1407997 (Refugee)

1407997 (Refugee) [2016] AATA 4888 (13 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1407997
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Sean Baker
DATE:13 January 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 13 January 2016 at 3:38pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Political opinion – Supporter of Awami National Party (ANP) – Imputed political opinion – Social group – Family of ANP member – Victim of land seizure and false imprisonment – Victim of attempted murder – Person with eastern values and western liberal thoughts – Credibility concerns – Inconsistent evidence – Not a witness of truth – Delay in application
LEGISLATION
Migration Act 1958, ss 36, 65, 499,
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] April 2014.
The applicant appeared before the Tribunal on 10 March 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant‘s brother, via telephone from Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and 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.
The issue in this case is whether the applicant’s claims of past harm are true, and whether he faces a real chance or a real risk of serious or significant harm on return to Pakistan. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality
The applicant provided a copy of his Pakistani passport at the hearing. A copy of his passport is also on the Departmental file. On the basis of the evidence before me I find that the applicant is a national of Pakistan which is also his receiving country. The applicant stated that he did not have a right to enter and reside in any third country. There is no evidence before me which indicates otherwise and I so find.
Claims
The applicant provided a statement to the Department:
My name is [Applicant’s name] s/o [Mr A] who was born and raised in a very influential family in the city of Hyderabad province of Sindh. I am [age] years old with a post-secondary qualification residing in Australia. In terms of my family background, my family is from the tribal Pashtuns have descent from the [village] (North West Frontier Province). I have [a number of other] siblings in my family.
My father has been a very prominent figure in the community and the political scene of Pakistan.
I and my other siblings were raised in the family according to the religious teachings of faith of Islam. On a sectarian level, we are from the Sunni (Hanfi') sect. Our practices and preaching's carried out according to the views and systems of this particular sect. In Pakistan sectarianism and diversion of beliefs is very strong and my family has been very particular about its identity and background. Furthermore, I have lived in two different parts of Pakistan from the very south in Sindh and the North of Peshawar city in the former NWFP now known as KPK.
Coming from a rigid Pashtun family and being taught values about culture and identity, I am an individual with a set of eastern values and western liberal thoughts. My thinking and thoughts have drastically changed due to a various number of reasons and have adopted the western school of thought and lived an Australian way of life. I have been in Australia for almost 5 years.
Since my childhood, I have witnessed many difficult situations in Pakistan. I am [a] son of my father who had been bought up with extreme love care and affection.
Since his earlier days, my father has been a very well-known and an influential personality in our Pashtun (caste) community. In Pakistan riots and unrest has been on rage from the past three decades and I as a citizen of Pakistan have seen a very difficult time. My family especially my father has been with a well-known and reputable political party Awami National Party (ANP) and has served the seat of [deleted] of the ANP party from the year 1988 to 1992 (Photographs attached) .He has contested for elections twice in his tenure on provincial and federal level on the ticket of ANP (List of contesting candidates attached)
I was a very young child when my father was on peak of his political career and a number of people followed and adhered to his commands and became his close allies. With success and fame, my father also acquired a number of enemies and some political groups were not happy with his rise in the southern province of Sindh where there is minority of Pashtun community. Before his elections even, in the year 1986 severe riots broke down between the communities of Pashtuns and Muhajjirs(Migrants) in Sindh in which our family suffered a massive financial loss and it had caused an immense level of emotional distress
Talking about myself, I did my primary schooling in Hyderabad but was sent to a boarding school to Peshawar to complete my secondary education. I completed my HECS (Matriculation) certificate from Peshawar and returned to Hyderabad to complete the remaining two years of college education. My father organised for me to get an international education and return to Pakistan. I came to Australia in 2008.
It has been very unfortunate for me and my family however, that the high officials in government departments have the ultimate power to accuse and seize things from a common man.
Although there was Social unrest between the groups of Pashtuns and muhajjirs prevailed during these years and there were a number of target killings and torture between the groups I was not targeted by the muhafflirs or the Sindhi ethnic group.
Incidents and attacks on me and my family
In order to address the problems and issues which l have faced, I would like to address a number of events that happened to my family in the past two decades and how we dealt with those situations in those difficult circumstances.
On the [date] of December 1998, Pakistani agencies (Police and Anti-Narcotics Force (ANF) raided our residence in Hyderabad during the day in the afternoon on the orders of government officials. In the midst of arguments and confrontation, my [uncle] was shot dead and they arrested my brother and my [other] uncle (News Paper article attached).
The allegations by government officials state and federal put on my family were on the basis of false evidence planted by federal and state bodies.
My family were accused of holding weapons which were not in the possession of the family.
Because the police and the forces have a substantial record of being corrupt in Pakistan, they jailed my brother and uncle for a whole long period of 6 years on false allegations of keeping unauthorized weapons.
In the year 2004, the High court of Sindh (Pakistan) heard the case and gave the decision in favour of my family members and they were finally released from the prison. The long awaited case was decided by [two judges] [in] 2004.
The judges in their statements made it very clear and explicit that the family was accused on false charges and had no possession of weapons and drugs of any sort against the law of Pakistan (Judgement Statements attached)
Furthermore, in the year 1996 when I was [age] years old, another case was filed against my family including myself on false grounds. Me and my family members were accused of smuggling narcotics and our own properties and Bank accounts were seized because the ANF (Anti-Narcotics Force) made allegations that these properties were made and developed through money from smuggling drugs. On the [date] of February 2000, the Custom court of Pakistan heard the issue and decided that the properties were acquired through legitimate means. My father had divided the family properties into the names of my brothers.
Even though the court decided in favour of my family, it was unfortunate on our side that those properties were not released and given back to our family. Because the real corruption and manipulation of records happens on those high level of politics, our family was blackmailed for a heavy amount of money to be paid to corrupt government officials to release our lands and bank accounts (Judgement of Custom & High court attached).
This case was reopened again in the year 2004 against my family including myself seizing further properties and accounts. Another prolonged period of 7 years passed away after the decision again came in our favour but still the properties were not fully handed over and given possession to our family. I was only [age] years old when the case was filed even under my name on the accusation of acquiring land and properties illegally. As I am one of my father's heir, I was handed over certain share in family property at a very young age hence the allegations were also under my name.
tragedies faced by our family have not been limited to seizure of property or prison but things have gotten worse due to death threats from corrupt government officials, Taliban, and MQM
In 2009, I was informed about a tragic incident in which my brother was shot in his abdomen by the people of the Mutahida Quaaumi Movement due to political rivalry and was in the hospital with a critical condition.
The hospital officials informed that a young individual was bought in critical condition with a sever gunshot injury and was actively bleeding form the wound in his abdomen (Hospital reports attached).
After inquiry from my relatives and brothers, I was informed that workers of MOM they shot him in the stomach with intention to murder this happened in the metropolitan city of Hyderabad.
In addition to Hyderabad, circumstances in my village had drastically deteriorated as well which is the region of Buner district. My paternal family resides in the village and one of my father cousins is the acting [official] of the ANP in the district. Due to affluent status and liberal thoughts, my family had been threatened by the Tallban in the region. The region of Buner has been home to well known Taliban leaders and is a very sensitive district in Pakistan. The supporters and people of ANP in Pakistan are always on the verge of attacks from the Taliban due to their opposition to the Taliban and their religious views.
My whole family supports the Awami national party and thus most of my family members in the village are threatened by the Taliban who have acquired most of the regions. Practically speaking in KPK, Awami National party is on the hit list of the Taliban at the moment as they support the current government to launch the army operation against them and their extremism.
I returned to Pakistan in October 2011 to support my family about the property maters at the court. My other reason was to discuss business matters with my family.
In January 2012 I was subject to attempt for murder. This is the first time that I have been targeted in Pakistan.
I was very sure about the intensions of the two individuals who made an attempt on me
This whole incident happened in glimpse of second outside [Hospital 1] in Hyderabad [in] Latifabad. I went to Latifabad to meet a very good friend of mine who resided in the vicinity. While in my vehicle, I noticed two men on a motor cycle.
I suddenly noticed arms in their hands in my rear mirror when my car stopped on traffic lights. Without even thinking, I tuned the engine of the car off r and just rushed into the hospital.
I hid myself in a huge crowd of people in the hospital. I was frightened and straight away called up my brother who rushed and I confronted him with the whole scenario. I was very moved and scared because nothing like this had happened to me before.
We went to the police station and lodged a complaint. I believe that these people were connected to opposition political parties and those people who had taken action against us in the court for the property matters.
I remained in hiding until a ticket was arranged for me to return to Australia. During this time my family received threats. I received threats also.
I travel back to Australia [in] February 2012.
Since my return, things went worse in Pakistan and currently it is extremely insecure for an individual to live in a suppressed and extremist society of Pakistan.
There are kidnapping, manslaughter, target killings and rapes. Much to add on the political scenario, the Northern Pakistan is on outcry from the Taliban's who have spread in the country like fire and have created a number of issues for the ordinary men. These groups of people are forcing their rigid and extremist religious ideology on the common men on tip of sword. Not only the tribal regions but the urban regions of Pakistan have been acquired by Taliban. The tenure of Pakistan Peoples Party from 2007 to current, have failed miserably to provide security to the common man from these extremist groups and have done nothing to stop the political unrest in the nation from the past 5 years.
Because of ongoing threats and Fragile age of my father and due to corrupt government officials is something that frightens me. I fear returning to Pakistan.
Furthermore, living and residing in Australia, my ideology and lifestyle have moulded into much more western and liberal ways and thus it is extremely hard for me to adjust in suppressed and conservative society like Pakistan. I will speak out against the corrupt government officials and the extremes of the Taliban and opposition parties like the MOM.
In the country, religion is not given as choice but imposed on the person and this is something that frightens me as I have lived my life according to my own will and appreciated freedom for every individual.
Coming from a very affluent liberal family of Pashtuns and having a western ideology, living in Pakistan is
extremely hard for me and I'm mentally not in a position to take any risk again by travelling to Pakistan and live under the norms and beliefs of other people and be subjected to such incidents which could have claimed my own life.
The reasons mentioned above clearly indicate that on the grounds of attempt of murder and attacks on my family I would be subject to arbitrary deprivation of life and would be subject to torture if caught in a difficult
situation in the hands of the political groups in the southern part of Pakistan or the Taliban in the Northern part of Pakistan due to affluent status and political ideologies. AS I am a moderate Sunni I would speak out against the Taliban in any part of Pakistan. My family has already been targeted by the Taliban in KPK. I am certain that as l come from a high profiled family with a long history in politics hal will be targeted by the Taliban in any part of Pakistan.
My ground of this protection visa is the extreme risk of torture and death threats at the hands of influential political parties and their workers.
His claims in his protection visa application are consistent with the above.
The applicant provided a number of documents to the Department, including:
·A copy of his Pakistani passport;
·Several newspaper reports about attacks in Hyderabad;
·A judgment acquitting the applicant and his family, special case No. [number] of 2004, Court of 1^st additional sessions judge, Hyderabad;
·A further order in relation to property of the court of special judge (anti smuggling) which appears to dismiss the property case;
·A judgment of the High Court of Sindh dismissing a case against the applicant’s brother and uncle in a criminal appeal;
·A police complaint (referred to as an FIR) made by the applicant [in] January 2012 at [a] police station, and translation;
·Documents relating to the applicant’s father’s nomination as an ANP candidate;
·A birth certificate of the applicant;
·School and college certificates for the applicant from Pakistan and study in Australia;
·A discharge certificate form [a] Hospital, Karachi for the applicant’s brother, discharged [in] March 2009, admitted with gunshot injury;
·A letter from [Mr B], [senior official], ANP, about the applicant’s father, dated [in] July 2012;
·A number of photographs of the applicant’s father at political events;
·A number of news articles and blog posts provided at the Department interview by the applicant’s representative which discuss the political situation in Pakistan;
·A copy of an ANP membership card with translation; and
·A high court of Sindh notice that the applicant, with his family members, should attend court for the hearing of an appeal of their acquittal [in] April 2013.

The delegate refused the application, and found the applicant not to be credible in relation to the 2012 claimed attack.
The applicant applied for review, including a copy of the delegate’s decision. No submissions were made prior to the hearing.
Post hearing, the applicant’s representative has provided a large volume of information as well as submissions and medical reports for the applicant.
Mental health
After the hearing, on 11 June 2015 the applicant’s representative claimed that the applicant had been assessed by his GP and treating psychologist, and that this should be taken into account when considering relocation, and that the applicant claimed he would be discriminated against when seeking medical treatment. It was claimed that these reports were attached. They were not, but several articles about mental health treatments in Pakistan were. Subsequently further time was requested to provide a medical report. Eventually several statements from the applicant’s treating [psychologist] were provided [in] October 2015, dated [in] April 2015 and [in] September 2015, which identify that the applicant has symptoms of anxiety and depression. The submission requested that further time be give as the applicant had a chronic nasal infection which meant he could not see a psychiatrist. On 16 November 2015 the representative write saying that he had not received any confirmation of an appointment with a psychiatrist. On 18 November the Tribunal wrote noting that the tribunal would shortly be making a decision. In response the representative provided a short letter from [Mr C], who says that the applicant received psychological care for a health condition [in] November 2015. This was followed by a report dated [in] November 2015 from [Mr C], a psychologist, who conducted a psychometric assessment. [Mr C] set out the applicant’s history, and noted that the applicant suffered from chronic mixed anxiety and depressive disorder. He noted that the applicant obtained a score on the BDI indicating the presence of severe intensity of depressive manifestation. He then gives his opinion that the applicant suffers from mixed depressive and anxious manifestations, that these will be present as long as his situation is not changed or rectified, that these manifestations are common among those dealing with a state of uncertainty and those who have a fear for their safety, and observes that if the applicant’s applicant was denied he would not be able to receive the level of psychological care he is currently receiving and that the applicant will require ongoing psychological care.
I note that no claim has been made that the applicant’s manifestations have affected his capacity to give evidence at the hearing. I accept that the applicant is suffering manifestations of depression and anxiety. I find that these manifestations have not impacted on the applicant’s capacity to give evidence, and I find that he was able to participate meaningfully in the hearing, nor do they explain, in whole or in part, the below credibility concerns.
Credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
This case raises considerable credibility concerns. The applicant’s evidence contained significant inconsistencies and implausibilities, the most significant of which I have set out here, which lead me to have considerable concerns with that evidence.
The claimed attack in January 2012
The applicant returned to Pakistan in 2011 -2012. He claims that that he was the victim of an attempt to kill him in January 2012, as described above. He claims that this was the first time he was targeted in Pakistan.
At hearing, the applicant struggled to describe this event in a compelling and plausible manner. He gave evidence that he noticed two men on a motorbike near his car, and on seeing one step off the motorbike with a gun, he got out of his car and ran to the hospital. He struggled to explain whether he left his car stopped in the street at the traffic lights (which appears to be the case in his statement) or had time to park his car as soon as he saw the people, which he claimed at hearing. I find these claims inconsistent, and despite being given the opportunity to address this, the applicant was unable to explain whether he had been stopped at the lights, turned off the ignition and run, or was able to park the car. He also claimed at hearing, consistent with his statement, that one of the men had a gun. When I noted that this, which I considered very significant information, was not mentioned in the translated [FIR] the applicant said that the reason it was not mentioned in the FIR was because the police man asked him if there were witnesses and the applicant said there were not. I do not accept this explanation – as I said to the applicant, if the police required a witness why would they have written and give him an FIR at all. It is not plausible, I find, that the police were willing to lodge and provide him the FIR he has put forward which includes events based only on his claims to them, but then were unwilling to include the further detail of one or both the men being armed but insist this required witnesses. I note also that the applicant has claimed that his brother came to his aid (in the delegate’s decision, his brother came to collect him) and they made the report at the police station, yet there is no mention of his brother or any evidence his brother could have provided, in the police report. The applicant said that this was because the report was in his name.
The applicant claimed that he ran from his car to [Hospital 1]. According to the delegate’s decision, his description of the hospital and the way to the hospital was inconsistent with publicly available information about the hospital – significantly, the applicant described leaving his stopped or parked car outside the main gates, 15 to 20 metres from his car to the hospital, walking straight from the footpath next to the road he walked straight into the hospital and into a corridor, when he walked into the corridor there were patient rooms and down the corridor on the left hand side was an emergency counter. He said the hospital is [details deleted]. The delegate reports that he put to the applicant that publicly available information indicates that the hospital is [a number of] storeys high, that it is not possible to walk straight from the footpath next to the road directly into the hospital as there is a large car park a person must walk through before entering the hospital. After a break the applicant is reported to have said that because of the confused condition he was in, the small building looked big to him, it was claimed on his behalf that the applicant had identified the material aspects of the hospital.
At hearing I discussed this with the applicant. He was unable to adequately explain these inconsistencies. He said that there was confusion with his interview with the department, he mentioned a corridor, but it was a walkway. At the right hand side he said, there is a small car park, and on the side of the gate there are medicine shops, inside the walking part there is another small building. When I noted that I considered he had given evidence inconsistent with the publicly available information about the hospital to the delegate, he said that he could not explain this; he said there is another small building, a consultation room kind of building for the patients. He said that the emergency counter is straight in the main building but you have to go into the walking part of the building.
I do not accept the applicant’s or representative’s explanations, as reported by the delegate or as given at the hearing in relation to these inconsistencies. I do not accept that stress, translation error or any other misunderstanding has produced what I find to be significant discrepancies between the applicant’s recollections of the hospital and the publicly available information set out by the delegate.
The applicant’s brother also provided evidence about this event. He did not claim to have witnessed the attempted attack. He simply said that there was an attack against his brother and he lodged an FIR, and that the investigation was still continuing. The applicant’s brother said that the applicant telephoned him and told him the story, he went and looked around but the people were gone, they went to [the] police station and filed an FIR there. He said that the applicant had told the police that two people were chasing him and had guns and because the applicant was afraid and entered hospital and they disappeared. The applicant’s brother said this was what the police wrote down, the applicant’s brother had a copy and he gave it to the applicant. Given the inconsistencies between the applicant’s evidence and the FIR, I give his brother’s evidence no weight.
In the post hearing submission sent 8 April 2015, the inconsistencies were raised, and the submission stated that:
The review applicant states that he has said that the Hospital that he ran to was [several] stories high and on another occasion [a number of] stories high. This aspect has been canvassed at the interview at the Department. Responses have been made on this matter. The review applicant wishes to restate that he made this observation falsely believing that [Hospital 1] was higher than it actually was. This as he now acknowledges was incorrect.
The review applicant advises that there is indeed a hospital located at the location named by him. Moreover the review applicant has described walking down a pathway and into the hospital in order to get away from his attackers. Moreover reference is made to the hospital in the FIR. The factual information about the location and name of the hospital could only have been given by the review applicant.
It is contended that [Hospital 1] is located as the review applicant has stated, It is contended that the hospital whether it is [several storeys] and [higher number of] stories as the review applicant has falsely held does not detract from the fact that the hospital does exist and is located exactly where the review applicant has stated.
The submission, in my view, somewhat misses the point. The applicant’s evidence to the delegate, as reported in the delegate’s decision, is materially different from the publicly available information, not just in the height of the hospital, but in his description of walking from the footpath straight into a corridor with the emergency department on one side. I do not accept that the discrepancies are due to confusion or stress, either at the time of the claimed attack or during the interview; these are material differences which I do not accept a person, even stressed and afraid, would have got wrong, moreover, it is the accumulation of the inconsistencies which gives rise to the concern here. When taken together, I find that these inconsistencies demonstrate that this event did not happen to the applicant, and has been invented by the applicant, who has some knowledge of the hospital and area, but has not experienced these events and so has not been able to describe the environment in consistent detail. This finding leads me to have considerable concerns with the applicant’s overall credibility, given that he has claimed that this is one of the key events which leads to him fearing return to Pakistan.
The applicant’s father’s claimed political profile
The applicant’s claims rest largely on his father’s claimed prominence with the ANP. The applicant claims that his father has been a very prominent political and community figure in Pakistan.
However, and as put to the applicant at hearing, the country information research service was unable to locate information, including on the ANP website, on a [Mr A] being affiliated with the ANP from Hyderabad. At hearing the applicant indicated that he wished to respond to this in writing.
In the post hearing submission sent 8 April 2015, it is submitted that:
The review applicant maintains that his father [Mr A] is a respected and much appreciated ANP member. This family has been resident in Hyderabad, Sindh since the 1930's. However as advised the family has and continues to maintain links with their ancestral home in the KPK province.
The review applicant that his father was instrumental in establishing the ANP in the Sindh. Moreover as advised [Mr A] is respected in the province of KPK for his tireless work for the ANP. I have been advised that the father has been jailed falsely and indeed has served time for his activities on behalf of the ANP. SAs advised [Mr A] has served time In Jail prior to the review applicant's birth and following his birth. The review applicant advises that he recalls that his father last spent time in jail when he (the review applicant was [age] years old). As advised it is now more than 19 years since the last imprisonment of his father. The applicant advises that he did not make reference to the father's jail term because it was mostly before he was born and moreover the jail time spent was more to do with his father's political activities. The review applicant focused on more recent and pressing matters dealing directly with the false allegations made against his family members by the Pakistani authorities, particularly the Anti Narcotics Force. The applicant advises that there is no doubt that his family's persecution at the hands of the Pakistani authorities is interconnected with his father's political activities and that of his family. As advised the review applicant focused on the more recent events.
The Tribunal made reference to the paucity or lack thereof of information about [Mr A]. The review applicant seeks the Tribunal's understanding in this aspect The review applicant states that the activities of his father predate the development of the Internet As indicated at the hearing the review applicant's father is now in his mid 80's. Moreover any archival material would indeed be difficult to access. This would require a search of archives in Hyderabad, Karachi and Islamabad. Such a task is difficult in the current political environment in Pakistan, There are indeed as advised safety issues to be considered. The review applicant seeks additional time be granted for the review applicant to obtain archival information pertaining g to his father. The review applicant states that the following is in transit and has not been received at time of writing this submission or is being sought by the review applicant's brother.
…
Statements were made by the Tribunal regarding the lack of information about [Mr A] on the ANP web site. The review applicant states that the web site was set up only recently and does not hold all of the archival material. The applicant advises that according to available information received by telephone from the ANP sources and passed onto him by his brother in Pakistan the ANP web site has not been up dated or added to since its establishment in 2010.
On the matter of the review applicant's father and reservations held by the Tribunal about his father. The review applicant seeks that the Tribunal be ' reconvened for the purpose of the Tribunal putting directly to the review applicant's father questions about his activities as a member of the ANP and the court matters.
The submission indicated that further information was being sought by the applicant. This was provided after a considerable period. On 1 May 2015 the applicant’s representative provided a submission under three emails which included as attachments an untranslated book excerpt, with a promise that the translation would follow, photos, undescribed, what are claimed to be newspapers with pictures claimed to be of the applicant’s father. There are no newspaper titles or dates or in fact any identifying features. A letter from [Mr D] is promised. It is requested that two officials from the ANP are contacted, and several articles are provided on intolerance towards Pashtuns in Pakistan, and recent changes to laws in Pakistan giving the army greater powers.
On 7 May 2015 the applicant’s representative provided a letter from [Mr D]. The untranslated book excerpt was again attached. The letter from [Mr D] states that he is a member of the Pakistan National Assembly for Peshawar since 2013, is a senior member and leader of the ANP for KPK province, certifies that [Mr A] has been known to him for some time, that [Mr A] has served the ANP in Sindh since its establishment in 1977 and assisted in KPK, he is now an elderly man and recognised as an elder of the party, is much revered and respected, has contributed to the development of the party in Sindh, nominated to be the ANP representative in 1988 and 1990 and recognises the contribution [Mr A] has made nationally.
On 11 June 2015 the representative clarified that earlier photographs were of protestors at the Hali road in the 1970’s. Also included was the translation of the previously untranslated book excerpt. Submissions are made that the confrontation with the police in 1977 referred to in the book was due to [Mr A’s] stand against corruption over a long period of time, it is claimed that the applicant has a duty to continue this tradition if he returns, this would lead to harm, and for this reason he cannot be expected to relocate. The book extract contains no information about where or when the book was published, by whom, and the Urdu copy appears to not have a cover and to be more in the form of a pamphlet than a book. It contains a very colourful account of a claimed confrontation between the police and the residents of Hali Road in Hyderabad, including [Mr A], [in] February (from the heading of the book chapter this appears to have taken place in 1977). The book excerpt indicates that the police had received information about illegal weapons in his house. A number of people were killed by the excerpt notes that [Mr A] was brought out of the mosque after the shooting stopped. The excerpt suggests, although with no clear evidence in the excerpt, that the police took this action because [Mr A] had changed allegiance from the Peoples Party to the Pakistan National Alliance.

Also included was a report from the ICG on reforming Pakistan’s police, and research and news reports on the corruption and politicisation of the police. The submission states that these reports indicate the police are poorly trained and corrupt and that it was evident from the applicant’s evidence that the police are unwilling and unable to provide protection. The submission goes on to discuss endemic violence in Pakistan in the context of relocation and discussed claims of complementary protection.
I do not accept the arguments and claims put forward in the various submissions, letters, reports and articles. The evidence proffered about [Mr A’s] prominence, and what harm he has experienced due to this prominence is contradictory and inconsistent.
The arguments in the initial post-hearing submission was that the applicant did not mention that his father had been imprisoned in his statement to the Department because it was a long time ago, 19 years ago, and was more to do with his father’s political activities, and that the applicant focused on the more recent and pressing matters dealing with the false allegations made against his family members by the Pakistani authorities, particularly the Anti Narcotics Force. The difficulty with this argument is that the applicant did mention the imprisonment of his father at the hearing, claiming his father had been imprisoned at the time of the police attack on the home 19 years ago, and that his father had spent years in jail because of the case brought by the Anti Narcotics Force.
In relation to the claim that his father’s political activity was considerably in the past, that the activities of his father predate the internet, that archival information would be hard to access and that archival material would be difficult to access, whilst I accept that there will be material that may not be available online, that archival information may be difficult to obtain, I do not accept the paucity of information provided when compared with the claim of his father’s former prominence in the ANP. It is claimed in the letters and by the applicant that his father was a founding member of the ANP in Sindh. It is claimed by the applicant, and in the letters said to be from ANP leaders, that his father is a respected elder of the ANP. It is claimed by the applicant that this is the basis for, and the main reason why court cases have been brought against the family and are still ongoing, and why the applicant fears harm. This is a significant claim to make, and yet I find that the applicant has provided little credible evidence, and what he has provided has been inconsistent. I note that the submission argues that the ANP website was only set up recently, does not hold archival material and is not updated. All of these statements are untrue. In fact the website has archival material dating back to 2008, not 2010 as claimed and appears to have been regularly updated with the most recent entry being January 2016.[1] Given that it is claimed the applicant’s father is a respected elder, for there then to be no information found by the country information research service is indicative, I find, that the applicant’s father is not, and may not ever have been, particularly prominent or influential in the ANP. I further note that the investigation of the country information research service was not limited to a search of the ANP website but included a search of the website. I prefer and give greater weight to the country information research service response than to any of the materials provided by the applicant, which I do not find credible or persuasive. The letter first provided from an ANP leader, [Mr B], has considerable deficiencies, as discussed below. The book excerpt I do not find highly credible – the Urdu copy provided appears to have a paper cover and appears to be in the form of a pamphlet, not book, it is written in a colourful and partisan style, clearly from a supporter of [Mr A], his claimed political allegiances and an opponent of the authorities. I give this excerpt no weight. The letter from [Mr D], as pointed out in relation to the letter from [Mr B], it does not detail the claimed harm suffered by either [Mr A] or the applicant. It was provided a considerable period after the hearing and my concerns had been raised but does not address many of my concerns in relation to the claimed history and harm claimed to have been experienced by [Mr A]. I do not find the claim that the applicant cannot direct what is written in these letters – I think it is reasonable that if [Mr A] and the applicant have suffered in the manner claimed by the applicant, that these letters would contain a consistent account of that. On the basis of this reasoning and my reasoning below in relation to the letter of [Mr B], I give no weight to the letters from [Mr B] and [Mr D].
[1]
Further, in discussing the letter provided from [Mr B], with the applicant, I developed serious doubts about the content of this letter in relation to the claims made by the applicant about what has happened to his father. In the letter, [Mr B], the Senior Vice President, Provisional of Sindh, ANP, writes that [Mr A] is a founding member of the ANP, that he contested two general elections, that because of his affiliation with the ANP [Mr A] and his family members have been subjected to torture, humiliation and false cases by the establishment and parties including the MQM to pressure him to stop his affiliation with the ANP, that there have been so many life attempts (assassination attempts) on [Mr A] and his sons which they have narrowly escaped, and [Mr A] and his family members have serious/grave life threats in Pakistan.
At hearing the applicant made several claims which I find inconsistent with this letter and other information provided. He claimed at hearing that his father was in jail when the Pakistani Police and the Anti-Narcotics Force raided the family home in December 1998. He said that his father had spent years in jail because of this false case, and I noted that this was not mentioned in the letter from [Mr B]. In his statement to the Department, and at the hearing he did not mention that his father had been subjected to assassination attempts, with or without himself and his brothers, from which they had narrowly escaped. I noted to the applicant at hearing that the letter did not seem to match up with his claims about what had happened to his father. In response the applicant said that he had already explained what happened in his statement.
In the post hearing submission sent 8 April 2015, it is submitted that:
With regards the matters raised by the Tribunal regarding the content of the ANP letter. The applicant advises that the letter was provided in good faith regarding his father's activities in the ANP. Indeed as advised he cannot direct what the ANP can write. He advises that the letter was received and provided to the Tribunal to indicate the level and extent of his father's activities. The letter although not specifically mentioning jail time spent does try to encapsulate [Mr A]'s experiences. I refer the Tribunal to this letter and in particular to ..,"That due to his long affiliation with the Awami National Party he and his family members have been subjected to torture, humiliation and false cases by Pakistani establishment and other rival parties especially the Muttehida Qaumi Movement (MQM) to pressurize him to withdraw his affiliation with the Awami National Party". It is my contention that jail time experienced by the review applicant's father can be considered as torture and humiliation.
I do not accept these submissions. As noted above, I consider that it is reasonable to consider that the letter and the applicant’s claims in his statement and at hearing would be consistent about what has happened to his father. They are not. As above, I do not accept the argument that he cannot direct what the ANP writes – this does not grapple with why the letter is inconsistent with his claims about his father. In relation to the submission that the letter does in fact refer to the jail time in referring to him being subject to torture, humiliation and false cases, I do not accept this argument - the claimed experience might have been felt by the applicant’s father as torture and humiliation but I can see no credible reason why [Mr B], writing about this, would not have described [Mr A] as having been jailed, rather than these non-descriptive phrases. The explanation also does not explain why the letter refers to so many life attempts (assassination attempts), but the applicant has failed to mention these or to explain the discrepancy in the claimed past experiences of his father. On the basis of my concerns, and the evidence on document fraud put to the applicant, I give this letter no weight, and, given his evidence, which was inconsistent with this letter, it leads me to have further concerns in relation to the applicant’s overall credibility.
At hearing, I put to the applicant information that document fraud is prevalent in Pakistan:
Information located states that general document fraud is prevalent in Pakistan with a range of false documents available in Pakistan, including passports, Computerised National Identity Card (CNIC), First Information Reports (FIRs), degree certificates, birth and death certificates, financial documents and permanent residence certificates. The Australian Department of Foreign Affairs and Trade (DFAT) in its advice of August 2009 noted that ‘the incidence of fraudulent documentation in Pakistan is high’.[2]
[2] Department of Foreign Affairs and Trade 2009, CIS Request No. PAK 9773: Birth and death certificates; conditions in the Swat Valley, 18 August <CISNET Pakistan CX231791>
Given my findings above in relation to the applicant’s father, my concerns with the applicant’s credibility, and the information on document fraud put to him, I place no weight on the documents relating to the applicant’s father’s nomination as an ANP candidate and the ANP card provided to the Department.
I have considered the letters provided, the extract of the book, photographs, the reports, newspaper articles and other materials. I give greater weight to the to the country information research service response. I do not accept on the evidence before me that the applicant’s father is or was prominent in the ANP. I do not accept on the evidence before me that he ran for elections. I do not accept on the evidence before me that he was a founding member of the ANP in Sindh. On the evidence before me I do not accept that the applicant’s father, family, or the applicant, are active or significant members of the ANP.
Given my concerns with the applicant’s credibility as found and expressed above and below, and with the documents provided by him which I have concerns about, I will not take evidence from his father, or any of the claimed ANP leaders or members he has proffered after the fact. The applicant had an opportunity to call his father, or these other people, as witnesses at the hearing and did not do so.
Delay and return trips to Pakistan
A further concern of the Tribunal is the considerable delay in the applicant making his protection application.
The applicant has remained in Australia on several temporary visas since March 2008. At hearing the applicant said that his intentions after studying in Australia were to go back to Pakistan and assist his family with their business and his father in politics. However, he has also detailed a history of harassment of his family by the authorities, and claimed persecution of his family by the authorities for reasons of their political association with the ANP. However, of most concern is the period following the claimed attack. He has claimed that he survived an attempted attack, he believes associated with his families’ political involvement, in January 2012. He then returned to Australia in February 2012.
The applicant made this application for protection [in] January 2013, close to 12 months after the claimed attempted attack on him and 11 months after returning to Australia from Pakistan. When I asked him why he had waited until January 2013 to apply for protection, he said that he was looking for sponsorship and to do his IELTS test but did not have enough time so he decided to apply for protection. He said he was looking for other options like sponsorship or permanent residence through the skilled migration list but he could not find sponsorship so he was left with no option as he did not want to go back due to these matters. I noted that he had remained in Australia in this period on a temporary visa, with the prospect therefore of having to return, and so I was concerned that he had not applied for protection earlier on return in February 2012. He said that he did not find sponsorship as mostly sponsors wanted highly skilled people. He needed some points to complete, he was looking for sponsorship and was left with no option but to apply for protection. He said in this period he had done his IELTS test 2 or 3 times. I noted that he was saying he had waited to apply for protection until January 2013 as he was doing IELTS tests and trying to get sponsorship and he said he waited until November but he did not pass the IELTS so he was left with no option.
In the post hearing submission sent 8 April 2015, the question of delay is addressed, and it is claimed that:
The review applicant states that he had intended to follow another pathway. However this option was not possible. Having exhausted this possibility the applicant then applied for a protection visa. The review applicant states that to expose these matters in the manner in which is now before the Tribunal is difficult and stressful for him. The review applicant did state at the commencement of the hearing that he was concerned about information getting back to the authorities in Pakistan. Indeed the Tribunal recognized this when stating that the Tribunal was reluctant to make inquiries about the Court Documents given the review applicant's concerns.
The review applicant wishes to reiterate that the actions taken by the Pakistani authorities against him and his family are deliberate and targeted. The review applicant re-states that his father has served time in jail as well as his brother and [Uncle], Moreover the applicant re states that his [uncle] has been shot dead by the ANF Agency in 1998.
The review applicant's experience and indeed that of his family when viewed cumulatively are indicative of the pressures and stress confronted by the applicant and his families at the hands of their persecutors. The false allegations have been ongoing. In that context the review applicant advises that he did not wish to add to his family members stresses who still reside in Pakistan by immediately commencing a Protection case in Australia. However when he saw no other option to protect himself he applied for Protection.
Delay of itself is not an indicator of the veracity of the claimant's claims. In this instance the delay should be seen in the totality of the experiences of the Khan family and the life experience of the review applicant. The review applicant states that he cannot continue to live in an environment where he persecuted because of his family for the rest of his life and moreover cannot continue to exist in an environment where there is the constant threat of the authorities. The review applicant states that the ANF is a tool used by the enemies of his father to continue to pursue the family. The review applicant states that as a loyal son to his father he will continue the family tradition of working for and supporting the ideals of the ANP.
I have had regard to the explanations of the applicant at the hearing. I have grave concerns that the applicant’s response at hearing is indicative that he was not in fear of returning to Pakistan in this period, but was seeking to remain in Australia through skilled pathways, and applied for protection when he had no other option to remain in Australia. the delay in applying for protection leads me to further doubt that he was the victim of an attempted attack in January 2012, because the applicant has not explained why he would not seek to apply for protection in Australia earlier if he had indeed had his life threatened for reasons of his political opinion or imputed political opinion in Pakistan. Information on protection is readily available in the community. I have real concerns with the applicant’s response and justification for the delay at hearing and do not accept that this explanation, when considered in the light of his claim to have been the victim of an attempted attack shortly before returning to Australia, explains the delay in this case.
I have had regard to the explanations and discussion in the post-hearing submission in regard to the delay but do not find any of this convincing at all. I do not accept that the applicant did not seek protection earlier because he was afraid that this would be found out in Pakistan – the applicant did not claim this at the hearing, and has been assured at the Departmental and Tribunal stage of the confidentiality of the process. The assertion that this was recognised by the Tribunal is nonsensical – this related to a request to send court documents for checking in the country which the applicant claims to fear persecution. I further do not accept that the applicant did not apply for protection to save his family form further stress, there is no clear basis to establish that this is the case, or how the applicant’s application for protection, as opposed to him applying for permanent residence on a skilled basis, would stress his family.
Whilst I am willing to accept that delay of itself may not be an indicator of the truthfulness of an applicant’s claims, I find in the case of this applicant that it indicates he does not hold the subjective fear of return to Pakistan that he claims to hold for the reasons he claims. This is because I find that if he had held this fear he would have applied for protection earlier than he did, in the context he has claimed of his family and he being harassed and claimed persecuted by the Pakistani authorities, and then the attempted attack on him. I this context the applicant has not given a convincing reason why he did not apply for protection sooner after his return in February 2012 rather than waiting 11 months. What this means is that when I consider the delay in combination with my grave concerns and findings about the claimed attempted attack, it does lead me to doubt the veracity of the applicant’s claims and his general credibility.
I note that the applicant has indicated he returned to Pakistan in 2009, 2010 and most recently 2011 - 2012. In his protection application he notes that he returned with the full knowledge of the authorities and entered the country legally.
I have considered the above. I find that the applicant has fabricated his claim that he was the victim of an attempted attack in January 2012. When considered with his claims which I have found to be untruthful about his father’s political profile and claimed role with the ANP, the delay in applying for protection after the claimed attack, I find that the applicant has lied about key aspects of his claims and his claimed reasons to fear harm on return. This leads me to find that the applicant is not credible or a witness of truth in relation to key aspects of his claims for protection.
Further, on the basis of his evidence about his study history and his attempts to seek other visas in order to remain in Australia, and my credibility findings, in this case I make a positive finding that the applicant has sought protection solely or primarily to gain permanent residence in Australia, rather than holding any genuine subjective fear of return to Pakistan for the reasons claimed or any other reasons.
Consideration of claims

On the basis of my findings above and my finding that the applicant is not credible or a witness of truth, I do not accept key aspects of the applicant’s claims:
·I do not accept that the applicant is from a very influential family in Hyderabad, on the basis of my credibility findings and the country research response on his father.
·I do not accept that his family, especially his father, is a long standing member of the ANP. I do not accept that the applicant’s father served [as a] of [a senior official] from 1988 to 1992, because of my findings above and because I consider that the applicant would be able to provide credible evidence of this. I do not accept therefore that this father contested provincial and federal elections twice, and I therefore do not accept that during this period, his father made some enemies.
·I do not accept, on the evidence before me and my credibility findings, that the police raid or raids in 1977 and then in 1998 were politically motivated, in whole or in part by the applicant’s father’s profile.
·I do not accept, on my credibility findings, that false evidence was used to convict his brother and [uncle]
·I do not accept, on my credibility findings and the evidence before me, that the applicant’s family had to bribe officials to have their property returned.
·On the basis of my findings above, I do not accept that the applicant was the victim of a murder attempt/attack/attempted attack in January 2012 outside [Hospital 1] in Hyderabad. The applicant does not claim to have been physically harmed or threatened prior to this and I find that he has not been harmed or threatened at any point.
Given my credibility findings and my findings on the other evidence presented, I give the evidence of the applicant’s brother taken at hearing no weight.
What I do accept
I accept that the applicant is a Pashtun, and on the evidence in the post hearing submission I accept that his family has been resident in Hyderabad since the 1930s. I accept that his family may come from Tribal Pashtuns from Khyber Pakhtunkhwa, but I do not accept that the applicant has, or has any need to travel to KPK if he returns to Pakistan; I find that he will, as he did previously, live in Hyderabad. As above, I do not accept that his family is as influential as he claims.
On the court documents, I accept that the applicant’s family home was raided in December 1998 by the Pakistani police and the Anti-Narcotics Force, but as above I do not accept that this was on the basis of the family’s influence or his father’s profile, political or otherwise. I do not accept that this raid was politically motivated. I accept that in the raid his uncle was shot dead and his brother and another uncle were arrested. I accept that his brother and uncle spent a considerable time in jail in relation to these charges before being released. As above, I do not accept on the evidence before me that this was necessarily on false allegations. I accept that the High Court of Sindh then found in favour of the applicant’s brother and uncle.
I accept that another case was filed against the family. I accept that the applicant was a party to the case because some of the land was in his name. I accept that the Customs court in Pakistan found in their favour. I accept that this case is ongoing.
I accept that the applicant’s brother may have been shot in the abdomen in Karachi in 2009. However, I do not accept on my credibility findings or the information before me that this was from an MQM supporter or was in any way related to politics of the family or the claimed influence of their father. I note that Karachi has an incredibly high level of generalised violence.
I accept that the situation in Buner in KPK is difficult. As I have not accepted that the applicant or his family are connected to the ANP, or influential as he has claimed, I do not accept that he or his family have been threatened by the Taliban. As I have found above that there is no reason or need, nor did the applicant raise any matter in relation to him being in KPK, I do not accept that he has any need to travel to or live in KPK.
In relation to the above court matters, and my acceptance of these, this is only due to the material provided by the applicant’s representative from the Courts in Sindh. Nothing in the court documents, or in the letter from [two witnesses], their defence council, or in the judgments provided, indicates that these are crimes motivated by political animosity. My reading of the judgments, hard to read as some of them are, is that they were dismissed for lack of evidence and poor investigatory techniques of the police. I find that these court actions, and the raid do not at all indicate that the family, the applicant or his father is being singled out or victimised by the state because of their actual or imputed political opinion, influence with the ANP, influence more generally, or for any other reason. My assessment of the evidence that I do accept is that the raid and the court actions, the imprisonment of the applicant’s brother and uncle is that there has been nothing untoward in the actions of the authorities in these matters towards the family. That is, there is no indication in the evidence that I do accept that the previous or ongoing court action is motivated in any way by political consideration. I do note that one of the applicant’s uncles was shot and killed in the raid, but there is no clear evidence before me to indicate who did this, in what circumstances, nor does it indicate to me that there is any basis to conclude that this was anything than a very regrettable circumstance of armed police conducting a raid.
The 11 June 2015 submission also claimed that the applicant suffered mental health issues, as dealt with above, and included a scholarly journal article on mental health problems in Pakistan as well as a news article. I have considered the applicant’s mental health claims, above and below.
Further submissions have included articles, Asian Human Rights commission statements police actions and amendments to the Pakistan Army Act. A further article from the AHRC in relation to police extra judicial killings was sent. The most recent submission of 11 January 2016 includes further articles. I have had regard to these articles. The situation in Pakistan is difficult, and there are clearly great problems with the authorities and in particular the police. However, the evidence above about the applicant and his family does not indicate to me that he or they have been a victim of unlawful or unjust actions. The applicant and his family members have been acquitted of the actions brought against them. This indicates to me that the judicial system has worked effectively, and in their favour. I note that the acquittals appear to be on the basis of lack of evidence and poor police procedure, but this does not therefore mean that the charges should not have been brought, were not based in some legitimate concerns of the authorities or had no basis in fact. On the evidence before me the applicant and his family have not been subjected to arbitrary or unlawful court or other authority action. The authorities have appealed the acquittal of one of the cases, but there is no indication that this is unlawful or unreasonable in the circumstances.
Will the applicant be harmed on return?
On the basis of my findings above I do not accept that the applicant, his father or any of his other family are influential or otherwise members of the ANP in any form. I do not accept that the applicant, his family or his father will be harmed now or in the future for reasons of their actual or imputed political opinion. I do not accept that the applicant or his family will be subjected to arbitrary or unlawful actions by the authorities. I accept that there is a court action ongoing, but if the applicant and his family are innocent I expect they will once again be acquitted.
As above I find that the applicant and his family have not been threatened by the Taliban or anyone else, I do not accept that the Taliban or anyone else would seek to harm the applicant for any reason. I do not accept that as a Pashtun he will be harmed in Hyderabad on the evidence before me. On the basis of my findings above I do not accept that the applicant will be politically active, will say something that will bring him to the attention of the Taliban, the authorities or anyone else.
I have considered if the applicant will be targeted for harm as a returnee from a western country or as a person who has been westernised. As discussed with the applicant at hearing, the weight of country information indicates that Western influences are pervasive in Pakistan, especially in urban areas, that western influences remain pervasive in the large urban centres of Pakistan, that western films, and music are widely available and western branded chain stores operate throughout Pakistan. DFAT reports that Pakistanis living abroad return to Pakistan frequently to visit relatives and are not at any increased risk because they have spent time in western countries and it has no evidence indicating that individuals would be subject to violence or discrimination as a result of having spent time in western countries[3]. When I raised this information with the applicant he said that practically it was a different thing these days as they have a lot of threats from religious extremists and they attack certain people from abroad who get kidnapped, and there were a lot of examples available. I do not find this convincing. I prefer the information from the DFAT report. Many people from Pakistan spend considerable periods studying and working in Australia or other Western countries and then return home, and the evidence before me does not support that they are harmed for that reason or any reason connected with it. I find that there is no real chance or real risk of the applicant being harmed on this basis on return to Hyderabad.
[3] DFAT 3.62-3.63
Although the applicant has not claimed to fear harm on this basis, I have considered whether the applicant’s mental health symptoms will lead to him being harmed on return. I do not accept that they will lead to harm for any reason. There is no basis to conclude that this will increase a risk of harm for any of the reasons he has claimed, given my findings. Whilst there are limited mental health services in Pakistan,[4] there are mental health hospitals in Lahore and Hyderabad.[5] Anti-depressants such as Prozac are popular and widely available[6] and online sources indicate that antidepressants such as mirtazapine are produced and sold in Pakistan under various brand names.[7] This information indicates that the applicant would be able to access treatment for depression and anxiety in large cities such as Hyderabad
[4] Abbot, S & Shahzad, A 2012, ‘Millions in Pakistan suffer mental scars from militant violence, but few get help’, Associated Press, 26 July
[5] World Health Organisation 2005, ‘Mental Health Atlas’, WHO website
[6] Kamal, R, 2013, ‘Anti-anxiety pills in Pakistan: Mama’s little helper’, The Express Tribune, 26 May
[7] ‘MIRTAZEP 15MG TABLET’ (undated), OnlinePharmacy.pk; Ogbru, O. (undated), ‘Mirtazapine, Remeron, Soltab’, MedicineNet.com; Ramargon’ 2011, Lisko Pakistan
I find that there is no real chance that the applicant will be seriously harmed for reasons of his actual or imputed political opinion, ethnicity, particular social group or for any other reason on return to Hyderabad, Pakistan. Accordingly, I find that the applicant does not have a well-founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. He has not made any claims other than the claims above to fear harm on return. On the basis of the evidence and findings above I find that there is not a real risk of the applicant being significantly harmed in Hyderabad if the applicant is removed to Pakistan for any of the reasons claimed or for any other reason.
I find that there is not a real risk the applicant will suffer significant harm for any other reason as a necessary and foreseeable consequence of his removal to Pakistan. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Sean Baker
Member

[2016] AATA 4888

13 January 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction