because they had spent time in western countries. I put to him that the Department assessed that there was no evidence to indicate that individuals would be subject to discrimination or violence as a result of them having spent time in western countries.[7] [The applicant] said that his region was different from other parts of Pakistan. He said that if people from Parachinar went to western countries and then returned they would easily be recognised by Sunni people and the Taliban and it would be dangerous for them.
[7] DFAT Country Report - Pakistan, 14 April 2015, paragraph 3.63.
I put to [the applicant] that on the basis of the information we had discussed there was not a real chance that he would be persecuted by the Taliban or associated groups if he went back to Parachinar. [The applicant] said that there were a lot of incidents and instability over there which was not broadcast in the media so no one knew about it. He said that he understood and heard about these incidents and what was going on over there. He said that the government tried to censor the reporting of these sorts of incidents in the media. I put to [the applicant] that, as I had tried to indicate to him by referring to reports from three different sources, there appeared to be very comprehensive reporting of what was happening in the Kurram Agency and this extended to quite minor incidents like the landmine blast in which one member of the security forces had been injured. [The applicant] suggested that this had been reported because a member of the security forces had been injured. He said that a lot of ordinary people were killed there every day and no one mentioned about them.
I put to him that the reports did mention ordinary people: they mentioned, for example, that a tribal elder had been killed on his way to the Sadda Bazaar.[8] [The applicant] said that if this person had been an ordinary person no one would have mentioned about it. He said that the government discriminated against Parachinar people. I put to him that the reports to which I had referred were not from the Government of Pakistan. [The applicant] said that they collected information from the media. I put to him that the UNHCR mission had actually visited the Kurram Agency. [The applicant] said that he understood that the UNHCR officers were also accompanied by government officials. He said that it would be not be safe for them to be alone to collect this information. He said that the government had not taken them to the part which was not good for the government. I put to [the applicant] that I might not accept that UNHCR would have been encouraging people to return to their homes in the Kurram Agency if it were not safe. [The applicant] said that in general there would be some safety but his understanding was that it would not be safe for a person from Parachinar like him who had tried to escape and to seek asylum in a western country. He said that he would be targeted.
[8] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, page 46.
I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had also provided advice in relation to the situation of failed asylum-seekers. [The applicant] said that his understanding was that the Government of Pakistan had a policy to keep one region safe and stable for some time and after that they had their own agenda and strategy to make it worse again. He said that the stability would only be for a limited time, not forever, and it would change soon. I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had advised that failed asylum-seekers like himself who had left Pakistan on valid travel documents had not committed immigration offences in Pakistan. It had said that it was not aware of any credible reports that failed asylum-seekers returning to Pakistan had been punished by the authorities on their return to Pakistan.[9] [The applicant] said that he had not heard of anyone who had left on a valid passport ever returning to Parachinar. He said that if someone returned he would definitely be killed.
Post-hearing submissions
[9] DFAT Country Report - Pakistan, 14 April 2015, paragraphs 5.21, 5.22, 5.23.
In a further submission dated 13 November 2015 [the applicant]’s representative referred (with regard to the fact that the letter in relation to the library was addressed to [the applicant’s Alias 1]) to [the applicant]’s evidence that surnames were not regularly used in his region and she submitted that for this reason it was unlikely that the Taliban would have been aware that his surname was [Surname 1]. She submitted that as [Surname 2] was a common Shia surname it was likely that the Taliban would have assumed that this was his surname.
[The applicant]’s representative submitted that, although he and his friends had reopened their library only months after receiving the letter from the Taliban, the Taliban had had less of a presence in Parachinar after 2007 and he and his friends had significantly scaled back their activities in an attempt to ensure that they did not come to the attention of the Taliban again. With regard to the fact that the letter from the Taliban to [the applicant]’s uncle referred to him as [Occupation 1], [The applicant]’s representative submitted that his uncle had been well-known for the [store] which he had run with [the applicant]’s father and she submitted that it was plausible that the Taliban would have referred to his known position rather than the position which he had only been in for a short period. She submitted that the letter had not been addressed to [the applicant]’s uncle at [Town 1] Hospital. However it is [the applicant]’s evidence that the letter was left for his uncle at [Town 1] Hospital (see paragraph 19 of his statutory declaration accompanying his application for a protection visa). [The applicant]’s representative referred to [the applicant]’s evidence that after receiving this letter his uncle had returned to Parachinar but the fact remains that, despite the Taliban having threatened to kill his uncle and his whole family if his uncle refused to cooperate with the Taliban, [the applicant]’s uncle remains in Parachinar and [the applicant] has not suggested than any harm has befallen his uncle.
With regard to the situation in Parachinar [the applicant]’s representative 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 there was a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas and 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.

[The applicant]’s representative referred to a media report dated 2 November 2015 stating that mortar shells fired from Afghanistan had landed in Parachinar but that luckily they had not caused any injuries. She submitted that as the security situation in Afghanistan deteriorated there would be direct implications for Parachinar as the city provided direct access for Taliban members into Afghanistan. She also referred to a media report dated 5 November 2015 relating to foiled terrorist attacks in Parachinar in recent weeks. She submitted that the Tribunal should find that [the applicant] faced a real chance of being persecuted should he return to Parachinar.
In a further submission dated 17 December 2015 [the applicant]’s representative referred to the fact that on 13 December 2015 at least 25 people had been killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar.[10] She referred to the fact that a Sunni extremist group, the Lashkar-e-Jhangvi, had claimed responsibility for the attack, linking it to Shia Muslims fighting in Syria in support of the regime of President Bashar al-Assad[11] and threatening more attacks of a similar nature. [The applicant]’s representative submitted that this most recent attack was indicative of the increasing tensions in Parachinar and supported [the applicant]’s fear that current insecurity in the region would lead to further sectarian violence.
Conclusions
[10] Mehdi Hussain, ‘Burying their dead: Parachinar blast victims laid to rest’, The Express Tribune (Pakistan), 15 December 2015, CXBD6A0DE16980.
[11] Reuters had reported a few days previously that a unit of Shia Pakistani fighters, some from Parachinar, was in Syria, having been recruited by Iran to fight for President Bashar al-Assad against the mostly Sunni rebel forces: see Babak Dehghanpisheh, ‘Iran recruits Pakistani Shi’ites for combat in Syria’, Reuters, 10 December 2015, CXBD6A0DE16867.
I accept that [the applicant] is a Shia Muslim and a member of the Turi tribe, that his family are wealthy landowners, that following the dissolution of their partnership both his father and his uncle own [stores], that his uncle is also [a health professional] at [Hospital 1] in Parachinar and that his family are well-known and well-respected in the area. I accept that [the applicant] was a member of the ISO from around May or June 2007 until around August 2008. I find on the basis of his evidence that his involvement was only at a low level, booking halls and organising table and chairs. I accept that he ceased his involvement in the ISO when he started studying for his Bachelor degree because he did not have enough time to participate in the ISO. At the hearing before me he said that his family had also not allowed him to continue his involvement because they had thought that there might be an attack on an event organised by the ISO but he conceded that there had not in fact been any attacks on events organised by the ISO in Parachinar.
I do not accept that the library which [the applicant] established with three friends in 2007 was a religious library or that he and his friends offered religious tuition as he and his representatives suggested. I consider it clear from his description of the activities in which he and his three friends were involved that they were engaged in providing extra tuition to school children. I likewise consider it clear that the library was not burnt down by the Taliban as he claimed in his statutory declaration. [The applicant] himself said at the hearing before me that the library had been housed in [the same location] and that all that had happened had been that they had broken some windows and doors and had burned a few of the books, not all of the books, and they had left a warning letter. He has produced what he has said is the warning letter but, as I put to him, it is addressed to [the applicant’s Alias 1], not [applicant’s name]. [The applicant] has said that in his region they only used first names and he suggested that the Taliban must just have guessed his second name. His representatives have submitted that [Surname 2] is a common Shia surname and that the Taliban would have assumed that this was his surname. However, as I put to him, he has said that his family is well-known and well-respected in the area, that his grandfather was [name, that his father is [name] and that his paternal uncle is [Mr A]. I do not accept that the Taliban would therefore have had to guess [the applicant]’s surname.
I also consider it relevant that [the applicant] has said that he and his three friends reopened this library in around February 2008, only about four months after he claims that they received the warning letter from the Taliban telling them to stop their activities or the Taliban would kill them. [The applicant] has said by way of explanation that the Taliban had left Parachinar at the time but he has said that they remained in the mountains and that they sometimes made guerrilla attacks. Even if, therefore, there was a fire at the library which he and his three friends had established, I do not accept that it was caused by the Taliban, nor do I accept that he and his three friends feared that they would be targeted by the Taliban after they reopened the library. I consider that if they had genuinely feared the Taliban they would not have reopened the library.
[The applicant] has also claimed that he was followed by four members of the Taliban when he went to Peshawar to get his passport which was issued in [date] 2011. As I put to him, from the way he described this incident I consider that it was all in his mind. He initially said that he believed that these four people had been members of the Taliban because of their beards and the way they were dressed but he agreed that there would have been a lot of people in Peshawar of the same appearance. He then said that he believed that they were members of the Taliban because they had followed him but while, as he said, they may have recognised each other because these people were also from Parachinar, it appears to be pure supposition on his part that they were following him or running after him or that they maybe wanted to kidnap him. While I accept, therefore, that he may have recognised people from Parachinar in a market in Peshawar, I do not accept that they were members of the Taliban, that they followed him or that they wanted to kidnap him or otherwise target him for any reason.
As referred to above, [the applicant] has also said that in around September 2011 his uncle [Mr A] was transferred to a hospital in [Town 1] but shortly after starting his duties there a letter was left for him by the Taliban saying that he was to stop working for the hospital and that his services were required to assist the Taliban. He has produced what purports to be a copy of this letter which does not tell his uncle to stop working at the hospital and which is addressed to [Occupation 1, job title ] [Mr A]. In her post-hearing submission [the applicant]’s representative submitted that his uncle had been well-known for the [store] which he had run with [the applicant]’s father and she submitted that it was plausible that the Taliban would have referred to his known position rather than the position which he had only been in for a short period. She submitted that the letter had not been addressed to [the applicant]’s uncle at [Town 1] Hospital. However it is [the applicant]’s evidence that the letter was left for his uncle at the [Town 1] Hospital. Moreover [the applicant] said in the statutory declaration accompanying his application that another reason his family were well-respected in the area was that his paternal uncle, [Mr A], was [a health professional] at [Hospital 1] in Parachinar. This was therefore not a position which [the applicant]’s uncle had only been in for a short period.
At the hearing before me [the applicant] said that the Taliban were not educated people and that they did not understand the difference between [Occupation 1] and a [health professional], but he himself said that the Taliban had asked for his uncle’s assistance in treating the injured Taliban because uncle was well-known as a [health professional], not as [Occupation 1]. Once again I consider it relevant that, after supposedly receiving this letter threatening to kill him and his whole family if he did not assist the Taliban, [the applicant]’s uncle returned to Parachinar and that he continues working as [a health professional] at [Hospital 1] in Parachinar as well as running a [store] there. [The applicant] said that there was security provided by the government for the hospital in Parachinar and that his uncle felt safe there but once again it is his evidence that the Taliban are capable of carrying out guerrilla attacks in Parachinar. I consider that the fact that his uncle continues to live and work in Parachinar casts doubt on his claim that his uncle was threatened by the Taliban in 2011.
As I put to [the applicant], the Australian Department of Foreign Affairs and Trade has said that document fraud is regularly found in Pakistan.[12] [The applicant] said that it was possible to make false documents in big cities but in rural areas the equipment was not available to make false documents. He said that these documents were original and they had their own stamp. After I put to him that there was no stamp on the letters he said that he was referring to the letterhead. After I put to him that this could be produced on any printer he agreed but he said that one could tell from the way that the letters were written that they were from the Taliban because the Taliban’s Pashto writing was different by which he said he meant that there was some grammar or some words that were different or that wrote words in the same manner they were pronounced, with a different accent.
[12] DFAT Country Report - Pakistan, 14 April 2015, paragraph 5.45.
Having regard to the problems with the two letters purporting to be from the Taliban which [the applicant]’s representatives produced to the Tribunal under cover of their submission to the Tribunal dated 14 May 2015 and the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that these two letters are genuine. I do not accept that [the applicant] or any other member of his family or his friends were ever threatened by the Taliban. I accept that, as his representatives mentioned in their submission, health workers involved in polio and other vaccination campaigns have been killed in various parts of Pakistan but I do not accept on the evidence before me that there is a real chance that [the applicant] will be persecuted because his father has a [store], because he worked in his family’s [store] or because of his relationship with his uncle who is [a health professional] at [Hospital 1] if he returns to Parachinar now or in the reasonably foreseeable future.
[The applicant] referred to his evidence that his father and his uncle had dissolved their partnership and that his father’s business had decreased. He said that there were no other work opportunities available for him in Parachinar but he said that he had not left Pakistan because of a lack of work opportunities and he said in the statutory declaration accompanying his application for a protection visa that his family were wealthy landowners. I do not accept on the evidence before me that there is a real chance that [the applicant] will be discriminated against in employment for one or more of the five Convention reasons if he returns to Parachinar now or in the reasonable foreseeable future. As I have indicated above, I accept that he is a Shia Muslim but I do not accept on the evidence before me that there is a real chance that he will be prevented from practising his religion as a Shia Muslim if he returns to his home in Parachinar. I do not accept that [the applicant] has ever been singled out or targeted by the Taliban or other extremist Sunni groups or Sunni people more generally and I consider that his situation is the same as that of other Shia Muslim members of the Turi tribe in Parachinar including his family who continue to live there.
As I put to [the applicant], the Australian Department of Foreign Affairs and Trade advised in April 2015 that the 2013 truce in the Kurram Agency was still in place as of November 2014. It advised that the main road from Thal to Parachinar 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 likewise put to him, UNHCR also conducted a mission to Kurram in April 2014 and it concluded that it was evident that general peace had been restored in both Upper and Lower Kurram.[14]
[13] See the DFAT Thematic Report - Shias in Pakistan, 14 April 2015, paragraph 4.35.
[14] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.
As I put to [the applicant], the FATA Research Centre said in its Annual Security Report 2014 that the Kurram Agency had remained comparatively quiet in 2014 and that a total of two incidents, one bomb blast and one target killing, had been recorded during that period, killing three people and injuring one person.[15] In its quarterly report for the second quarter, from April to June 2015, the FATA Research Centre said that the Kurram Agency had remained relatively stable and that only three security incidents had been reported during that period. 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 [Town 1].[16]
[15] FATA Research Centre, Annual Security Report 2014, 26 May 2015, CISEC96CF1950, page 46.
[16] [Source deleted].
[The applicant] said that there were a lot of incidents and instability over there which was not broadcast in the media so no one knew about it. He said that he understood and heard about these incidents and what was going on over there. However, as I put to him, I consider that there is very comprehensive reporting of the incidents which occur in the Kurram Agency. [The applicant] said that the stability would only be for a limited time, not forever, and that it would change soon and his representative referred in her post-hearing submission dated 13 November 2015 to the advice of the Australian Department of Foreign Affairs and Trade in paragraph 4.37 of the DFAT Thematic Report - Shias in Pakistan (14 April 2015) that the situation in the FATA remained volatile. However, as referred to above, I consider that this paragraph refers to the FATA as a whole and that it does not undercut the advice of the Department in paragraph 4.35 that there is an improved security situation in the Kurram Agency.
I accept that, as referred to in the further submission dated 17 December 2015 from [the applicant]’s representative, on 13 December 2015 at least 25 people were killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar.[17] [The applicant]’s representative submitted that this most recent attack was indicative of the increasing tensions in Parachinar and supported [the applicant]’s fear that current insecurity in the region would lead to further sectarian violence. I consider, however, that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre. I consider that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous and, while I accept that the Lashkar-e-Jhangvi reportedly threatened more attacks of a similar nature in future, I consider that it would be premature to conclude that this attack - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. I consider that it would be mere speculation to find on the evidence before me that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before me concerning the security situation in Parachinar and in the Kurram Agency more generally, I consider that there is only a remote chance that [the applicant] will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.
[17] Mehdi Hussain, ‘Burying their dead: Parachinar blast victims laid to rest’, The Express Tribune (Pakistan), 15 December 2015, CXBD6A0DE16980.
[The applicant] said that that the other big issue was that now he had lived for some time in a western country, Australia, and ordinary people and the Taliban did not like people who had lived in western countries. 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 and that those living abroad frequently return to Pakistan to visit their relatives. The Department has advised that these people are not at any increased risk because they have spent time in western countries and it assesses that there is no evidence to indicate that individuals will be subject to discrimination or violence as a result of them having spent time in western countries.[18] [The applicant] said that his region was different from other parts of Pakistan. He said that if people from Parachinar went to western countries and then returned they would easily be recognised by Sunni people and the Taliban and it would be dangerous for them. However I give greater weight to the advice of the Australian Department of Foreign Affairs and Trade than I do to [the applicant]’s evidence in this regard and I do not accept that there is a real chance that he will be persecuted by the Taliban or other Sunni extremist groups, by Sunni people or by ordinary people because he has spent some time living in a western country like Australia.
[18] DFAT Country Report - Pakistan, 14 April 2015, paragraph 3.63.
[The applicant] also said that his understanding was that it would not be safe for a person from Parachinar like him who had tried to escape and to seek asylum in a western country. However, as I put to him, the Australian Department of Foreign Affairs and Trade has advised that failed asylum-seekers like himself who have left Pakistan on valid travel documents have not committed immigration offences in Pakistan. It has said that it is not aware of any credible reports that failed asylum-seekers returning to Pakistan have been punished by the authorities on their return to Pakistan.[19] [The applicant] said that he had not heard of anyone who had left on a valid passport ever returning to Parachinar. He said that if someone returned he would definitely be killed. I do not accept on the evidence before me that there is a real chance that [the applicant] will be persecuted because he will be returning to Pakistan after seeking asylum in a western country.
[19] DFAT Country Report - Pakistan, 14 April 2015, paragraphs 5.21, 5.22, 5.23.

For the reasons given above I do not accept that, if [the applicant] returns to his home in Parachinar now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his race as a Pashtun member of the Turi tribe, his religion as a Shia Muslim, his brief involvement in the ISO, his involvement in the library as described above, his imputed political opinion in opposition to the Taliban due to his religion, his membership of the Turi tribe, his involvement in the ISO, his relationship with his uncle or his past employment at his family’s [store] or his membership of the particular social groups of Turi tribe members, ‘Shias from Parachinar’ or ‘Educated Shia Muslims’ as submitted by his representatives. While I accept that, as referred to in the submission from [the applicant]’s representatives dated 14 May 2015, there have been attacks on Shia intellectuals and professionals in other parts of Pakistan, I do not accept on the evidence before me that there is a real chance that [the applicant] will be attacked for this reason if he returns to his home in Parachinar. I have considered the totality of [the applicant]’s circumstances as an educated Shia Muslim member of the Turi tribe from Parachinar who I accept comes from a well-known and well-respected family of landowners, whose father has a [store] in Parachinar, whose uncle is [a health professional] at [Hospital 1] in Parachinar, who worked in his family’s [store] before leaving Pakistan, who was briefly involved in the ISO while at college, who established a library with three friends to provide extra tuition to school children and who will be returning to Pakistan after spending some time seeking asylum in a western country, 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?
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 for any of the reasons which have been advanced in support of his application. I have considered the totality of [the applicant]’s circumstances as an educated Shia Muslim member of the Turi tribe from Parachinar who I accept comes from a well-known and well-respected family of landowners, whose father has a [store] in Parachinar, whose uncle is [a health professional] at [Hospital 1] in Parachinar, who worked in his family’s [store] before leaving Pakistan, who was briefly involved in the ISO while at college, who established a library with three friends to provide extra tuition to school children and who will be returning to Pakistan after spending some time seeking asylum in a western country, Australia. However, even taking into account the cumulative effect of these circumstances, 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
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
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
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.’
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.
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.
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.’
‘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)
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.
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.’
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
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
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
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)
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.’
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.

[2016] AATA 4890

10 January 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing