1410947 (Refugee) - [2016] AATA 3965

1410947 (Refugee) [2016] AATA 3965 (3 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1410947
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Meena Sripathy
DATE:3 June 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 June 2016 at 4:36pm
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 first arrived in Australia [in] October 2010 on a [temporary] visa on a passport issued to him by the Government of Pakistan. [In] January 2011 he made a Protection visa application that was refused by the Department [in] April 2011 and this refusal was affirmed by the Refugee Review Tribunal (differently constituted) on1 March 2012, and has remained in Australia since then as the holder of a number of bridging visas, most recently granted in association with the present application in February 2014.
Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicant was eligible to have his claims assessed against the Complementary Protection criterion, and on that basis, he lodged a further application for a Protection visa [in] February 2014. That application was refused by a delegate of the Minister for Immigration [in] May 2014 and is the subject of the present review.
Validity of the application and the Tribunal’s jurisdiction
Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. However, in SZGIZ v MIAC (2013) 212 FCR 235, the Full Federal Court held that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicants’ claims only in relation to s.36(2)(aa).
Therefore, the issue in this case is whether 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 the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Information in his protection visa application indicates the applicant is [an age] year old man born in [District 1], Khyber Pakhtunkhwa (KPK) Pakistan. He speaks, reads and writes Urdu. He indicates he married in January 2014 in [Town 1], NSW to [his wife], [an age] year old Australian citizen. He has parents, one brother and one sister in Pakistan. He completed high school in December [year], but provides no information about occupation or employment in Pakistan. He indicates he travelled several times to [Country 1] between [specified year] and 2010 and to [another country] in 2007. He departed from Pakistan [in] January 2005 from Islamabad airport, legally on his own passport.
In a statement of claim provided with the application, it is submitted the applicant suffered torture at the hands of Taliban. He was abducted, physically beaten, harassed and kept in isolation (imprisoned). Now he has married a Christian Australian and this news has been transmitted to his village, his parents and his relatives by his family in Australia. Somehow the Taliban have also come to this news. The applicant believes the Taliban are against Muslims becoming friends, let alone getting married to Christians. He believes he would not be left alone and he would be killed in Pakistan.
In a submission attached with his application, it was submitted the applicant fears persecution on the basis of his political opinion and membership of a particular social group being people who hold views against Taliban’s religious and political ideologies, whistle blowers of its activities.
Department interview relating to present application
The applicant was interviewed by a delegate of the Minister [in] May 2014. The Tribunal has listened to the audio recording of this interview. The delegate questioned the applicant about his claims, and his fears in relation to returning to Pakistan. During the interview, the applicant said he fears the Taliban because he escaped from them. He referred to an incident in Rawalpindi where there was an attempt to kidnap him. He screamed and local people came to help so the abductors were unable to take him. He referred to having participated on three occasions at training camps run by the Taliban. He said on the third one, he escaped. He said he needed to see his parents and left and did not return. After one week back home he went to Rawalpindi where his father was working. The Taliban came to his mother’s house looking for him once in this period.
Previous protection visa
In his first protection visa application, the applicant also made claims relating to his fear of harm from the Taliban as a result of having escaped from their training camp. In his original written statement he claimed the Taliban came to his village in [year] seeking support for their ideology and activities. They took him and others away to a place, but the applicant refused to support them. They tortured him and he ran away to his father in Islamabad who told the authorities what happened. The authorities subsequently went to the places he reported and arrested, attacked and killed members of the Taliban. The applicant gave oral evidence to the delegate and Tribunal elaborating on these claims, which in various respects the Tribunal found to be inconsistent. In his evidence to the Tribunal the applicant said the Taliban preached to him at his school in [year], he went with two friends on two occasion to a neighbouring village to listen to them talk, and stayed for several days the second time. After this, when he decided he did not wish to support them, the Taliban came and abducted him and held him for 4 days. He escaped from them on this occasion and went back home. He stayed at home for one month before going to Islamabad. In Islamabad he was attacked by some boys but doesn’t know why. The Tribunal affirmed the decision under review on the basis of a number of inconsistencies in his account of what happened to him in Pakistan which led the Tribunal conclude he was not a witness of truth and to reject his claims in their entirety.
Statement attached to Ministerial intervention claim
Following his unsuccessful review to the (differently constituted) RRT, the applicant sought Ministerial intervention under s417 of the Act. He submitted a detailed statement with his request in which he claimed that he was involuntarily involved in activities of a Taliban organisation after they visited his village in [year]. He claimed he attended some sermons in February or March [year]. The applicant claimed he did not then, and still does not agree with the radical views being espoused by the group, however, some of his friends went on to join the training camps. He claimed in May [year] he was taken by force to a training camp, but he managed to escape. A few days later he was taken again by force, and this time stayed for 8-10 days and did some of the training, against his will. He managed to escape again from the camp and went to live in Islamabad where his father was working. He claimed he was attacked on a street in Islamabad and sustained severe injuries and was hospitalised for a few days. His father reported the camp training to the authorities but they took no action. The camp was later destroyed and people inside were killed. His father arranged for him to travel to [Country 1], and he went there from January to April 2010.
Evidence before the Tribunal
On 19 November 2015 a submission on behalf of the applicant was provided to the Tribunal. The submission summarises his claims as follows: The applicant attended lectures by the Taliban in February –March [year] when they came to his village in [his home village] to preach and recruit members, but he was not attracted to their ideology. Some friends attended their training camps and he went once out of curiosity. He left, but was told to return. He did not wish to return, but was forced to return and stayed in the camp against his will for a longer period, during which he was forced to undergo indoctrination and weapons training. The camp was guarded by the managed to escape. The Taliban came looking for him in [his home village] and he fled to Rawalpindi where his father was working. His father reported the kidnapping to the police but the police took no action at that stage. Shortly after he was attacked on the street in Rawalpindi and required hospitalisation. He believes the attackers were members of Taliban attempting to kidnap him. The training camp was destroyed some months later, causing the applicant to fear for his life as he heard many people had been killed at the camp. His father arranged for him to go to [Country 1] in January 2010 for his safety. He did not feel comfortable in [Country 1] and could not find work so he returned to Pakistan in April 2010. When he returned to Pakistan he went to Islamabad and undertook voluntary work but he continued to feel vulnerable and in danger because he believed the Taliban were still active in the area. He travelled to Australia with his father in October 2010, but his father returned. He did not return because he felt he could not return to [his home village] where he was known to the Taliban. His family advises him it is still not safe for him to return because the Taliban continues to ask for his whereabouts. He cannot relocate because other than Rawalpindi/Islamabad he has no relatives or family contacts outside his home area. He does not know how he can support himself. He fears his family could be targeted if he returns to Pakistan and they do not disclose his whereabouts.
It is submitted the applicant has a well founded fear of persecution on the basis of his past experience of harm by the Taliban and his political opinions which are opposed to Taliban ideology doctrine and methods. The applicant claims the police have failed to protect him in the past and they will fail to protect him in future.
Tribunal hearing
The applicant appeared before the Tribunal on 1 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant ‘s migration agent did not attend the hearing with him.
The applicant told the Tribunal his family in Pakistan comprises his mother, father, brother and one sister. His sister married in 2013 and lives in Karachi with her husband and [children]. His brother lives in his home village in [his home village in] [District 1], with his mother and is studying at [a location]. His father is [an occupation] at [a venue] in Islamabad, and has had this job from before the applicant’s birth. He worked for some years in Karachi, but was transferred to Islamabad around 1999 and has worked in Islamabad since then. He rents a place in Islamabad close to the [venue].
In Australia the applicant said he married an Australian citizen, [his wife] in 2014 and lives with her and her [children] in [Town 2]. He met his wife when he was working in [Town 1] about 2 years ago.
He is in regular contact with his family in Pakistan, and keeps informed about their lives. They are aware of his marriage in Australia and are happy for him.
The applicant has been working in Australia since around 2011 in various jobs in [a specified] industry in [another town] and [Town 1]. He is not working at present because he does not have work permission.
The applicant gave the following evidence about what happened to him in Pakistan. He had trouble with the Taliban. In [year] they came to his village to spread their ideology and were asking people to join the jihad. They came to the mosque first and then also to schools. He went with two friends, [Friend 1] and [Friend 2] to a place outside their village called [Town 3] to hear the Taliban speak. They went with Taliban people, in their vehicle to their camp. The first time he went he was there for only one day. He listen to them speak and talk about what they do. He left from here by local transport back to his village. His friends remained at the camp. About one or two days later the Taliban people brought him back to the same place and he stayed on this occasion for about 2 weeks. In this time he participated in their training, including weapons training. When asked why he went back, he said he was curious at that time and was wondering if they were right in what they were saying. While he was there he realised he did not agree with them and what they wanted to do and so he didn’t want to continue. When he told them, they said he had to stay.
The applicant described the place he was at as like a playing field. People were staying in the mosque nearby and there were houses. He said it was open and did not indicate there were any guards. One day, during the evening prayer, when people were coming and going, he left. He took a local bus and returned to his village. After that he never returned to this place. About two days later the same men from the Taliban came to his house and tried to make him return. He refused. The local village people came out and prevented them from taking him with them. After about one week he went to stay with his father in Islamabad. This was around December [year].
About 2 weeks after he arrived in Islamabad some people came to him on the street while he was out buying bread. The applicant said they told him they were there to take him back to the camp. Local people interrupted them by shouting and they were unsuccessful in taking him. After this, he went to the police with his father and made a report. When asked if he has a copy of this report he said he provided it previously. He did not have a copy with him but he can provide it. He reported the kidnap incident and also provided information about the training camp.
After this incident he travelled to [Country 1] with his father. His father returned after one week. When asked why he went to [Country 1], he said he had been going there every year since [year] for two weeks just for a holiday. The applicant provided his passport which indicated an exist stamp [in] January 2010 and an entry [in] April 2010. When asked where his visa for [Country 1] is, the applicant said it was in his previous passport which was attached to this one when he travelled. In [Country 1] he stayed with his father’s friend. He did not seek asylum there because he was afraid by what people told him. He was told that he would be detained. This is the reason he did not seek protection in [Country 1].
After he returned to Islamabad in April he began working for a charity organisation that provided assistance to [two vulnerable target groups]. He worked with this organisation until he left for Australia in October 2010. After returning from [Country 1], he had no further incidents. He heard from his mother that the Taliban were still coming looking for him in [District 1].
No one else in his family has experienced any harm or incidents. They continue to live in the family home. His father travelled with him to Australia in October but returned after 2 weeks. His father continues to live and work at the same place as before.
The Tribunal asked the applicant who he fears will harm him if he returns to Pakistan. He said he fears harm from the Taliban. When asked why he believes they will harm him, he said he fears they blame him for the attack on the camp that occurred soon after he made his police report. When asked how he knew of the attack on the camp, the applicant said initially that the men who came for him in Islamabad told him that he caused their camp to be destroyed. When it was put to him that this is inconsistent with his evidence that he reported it to the police after this incident, the applicant revised his evidence and said when the men came they were saying he will report the location and that is why they came to take him back. He clarified that he heard about the destruction of the camp while he was in [Country 1]. He has no other evidence of the destruction of the camp.
The Tribunal discussed with the applicant that his above account of his experiences with the Taliban is inconsistent in a number of significant areas with the account he gave to the delegate and in his previous application. In response the applicant said that his mental health is not good. He referred to having been in hospital some 6 months ago on account of his mental health. He said he gets mixed up about details because of this. The Tribunal noted that no evidence is before the Tribunal to support this explanation. It indicated that given that these incidents are central to his claims it would expect him to be able to give a consistent account and there are not just some but many inconsistencies about important details in his various accounts, for example relating to how many times he went to the camp, how he travelled there and whether or not he was taken forcibly. The Tribunal indicated that it would put details of the inconsistencies to him in writing following the hearing and give him an opportunity to provide a response, and invited him to provide any supporting evidence that he wishes to rely on at that time.
The Tribunal asked the applicant if there are any other reasons he fears return to Pakistan. He said he fears he will be victim of a general terrorist attack. The Tribunal discussed with the applicant country information that indicates, while there are terrorist incidents in Pakistan, the number of incidents is in decline and that there are a number of state policies and laws dealing with terrorism. It put to him that some information indicates a reduction of 70% in the number of terrorist attacks across Pakistan in 2015 and a 50% reduction in the number of terrorist related fatalities. In response the applicant said that despite this information Pakistan is not 100% safe and he is still afraid.
When asked if there were any other reasons if fears harm, the applicant indicated there was not. The Tribunal pointed out that he referred in his statement of claim to his fear of harm on the basis of having married a Christian woman. In response the applicant confirmed that he has no fear of harm on this basis. He is only concerned, on the basis of what people have told him, that if he returns to Pakistan he will not be able to come back to Australia. He is concerned that he would be separated from his family here as his wife does not wish to come to Pakistan.

When asked why it is not reasonable for him to live elsewhere in Pakistan, the applicant said he cannot relocate because nowhere is safe in Pakistan. There are attacks and bomb blasts everywhere. He is concerned that his wife and her children cannot come to Pakistan. He also referred to difficulties he may have obtaining a passport to travel to Pakistan as his current passport has expired.
Following the hearing the Tribunal wrote to the applicant and invited him to comment on certain information which if relied on may lead it to affirm the decision. The applicant was invited to comment on the following information:
·Information contained in a statement provided to the Department in his 2011 application for protection:
- Information he gave to the (differently constituted) Tribunal in the review of that application
- In his evidence to the delegate in the present application:
The Tribunal explained that this information was relevant because it was inconsistent in significant respects to the evidence he gave to the present Tribunal and, subject to his comments or response, these inconsistencies would lead the Tribunal to find that his evidence is not credible and it may not accept his claims relating to whether the Taliban came to his village and whether he participated in, and escaped from their training camps and the Tribunal may find that he does not have a well founded fear of persecution and there are no substantial reasons for believing there is a real risk that he will suffer significant harm in Pakistan.
On 17 December 2015 the Tribunal received a letter from the applicant’s representative advising that they have not been able to obtain instructions from the applicant to date and therefore are unable to provide any comments or response to the Tribunal’s invitation. No request was made for an extension of time, and accordingly none was given. To date the Tribunal has received no response or further communication from the applicant or his representative.
Independent information
Department of Foreign Affairs and Trade (DFAT) Country Report for Pakistan 14 April 2015 states the following in relation to the security situation generally:
2.23 Pakistan has struggled with security threats from terrorist, militant and sectarian groups. The rugged terrain and porous borders in much of Pakistan have long presented a particular challenge for maintaining security and enforcing the state’s writ, a situation which continues today. Pakistan’s heterogeneous ethnic and religious composition continues to be a source of communal and sectarian violence.
2.24 According to information provided to Pakistan’s Supreme Court, the Taliban insurgency and the war on terrorism has resulted in 49,000 deaths and displaced millions of people in Pakistan since 2001. Conflict in the FATA and Khyber Pakhtunkhwa is an important factor for internal displacement and external migration. Although these figures change over time, around one million people had been internally displaced as a result of the Pakistan military’s ongoing offensive in the North Waziristan Agency of FATA, which commenced in June 2014. Insecurity in these areas contributes to many families’ decisions to leave for safer areas.
2.25 Because Pakistan is a diverse country there are a number of areas within Pakistan which remain free from militant, sectarian or politically-motivated violence, particularly outside of the FATA, Khyber Pakhtunkhwa and Balochistan. Urban centres tend to be more secure than rural areas, especially in ‘cantonments’ which are controlled by security forces.
And in relation to militant groups DFAT states:
2.27 The most potent security threat in Pakistan remains the mostly-Pashtun Taliban insurgency based in the FATA and parts of Khyber Pakhtunkhwa which operates under the banner of the Tehreek-e Taliban Pakistan (TTP). The TTP represents a loose network of Sunni militants groups, originally formed in 2007. Although they are ideologically aligned, the TTP maintains an identity distinct from the Afghan Taliban, which is widely accepted to have an operational base in Quetta, the capital of Balochistan province. Open sources also suggest senior members of the Afghan Taliban have relocated to Karachi.
2.28 The TTP has carried out a number of high-profile attacks in many parts of Pakistan against government security forces and institutions, political rivals, civilian infrastructure and against non-Sunni minorities. This has included direct attacks using small arms, suicide bombings, car bombs, improvised explosive devices and complex attacks involving a combination of these methods. For example, the TTP has conducted complex attacks against the Pakistani military’s General Headquarters in Rawalpindi in 2010, the Pakistan Naval Station Mehran in Karachi in 2011 and against Karachi Airport in June 2014.
On state protection, the 2015 DFAT Report, assessed that state protection can be limited by a general lack of resources and, in some cases, political will. Militant attacks against police, security forces and the judiciary make it difficult for Pakistani governments to exercise effective control in some areas, such as the Federally Administered Tribal Areas (FATA) and remote areas of Khyber Pakhtunkhwa and Balochistan.[1]
[1] DFAT Country Report Pakistan (14 April 2015), paragraph 5.1
In December 2014, in response to the TTP’s attack on an army run school in Peshawar, the government formulated a National Action Plan (NAP) to deal with terrorism.[2] The NAP followed the earlier formulation of the National Internal Security Policy (NISP) in February 2014 and the passing of the Protection of Pakistan Act in July 2014 (PPA). The latter provided some police officers and rangers with sweeping new powers, including the right, in certain circumstances, ‘to shoot suspects on sight, arrest suspects without a warrant and withhold information about where detainees are being held or what they are being charged with’. As with the NISP, the NAP includes among its provisions the goals of acting against sectarian groups, taking action against hate speech, registering madrasas, and the protection of religious minorities. Taken together, these constitute Pakistan’s current policy settings regarding its response to, inter alia, increased sectarian violence.
[2] International Crisis Group 2015, Revisiting Counter-Terrorism Strategies in Pakistan Opportunities and Pitfalls, 22 July, p.14 < Accessed 4 September <CISEC96CF12910>
State security forces, led particularly by the Rangers’ operations in Karachi and the military’s offensive in the FATA, have been the major instruments through which the NAP has been enforced, although police operating with new powers have been working with Rangers in Karachi and Frontier Corps in Balochistan, particularly Quetta.[3]
[3] International Crisis Group 2015, Revisiting Counter-Terrorism Strategies in Pakistan Opportunities and Pitfalls, 22 July, p.21
The Army was also used in 2014 to secure Islamabad in the wake of political demonstrations by opposition parties.[4]
[4] Haider, M 2014, ‘Army deployed in Islamabad from today’, Dawn, 01 August < Accessed 18 September 2015 <CX1B9ECAB11444>
In January 2016, DFAT issued an updated Country Information Report for Pakistan, providing the following information regarding the security situation:
2.28      Pakistan continues to face security threats from terrorist, militant and sectarian groups. Since the commencement of the assertive counter-terrorism military operation Zarb-e-Azb in June 2014, however, Pakistan military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015. Militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted, and no longer have access to safe-havens in Khyber and North Waziristan Agencies. The Pakistan Military has indicated an intention to remain in North Waziristan for some years to come. However, DFAT understands that militant sleeper cells remain in many urban centres and continue to target state and civilian infrastructure. The rugged terrain and porous borders in Pakistan’s tribal areas and between Pakistan and Afghanistan present ongoing challenges for maintaining security and enforcing the state’s writ.
2.29      The Taliban insurgency and the war on terrorism have claimed more than 57,000 lives since 2001. Conflict in the FATA and Khyber Pakhtunkhwa remains an important factor for internal displacement and external migration. Approximately 1.6 million people were displaced by security operations in Pakistan’s north-west region from January-September 2015, for example. Many of these Temporary Displaced Persons (TDPs) have begun to voluntarily return to the FATA because of improvements in security (see ‘Internal
Relocation’ below).
2.30      The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA, and varies depending on the location of Pakistan military operations. Urban centres also tend to be more secure than rural areas (see ‘Internal Relocation’ below), with the exception of Karachi. This includes ‘cantonments,’ or secured areas, although militant groups have also specifically targeted these areas (see ‘Militant Groups’ below).
2.31      Organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan. This is exacerbated by the proliferation of licenced and un-licenced small arms in Pakistan. According to the United Nations Office on Drugs and Crime, Pakistan’s homicide rate was the highest in South Asia in 2012 (7.7 per 100,000 people). While exact figures are not available, Operation Zarb-e-Azb, which has expanded to encompass paramilitary Ranger operations in Karachi, has substantially reduced the level of serious crime – including homicide – throughout Pakistan.
Other sources also confirm that the overall security situation has improved. For example, [Country 1] Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation[5] reports that the Austrian fact Finding Mission to Pakistan undertaken in July 2015 found an overall improved security situation since its previous mission in 2013. The 2014 report of the Pakistani Institute for Peace Studies (PIPS) indicated a 30% decrease in the number of terrorist attacks carried out by militant, nationalist/insurgent and violent sectarian groups in Pakistan in 2014 compared to 2013[6].
[5] UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015
[6] European Asylum Support Office, Country of Origin Information Report Pakistan Country Overview, at p53 citing PIPS, 2014, Pakistan Security Report, 2015, p. 7.
As of September 2015 there had been a 70 per cent reduction in the number of terrorist attacks compared with the same period last year and, according to the South Asia Terrorism Portal, an almost 50 per cent reduction in the number of terrorism related fatalities.[7] Arif Rafiq has noted that if the trend continued ‘the number of Pakistani civilians killed in terrorist attacks this year will be the lowest since 2006’, ie., before the emergence of the TTP in Pakistan.438 While the number of people killed in sectarian attacks has increased in 2015 from 2014, Arif Rafiq points out that the number of attacks has in fact halved, with ‘two gruesome massacres’ responsible for the high fatality rate. Rafiq attributes the decline in the number of attacks to, among other things, the country wide implementation of the NAP.[8]
[7] Craig, T 2015, ‘In Pakistan, a prime minister and a country rebound — at least for now’, The Washington Post , 08 September < Accessed 15 September 2015 <CXBD6A0DE13363>
[8] Rafiq, A 2015, ‘Operation Karachi: Pakistan's Military Retakes the City’, The National Interest, 24 August < Accessed 15 September 2015 <CXBD6A0DE12442>
FINDINGS AND REASONS
As indicated in paragraphs 2 and 4 above, the applicant has previously been refused a Protection visa on the basis of the Refugees Convention. Applying the reasoning in SZGIZ, as endorsed in AMA 15 v MIBP, the Tribunal finds that it does not have the power to consider the applicant’s claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.
A summary of the relevant law is set out in the Attachment.
Nationality
On the basis of his evidence to the Tribunal, and his Pakistani passport, and the absence of any other information to cast doubt about the validity of this documentation, the Tribunal accepts the applicant is a national of Pakistan and considers Pakistan is his country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The Tribunal notes that in the statement of claim provided with his present application he submitted he suffered torture at the hands of Taliban; he was abducted, physically beaten, harassed and kept in isolation (imprisoned); and his marriage in Australia to a Christian Australian has become known to the Taliban and he believes he would be killed in Pakistan. During the hearing, the applicant told the Tribunal he fears return to Pakistan because he escaped from a Taliban training camp and he reported its location to the police and he fears they believe he is responsible for an attack on that camp. The applicant submitted he also fears harm from general terrorist attacks and violence throughout Pakistan. When asked if there is any other reason he fears harm in Pakistan, he said there is not. When asked specifically if he has any fears relating to his marriage in Australia, he confirmed that he does not. His only fear in this respect is separation from his family here if he is forced to return because he believes he will not be permitted to return to Australia and his wife does not wish to come to Pakistan.
The Tribunal observes that some of the applicant’s claims in the present application are similar to the claims made in his previous protection application, but there are a number of significant differences, inconsistencies and contradictions in his evidence about these claims given previously and in this application. These differences, inconsistencies and contradictions are discussed in more detail below and, considered cumulatively, lead the Tribunal to doubt the reliability and credibility of the applicant’s oral evidence and this is reflected in the Tribunal’s adverse findings in relation to the applicant’s specific claims.
In reaching this conclusion about the credibility of the applicant’s evidence and claim the Tribunal has taken into consideration that the applicant has given oral evidence about his claims now on four separate occasions, each time with the assistance of different interpreters and there are therefore multiple opportunities for inconsistencies, contradictions and omissions to arise in his re-telling of his story. The Tribunal is also mindful of the passage of time between the applications and since the events that he is claiming occurred. However, having considered all the evidence before it, and taking into account the above circumstances, the Tribunal makes the following findings in relation to the applicant’s claims and concludes that it is not satisfied he will face a real risk of significant harm if returned to Pakistan for the reasons that follow.
Claims regarding his attendance and escape from Taliban training camp

The Tribunal does not accept the applicant’s claims relating to his experiences with the Taliban. He gave evidence to this Tribunal that, after the Taliban came to his village in [year] and preached in their mosques and schools, he went with some friends to a neighbouring village to find out more about their training camps. He told the Tribunal he travelled there in a Taliban vehicle, with his two friends, whom he named as [Friend 1] and [Friend 2]. He said he returned home that same day, alone, and his friends remained at the camp. He said a few days later, the same group of Taliban men came in their vehicle and brought him back to the camp and he remained there for 2 weeks, and underwent military training. He said it was in this two week period that he realised he did not agree with what they were teaching and training and he decided to leave. He said he left one day during evening prayer. He said people were coming and going and he was able to slip out. His description of the place he stayed at for 2 weeks was that it was like a playing field, and there was a mosque where he and other stayed, and houses. When asked by the Tribunal if there any guards in this place he indicated there was not. He said he never returned to this place after that. A few days later the same men from the Taliban came to his house and tried to make him return but he refused. He went to stay with his father in Islamabad after about one week. He told the Tribunal two weeks later, when he was in Islamabad he was approached by some people on the street who told them they were there to take him back to the camp, but they were unsuccessful in removing him because of intervention by local people. The applicant claimed that his father made a police report when he told him about this incident and that he also reported the earlier kidnapping and provided information about the training camp.
His above description differs significantly from accounts of these events provided at different points in time in his previous application and even from the account he gave to the delegate and the account provided to the Tribunal in written submissions lodged by his representative. In particular, in his previous application as set out above, he variously said that his first visit to the Taliban came was by force (in written statement) or voluntarily in a public van (to the differently constituted Tribunal). He also variously said in previous accounts that he attended the Taliban camp on two or three occasions, and specified different number of days he was there. He also gave different names of the friends who he went with to the camp in his previous application and this application and has provided inconsistent evidence about whether the camp he escaped from was guarded or not. He gave different accounts about when he went to Islamabad and what happened to him there. He also gave internally inconsistent evidence about the timing of the alleged attack on the military camp, telling the Tribunal that the men who came to attack him in Islamabad told him he was the cause of the attack on the military camp, whereas previously he had said he only reported the military camp to the police after this attack on him in Islamabad.
A cumulative consideration of all of these inconsistencies and contradictions about how many times he attended the Taliban camp, how he went there, with whom he travelled, whether or not he was taken by force, how he escaped and when he went to Islamabad and what happened to him there, leads the Tribunal to have doubts about the applicant’s credibility and on this basis it rejects his claims. In doing so the Tribunal has considered the applicant’s explanation given at the hearing that he has experienced problems with his mental health and this affects his ability to recall accurate details. The Tribunal pointed out to him that he has not provided any evidence of any health issue and how and why it is relevant to date. The applicant was given a further opportunity to comment or respond on the inconsistent evidence in writing following the hearing. He has not provided any response or submitted any further evidence to date. The Tribunal does not accept that the applicant attended a Taliban training camp in May [year] on one or more than one occasion, voluntarily or by force, or that he underwent any military training or was physically beaten, harassed, kept in isolation or otherwise mistreated there by Taliban or anyone else. Consequently it also does not accept that he escaped from the Taliban or a military camp, or that he or his father reported the Taliban military camp to the police or any authority. Having rejected these claims, and in the absence of any other independent evidence, the Tribunal does not accept the applicant’s claim that a Taliban military camp in his area was attacked or that the Taliban had or has any reason to believe the applicant is responsible, or has any interest in the applicant for this, or any other, reason.
Additionally, the Tribunal also takes the following further matters into account in rejecting his claims and considering whether there are substantial grounds for believing there is a real risk the applicant will suffer significant harm in future in Pakistan. There is no evidence of a police report about the claimed attack on the applicant in Islamabad, his abduction or report of a training camp, as claimed by the applicant. When asked about this at the hearing, the applicant referred to having provided it previously and indicated that he would provide it to the Tribunal. To date he has not provided this document, and there is evidence of this document in the material before the Tribunal. The Tribunal also observes the applicant referred to being hospitalised for treatment for his injuries in Rawalpindi, but has provided no hospital records to support this claim.
The applicant told the Tribunal he travelled to [Country 1] in January 2010, which is confirmed in information contained in his passport, yet he returned to Pakistan in April 2010. The Tribunal considers if he was genuinely fearful for his life following these events, he would have taken the opportunity to seek asylum there, but he did not. Following his return to Pakistan in April 2010, the applicant commenced working for a charity organisation, and experienced no further incidents or threats from the Taliban or anyone else. On his own evidence, no other member of his family have experienced any harm or incidents since then. They continue to live in the same family home. His father has continued to live and work at the same place as before without incident. His father accompanied him to Australia in October 2010 and returned to Pakistan after this, suggesting that he did not have a subjective far for his own life at this point in time.
Claims of fear of harm from general terrorist attacks in Pakistan
The applicant told the Tribunal he fears he will be a victim of a general terrorist attack in Pakistan. At the hearing the Tribunal put to him independent information which, while acknowledging a history of terrorism and security threats in Pakistan, indicates a significant decline in the number of terrorism incidents in recent times and the introduction and enforcement of a number of state policies and laws dealing with terrorism. The applicant’s response to this was that he remains afraid because Pakistan is still not 100% safe.
The Tribunal has carefully considered independent evidence regarding security and violence in Pakistan generally, in addition to the applicant’s above response. The Tribunal accepts that Pakistan has for some time, and continues, to face security threats from terrorist, militant and sectarian groups and that people at large may feel a sense of insecurity as a result of incidents of terrorist and sectarian violence. However, a number of sources confirm that the overall security situation in Pakistan has significantly improved in recent years, particularly since the commencement of counter-terrorism military operations around the country from mid-2014, which has been responsible for a substantial reduction in the number of sectarian and terrorist attacks and generalised violence throughout the country since then. The most recent information from DFAT indicates there has been a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015; that militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted; and Punjab remains relatively free of sectarian and generalised violence. Notwithstanding this, the Tribunal also accepts that, despite this overall downward trend in violence, the security situation varies between Pakistan’s provinces and autonomous regions and while Punjab remains relatively free of sectarian and generalised violence (although there have been a number of significant security incidents in 2015 and 2016, including in Lahore[9]), the level of violence is greater in other areas including Khyber Pakhtunkhwa. The targets of the majority of these attacks, however, appear to be security forces, law enforcement, members of sectarian groups and/or minority communities and other specifically targeted groups none of which the applicant appears to come within. Also, having regard to this information, in respect of fear of harm from generalised violence, the Tribunal considers that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by him personally and on that basis there is taken not to be a real risk of significant harm in respect of him under s36(2B) of the Act.
Claims regarding applicant’s marriage in Australia to a Christian woman
[9] Eg. most recently, Lahore attack: Pakistan 'detains 200' after Easter blast, BBC News , 29 March 2016 >
The submission from his representative provided with his written application, stated that news of the applicant’s marriage to a Christian in Australia has been transmitted to his native village, his parents and his relatives as well as to Taliban terrorists and he fears harm for this reason.
No further evidence in support of this claim or elaboration of this claim was provided in his application, to the Department or to the Tribunal. The Tribunal observes that the applicant’s wife did not attend the hearing with him. There is no evidence of his marriage before the Tribunal, such as a marriage certificate.
When specifically asked about it at the Tribunal hearing, the applicant stated that he has no fear of harm on this basis. His only concern arising from his marriage is that he does not know if he will be able to come back to Australia if he returns to Pakistan and he is concerned about being separated from his family as his wife does not wish to come to Pakistan.
Given that the applicant has resiled from this claim, the Tribunal is not satisfied that there is a real risk he will suffer significant harm on the basis of his marriage to a Christian in Australia. It has, however, considered his claim about separation from his family. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[10] Recently in SZSNX v MIBP[11] the Court applied SZRSN to uphold Tribunal findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm. Having regard to this judicial authority, the Tribunal finds that separation from family does not amount to significant harm within the meaning of this term, and accordingly the Tribunal is not satisfied that there is a real risk he will suffer significant harm for this reason.
[10] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65].
[11] [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72],
For the reasons given above, and having considered his claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if removed from Australia to Pakistan and 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.
Meena Sripathy
Member

ATTACHMENT
RELEVANT LAW
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.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.