1412164 (Refugee)

[2015] AATA 3984

1412164 (Refugee) [2015] AATA 3984 (6 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412164

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Giles Short

DATE:6 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 December 2015 at 6:10pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Taliban – particular social group – perceived secret agency employees – Pakistani Taliban allegations of spying – threatening letters and calls – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R(1)(b), 499
Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. [The applicant] is a citizen of Pakistan.  He comes originally from Karak in Khyber Pakhtunkhwa but he has said that he has lived in Islamabad since around [year] when he started working for [Agency 1] there, initially as an [occupation] and subsequently as [an occupation 1] and then [an occupation 2].  He had postings to [Country 1], [Country 2] and most recently to [Australia].  At the conclusion of that posting he decided to remain in Australia and he applied for a protection visa claiming that he feared being harmed by the Taliban.  He said that he had been imputed with a political opinion in support of American and Pakistani secret agencies such as the CIA and the ISI (Inter Services Intelligence, the main domestic intelligence agency in Pakistan).

2. In a covering submission [the applicant’s] representatives submitted that his claims fell under the Convention grounds of political opinion, religion and membership of a particular social group.  Besides repeating his claim that he had been imputed by the Taliban with a political opinion in support of Pakistani and American security agencies such as the ISI and the CIA they submitted that the Taliban viewed opponents as working against their goal of enforcing Sharia law and that [the applicant] would therefore be viewed as a ‘kafir’ or non-believer.  They also submitted that [the applicant] was perceived to be a member of the particular social groups of ‘Pakistani secret agency employees’ and ‘American secret agency employees’.

3. [The applicant’s] wife and his [children] indicated that they did not have claims of their own and that they were applying as members of his family unit.  The family’s applications for protection visas were refused by a delegate of the Minister for Immigration and they have applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention if he returns to Pakistan and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   [The applicant’s] claims

4. [The applicant] is aged in his [age range].  He has said that he completed [number] years of education in Karak.  As referred to above, he has said that he moved to Islamabad when he started working for [Agency 1] in [year].  He has said that he was initially employed as an [occupation].  He was posted to [an office] in [Country 1] from November 1995 until December 1999 as [an occupation 1], [involving certain duties].  He has said that when he was employed again at [Agency 1] in Islamabad between January 2000 and October 2003 a post as [an occupation 2] became available and he changed his designation to [occupation 2].  He has said that he [accompanied] officers working at [Agency 1] to other [offices] in Islamabad.

5. [The applicant] has said that he was employed as [an occupation 2] at the [their office] in [Country 2] from November 2003 until February 2007.  When [the applicant] was interviewed by the primary decision-maker in relation to his application his representative submitted that it was reasonable to assume that he would have been [accompanying] [Official A] to meetings with the CIA or the ISI.  [The applicant] himself has not made that claim.  He said at the hearing before me that he had [accompanied] [Official A] to other offices, like the Americans, but that he had not known whom [Official A] had been meeting.  With regard to the Americans he said that they had had [a facility] in [Country 2] and that he had sometimes [accompanied] [Official A] there.  He said that he had also [accompanied] [Official A] to a place where they had had vehicles which had had United Nations written on them.  After I referred to his representatives’ submission that he had had to [accompany] [Official A] to meetings with the CIA he said that he had had to [accompany] [Official A] to different offices but as [an occupation 2] he had not known which offices these had been.  He said that they had not had any signboards outside.  He agreed that the main function of the [office] in [Country 2] was [details deleted].[1]

   [1] [Deleted.]

6. [The applicant] has said that when he was employed again in Islamabad from March 2007 until August 2008 he resumed his duties [including accompanying] officials to different offices in Islamabad.  He has said that as [an occupation 2] at the [specified office] in [Australia] from September 2008 until January 2013 he [performed specific duties]: he has said that [some staff accompanied] [Official B] and [others performed other duties] but that he [accompanied] [Official B] when required.  [The applicant] has said that his posting in [Australia] was due to end in September 2012 but that his replacement was delayed so it was extended until [January] 2013.  In a statutory declaration accompanying his application for a protection visa he said that he had decided to wait until his contact expired before applying for protection.  He eventually applied on 19 February 2013.

7. [The applicant] has said that his father is a retired [and] that his parents are living at a [house] in Islamabad which is in his name and where he has lived since around the time he returned to Islamabad from his posting to [Country 1] in 2000.  He returned to Pakistan on a number of occasions while he was in Australia, most recently from [April] 2012 until [May] 2012.  When he was interviewed by the primary decision-maker he said that he had returned to Pakistan in April 2012 because his father-in-law had died.  He said that he had stayed at his family home in Islamabad when he had returned but he said that he had not shown himself to anyone and sometimes he had gone to his [sibling]’s house as well.  He said that when he had gone to the village to visit the grave of his father-in-law he had heard other people say that it was dangerous for him so he had left the village during the night and had returned to Islamabad.

8. In the statutory declaration accompanying his application for a protection visa [the applicant] said that after Osama bin Laden had been killed in May 2011 his father had started to receive telephone calls from unidentified persons asking where he was.  When he was interviewed by the primary decision-maker he said that neither he nor his father had received any threats prior to May 2011.  He said that during May 2011 his father had received three telephone calls and after that his father had changed his telephone number.  After a break to consult his representative [the applicant] said that the telephone calls which his father had received in May 2011 had not been threatening telephone calls: the callers had simply been asking his father where he was.

9. In the statutory declaration accompanying his application for a protection visa [the applicant] said that his father had subsequently received a letter dated [in] October 2012 from the Taliban (a copy of which he produced together with a translation).  The letter accuses [the applicant] of working for the secret agencies of Pakistan and America and tells him to attend the office of the Taliban in [a named district] otherwise he and his family members will be murdered.  [The applicant] said that his father had made a report to the police in Islamabad [in] January 2013 and he also produced a copy of this report together with a translation.  The report says that his parents have been constantly receiving threatening telephone calls from unknown telephone numbers and it also refers to the letter from the Taliban.

10. [The applicant] said that the police were unable to provide his parents with any protection.  He added that the police were corrupt, inefficient and poorly trained and that they were unable and unwilling to provide protection to citizens like him.  He said that he feared returning to Pakistan and being harmed by the Taliban because he had been imputed with a political opinion in support of American and Pakistani secret agencies such as the ISI and the CIA.  He said that he could not return to his home in Islamabad because the Taliban knew where he and his family lived and that there was nowhere else in Pakistan to which he could relocate.  In their covering submission [the applicant’s] representatives referred to information concerning the Taliban in Pakistan having killed accused spies in the tribal areas of Pakistan such as North and South Waziristan.

11. Under cover of a letter dated 21 May 2013 [the applicant’s] representatives produced a further statutory declaration made by [the applicant] that day attaching a copy of a second threatening letter from the Taliban dated [in] February 2013 (together with a translation).  [The applicant] said that this letter had been posted to his parents’ address in Islamabad where he himself had lived prior to his posting to Australia.  According to the translation the letter says that ‘[deleted]’.

12. When he was interviewed by the primary decision-maker [the applicant] said that he did not know the reason why the Taliban had singled him out to threaten him.  He said that his life would be in danger in Pakistan because he had worked in [Country 1], [Country 2] and Australia.  His representative submitted that [the applicant’s] position was different from that of other [people] who had worked for [Agency 1] because he had been in [Country 2] for four years.  He submitted that, given the links between the ISI and the Taliban, it was reasonable to assume that the Taliban were aware of [the applicant’s] involvement in [Country 2].  He submitted that there had been increased attacks, including drone attacks, in [a named district] in 2012, and he referred to evidence that the Taliban targeted people whom they believed to be spies in the Federally Administered Tribal Areas (FATA).

13. In a further submission dated 8 July 2013 [the applicant’s] representatives submitted that the Taliban had been hunting for spies after Osama bin Laden had been killed.  They also referred to the fact that the Pakistani Taliban (the Tehreek-e-Taliban Pakistan or TTP) had executed four men whom they had accused of spying for Indian and Jewish intelligence agencies in the district of Karak in February 2011.  They submitted that at the time at which [the applicant] claimed to have received the first letter from the Taliban, in October 2012, the Taliban had been actively targeting alleged spies, referring to a media report dated 11 October 2012 stating that scores of victims had been killed in different tribal areas of Pakistan in the preceding few years.  They drew attention to the fact that the letters which [the applicant] had produced purported to be from the Taliban in the [named district] and they referred to media reports relating to the execution of alleged spies in the [that district].

14. [The applicant’s] representatives reiterated their submission that [the applicant] had been imputed by the Taliban with a political opinion in support of Pakistani and American security agencies.  They submitted that this arose from his employment as [an occupation 2] at the [office] in [Country 2] from November 2003 until February 2007.  They submitted that it was likely that [the applicant] would have had to [accompany] [Official A] to meetings with the CIA, ISI, ISAF or the Afghan Government during his employment.  They referred to the fact that the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (17 December 2010) had said that there was a systematic and sustained campaign by armed anti-government groups in [Country 2] to target civilians associated with, or perceived as supporting, the [Country 2] Government or the international community.  Given that [the applicant] is from Pakistan the relevance of this submission is not immediately obvious.  They also referred to a further media report relating to the execution of alleged spies by the Pakistani Taliban, in this instance in North Waziristan.

15. In a submission to the Tribunal dated 8 May 2015 [the applicant’s] representatives denied that he was claiming that the Taliban targeted [people] attached to [similar agencies].  They submitted that this did not preclude the possibility that [someone with the applicant’s role] for [his agency] could be, or could be imputed to be, a spy.  They asked the Tribunal to have regard to what they said was [the applicant’s] ‘unique employment history’ and they referred once again to media reports that innocent civilians had been killed by the Pakistani Taliban in tribal areas on suspicion that they were spies.

16. With regard to the documents which [the applicant] had produced they submitted that it could be drawn from the letter from the Taliban dated [in] October 2012 that the Taliban had received information about [the applicant].  They submitted that ‘the timing of the letter occurred with the background of Osama bin Laden having been killed and the Taliban having a specialised cell to hunt spies’.  They referred to the fact that the letters which [the applicant] had produced purported to be from the Taliban in the [named district] and they submitted that the [named district] had been heavily affected by drone and military strikes and that it was an area in which accused spies had been targeted.  They also referred to the ‘relative proximity’ of Karak to the [named district].

17. [The applicant’s] representatives submitted that [the applicant] had found the calls in May 2011 to be worrying but that he had not suspected that they might have been from the Taliban until he had received the first letter, dated [in] October 2012, from the Taliban.  In corroboration of [the applicant’s] evidence that he had returned to Pakistan in 2012 because his father-in-law had died they produced a copy of a death certificate indicating that his father-in-law had died in Islamabad [in] March 2012.  They said that [the applicant] had taken safety precautions when he had returned to Pakistan because of the telephone calls but that it had been in hindsight that he had viewed the telephone calls as threatening.

    Discussion of [the applicant’s] claims

18. At the hearing before me on 15 May 2015 [the applicant] said that nothing relevant to his application had happened since the interview with the primary decision-maker on 1 July 2013.  He said that his family in Pakistan had not received any further letters from the Taliban after the two which he had produced dated [in] October 2012 and [in] February 2013.

19. I referred to [the applicant’s] evidence that after Osama bin Laden had been killed in May 2011 his father had started to receive telephone calls from unidentified persons asking where he was.  [The applicant] said that his father had told him about these calls in May 2011.  He said that his father had not told these people where he was but he then said that his father had told these people that he was abroad.  He said that his father had only received two or three such telephone calls.  I referred to [the applicant’s] evidence that after this his father had changed his telephone number and I asked him why his father would have done this if these people had simply been asking where he was and his father had told them that he was abroad.  [The applicant] said that if they needed to find someone they could ask in the area.  He said that they must have asked and been told that he was abroad.  He said that when they had said to his father that he was abroad his father had confirmed this.

20. I asked [the applicant] again why his father had felt it necessary to change his telephone number.  [The applicant] said that his father had changed his telephone number because they had been bothering his father again and again.  I put to him that he had said that there had only been three of these telephone calls.  [The applicant] said that there had been three calls but later on there had been some other number and his father had thought that maybe they could be the same people so being fearful he had changed the number.  He then confirmed that there had only been two or three telephone calls and that after this his father had changed his telephone number.  He confirmed that he claimed that after this no further telephone calls had been received.

21. I put to [the applicant] that according to the translation which he had produced of the report which his father had made to the police [in] January 2013 his father had reported to the police that: ‘We are constantly receiving threading [sic] phone calls which are from un-known numbers’.  I noted that the reference to ‘threading’ was presumably a mistake for threatening.  I put to him that he had said that his father had only received three calls and that they had not been threatening.  [The applicant] said that he did not know why his father had told the police that he was constantly receiving threatening telephone calls from unknown numbers.  He said that only his father would know.  I put to him that he had produced this report to corroborate his evidence.  [The applicant] said that his father had lodged the report.  He said that his father had not mentioned any other phone calls apart from the three we had already discussed.

22. I asked [the applicant] how his father had received the letter dated [in] October 2012 from the Taliban.  [The applicant] said that it had been thrown under the house door.  He said that the post was not delivered to their address.  I put to him that in his statutory declaration made on 21 May 2013 he had said that the second letter had been posted to his parents’ address in Islamabad.  [The applicant] said that this letter too had been thrown under the house door.  He said that his father had not taken the first letter seriously and had not reported it to the police at the time.  He said that his father had sent him a copy of the letter and he had been scared but that he had not reported the fact that he had received this letter to his superiors in [Australia] because it had said that he had been spying for the CIA and the ISI and he had been afraid that he would be sent back to Islamabad and that there would be an inquiry.  He referred to the fact that the letter purported to be from the Taliban in the [named district] and he referred to the fact that, as mentioned by his representatives, there had been operations in the [that district] in 2012 and people who had been accused of being spies had been killed.  I noted that he had been due to return to Islamabad anyway.  [The applicant] said that his posting had been due to end in September 2012 but that his replacement had been delayed so it had been extended to January 2013.

1. I noted that the CIA were allies of the Government of Pakistan and the ISI was an agency of the Government of Pakistan and I asked [the applicant] why he had been afraid that there would be an inquiry.  He said that he did not know that the ISI was an agency of the Government of Pakistan.  He referred to the fact that he was just [an occupation 2].  I put to [the applicant] that his father had reported the fact that he had received the letter dated [in] October 2012 to the police over two months after he had received the letter.  [The applicant] said that his father had wanted to put this on the record in case something happened.

2. I put to [the applicant] that it was very difficult for me to accept that his father had received these letters from the Taliban as he claimed.  I put to him that, as we had discussed, there were inconsistencies in his evidence about the telephone calls and how the letters had been received.  I indicated to him that I accepted that he had been posted to [Country 1], [Country 2] and [Australia] but I put to him that it was difficult for me to accept that he would have attracted the attention of the Tehreek-e-Taliban Pakistan (TTP, the Pakistani Taliban), given the nature of his employment by [Agency 1] as [an occupation 1] and [occupation 2].  I put to him that it was likewise difficult to understand why, if the Taliban had been interested in him in some way in May 2011, they would have waited until October 2012 to issue the first of the threatening letters.  [The applicant] confirmed that this was what he claimed had happened.  I gave his representative until 29 May 2015 to make further written submissions.

   Post-hearing submissions

3. In a further statutory declaration made on 29 May 2015 [the applicant] said that he did not think that the threat to him related to his having been employed as [an occupation 2] which he conceded could be considered a minor position which would not usually attract the attention of the Taliban.  He said that he thought that the threat to him was because the Taliban had made a mistake in alleging that he worked for the secret agencies in Pakistan and America and that this mistake seemingly had something to do with his work in [Country 2].  He said that in the course of his employment as [an occupation 2] at the [office] in [Country 2] he had [accompanied] [Official A] to ‘the Army Base, some UN places, some meetings with Americans and to some other places that I did not know what they were for’.  He said that this work ‘seems to be the basis for the accusations from the Taliban of working for the secret agencies of Pakistan and America’.

4. [The applicant] said that he thought that the telephone calls had been received in May 2011 because this had been shortly after Osama bin Laden had been killed and the Taliban would have been searching for spies.  He said that he could not think of anyone other than the Taliban who would have been asking where he was and he said that the fact that he had later received letters from the Taliban reinforced his suspicion that it was the Taliban who had called in May 2011.  He said that he thought that the Taliban had only asked where he was in the telephone calls because ‘they wanted me to provide my argument, just like the threatening letters demanded, and first they wanted to know where I was or speak to me’.  With regard to the report which his father had made to the police [in] January 2013 he said that he was providing a new translation.  This was subsequently provided to the Tribunal by his representatives on 10 June 2015.  The new translation corrects the mistaken reference to ‘threading’ but it confirms that, according to the report, his father told the police that ‘[f]or the last one and a half years, from time to time, we were receiving threatening phone calls from an unknown number’ and that his father also referred to the letter from the Taliban.

5. With regard to the fact that, according to [the applicant’s] account, the Taliban had asked where he was in May 2011 but had only sent the threatening letter in October 2012, [the applicant] referred to his evidence that his father had told the callers that he was not in the country and that his father had also changed his telephone number.  He said that it might be that the Taliban had not known his address until later or it might be that the Taliban had thought that he had returned to Pakistan in October 2012.  He referred to his evidence at the Departmental interview that, when he had gone to the village on his visit to Pakistan in April and May 2012, people had told him that it was not safe for him there.  He said that it might be that information had got back to the Taliban that he had returned to Pakistan.

6. With regard to the fact that he had said in his statutory declaration dated 21 May 2013 that the letter from the Taliban dated [in] February 2013 had been posted to his parents’ address in Islamabad whereas at the hearing before me he had said that the post was not delivered to their address, [the applicant] said that in Pakistan, even if a letter was posted, it was pushed under the door.  He said that he had not reported the letter from the Taliban dated [in] October 2012 to his superiors in [Australia] because his contract had been due to expire [in] January 2013 and he had been worried that if he reported the letter the Government of Pakistan would not have completed the investigation, or have taken action to protect him from the Taliban, by the time he was due to leave Australia.  He added that the Government of Pakistan would not provide protection for someone like him and that they would have expected him to return to Pakistan.  He said that ‘they could not protect me so I was afraid to return’.

7. With regard to the fact that his father had not reported the letter dated [in] October 2012 from the Taliban to the police until [January] 2013, over two months later, [the applicant] said that ‘my father did that because of my work with the [specified office]’ and that his father had wanted a record if anything happened to his father.  With regard to the fact that the timing of the letters coincided with the ending of his posting in Australia, [the applicant] said that he thought that this was a coincidence.  He said that he had had a good job in Pakistan and that his reason for staying in Australia was purely his fear for his life.

   Conclusions

8. As I put to [the applicant], I accept that he had postings to [Country 1], [to Country 2] and to [Australia] in the course of his employment by [Agency 1] in Pakistan but I find it difficult to accept that his employment by [Agency 1] as [an occupation 1] and [an occupation 2] would have attracted the attention of the TTP or the Pakistani Taliban as he claims.  When he was interviewed by the primary decision-maker [the applicant] said that his life would be in danger in Pakistan because he had worked in [Country 1], [Country 2] and Australia but his representative has submitted that his position is different from that of other [occupation 2s] who have worked for [Agency 1] because he was posted to [work] in [Country 2] for four years.  As referred to above his representative submitted that it was reasonable to assume that he would have been [accompanying] [Official A] to meetings with the CIA or the ISI and that, given the links between the ISI and the Taliban, it was reasonable to assume that the Taliban were aware of [the applicant’s] involvement in [Country 2].

9. As referred to above, [the applicant] himself said at the hearing before me that he had [accompanied] [Official A] to other offices, like the Americans, but that he had not known whom [Official A] had been meeting.  With regard to the Americans he said that they had had [a facility] in [Country 2] and that he had sometimes [accompanied] [Official A] there.  He said that he had also [accompanied] [Official A] to a place where they had had vehicles which had had United Nations written on them.  After I referred to his representatives’ submission that he had had to [accompany] [Official A] to meetings with the CIA he said that he had had to [accompany] [Official A] to different offices but as [an occupation 2] he had not known which offices these had been.  He said that they had not had any signboards outside.  He agreed that the main function of the [office] in [Country 2] was [details deleted].[2]  He said subsequently that he did not even know that the ISI was an agency of the Government of Pakistan and he referred to the fact that he was just [an occupation 2].

   [2] [Deleted.]

10. In his further statutory declaration made on 29 May 2015 [the applicant] said that he did not think that the threat to him related to his having been employed as [an occupation 2] which he conceded could be considered a minor position which would not usually attract the attention of the Taliban.  He said that he thought that the threat to him was because the Taliban had made a mistake in alleging that he worked for the secret agencies in Pakistan and America and that this mistake seemingly had something to do with his work in [Country 2].  He said that in the course of his employment as [an occupation 2] at the [office] in [Country 2] he had [accompanied] [Official A] to ‘the Army Base, some UN places, some meetings with Americans and to some other places that I did not know what they were for’.  He said that this work ‘seems to be the basis for the accusations from the Taliban of working for the secret agencies of Pakistan and America’.

11. I accept that, as [the applicant’s] representatives said in their submission to the Tribunal dated 8 May 2015, the fact that he was only employed as [an occupation 2] by [his agency] does not preclude the possibility that he could be, or could be imputed to be, a spy.  I also accept that, as referred to in their submissions, apparently innocent people have been executed by the Taliban in the tribal agencies in Pakistan on the basis that they were alleged to be spies.  [The applicant’s] representatives referred to his ‘unique employment history’ and in their submission dated 8 July 2013 they submitted that it was likely that [the applicant] would have had to [accompany] [Official A] to meetings with the CIA, ISI, ISAF or the Afghan Government during his employment.  However the most that can be said on the basis of the evidence before me is that [the applicant] had to [accompany] [Official A] to meetings at a US [facility] in [Country 2] and a United Nations compound.  I accept his evidence that he had had to [accompany] [Official A] to different offices but that as [an occupation 2] he did not know which offices these were or who [Official A] was meeting.  This makes it difficult in my view to accept that [the applicant] would have been accused by the Pakistani Taliban of working for the secret agencies of Pakistan and America on the basis of his employment as [an occupation 2] at [Agency 1].

12. [The applicant’s] posting in [Country 2] ended in February 2007 and despite any presumed knowledge which the Taliban may have had of his employment through their links with the ISI he then worked in Islamabad again without incident until he was posted to [Australia] in September 2008.  [The applicant] claims that it was only in May 2011 that his father started to receive telephone calls from unidentified persons asking where he was.  He has referred to the fact that this was shortly after Osama bin Laden had been killed and he has said that the Taliban would have been searching for spies.  He has said that he cannot think of anyone other than the Taliban who would have been asking where he was.  However he has said that there were only three such telephone calls and that after this his father changed his telephone number.

13. At the hearing before me [the applicant] was unable to explain why his father would have changed his telephone number if these people had simply been asking where he was.  He said that they could have found out from someone in his area that he was abroad and that his father had simply confirmed this.  After I put to him that his father had said in the report which he had made to the police [in] January 2013 that he had been receiving threatening telephone calls from unknown numbers he said that only his father would know why he had said this.  He said that his father had not mentioned any other phone calls apart from the three we had already discussed.  After the hearing he produced a new translation of the report which says that his father told the police that ‘[f]or the last one and a half years, from time to time, we were receiving threatening phone calls from an unknown number’.  As I put to [the applicant], he has produced this report made by his father in purported corroboration of his evidence but it is clearly inconsistent with his own evidence that there were only three such calls and that they were not threatening calls.

14. [The applicant] said at the hearing before me that the letter dated [in] October 2012 from the Taliban had been thrown under the house door.  He said that the post was not delivered to their address in Islamabad.  After I put to him that in his statutory declaration made on 21 May 2013 he had said that the second letter had been posted to his parents’ address in Islamabad he said that this letter too had been thrown under the house door.  In his further statutory declaration made on 29 May 2015 he said that in Pakistan, even if a letter was posted, it was pushed under the door.  This does not explain why he told me that the post was not delivered to their address in Islamabad.

15. With regard to why his father had not reported the letter dated [in] October 2012 from the Taliban to the police until [January] 2013, over two months later, [the applicant] said that his father had not taken the first letter seriously.  He said that his father had sent him a copy of the letter and he had been scared but that he had not reported the fact that he had received this letter to his superiors in [Australia] because it had said that he had been spying for the CIA and the ISI and he had been afraid that he would be sent back to Islamabad and that there would be an inquiry.  In his further statutory declaration made on 29 May 2015 he said that he had not reported the letter from the Taliban dated [in] October 2012 to his superiors in [Australia] because his contract had been due to expire [in] January 2013 and he had been worried that if he reported the letter the Government of Pakistan would not have completed the investigation, or have taken action to protect him from the Taliban, by the time he was due to leave Australia.  He added that the Government of Pakistan would not provide protection for someone like him and that they would have expected him to return to Pakistan.  He said that ‘they could not protect me so I was afraid to return’.

16. With regard to the fact that his father had not reported the letter dated [in] October 2012 from the Taliban to the police until [January] 2013, over two months later, [the applicant] said that ‘my father did that because of my work with the [specified office]’ and that his father had wanted a record if anything happened to his father.  With regard to the fact that the timing of the letters coincided with the ending of his posting in Australia, [the applicant] said that he thought that this was a coincidence.  He said that he had had a good job in Pakistan and that his reason for staying in Australia was purely his fear for his life.

17. I do not consider it credible on the basis of the evidence before me that [the applicant] would have attracted the attention of the TTP or the Pakistani Taliban because he worked for [Agency 1] in Pakistan as [an occupation 1] and [occupation 2] in [Country 1], Pakistan and Australia, or specifically because he worked as [an occupation 2] at the [office] in [Country 2] from November 2003 until February 2007.  As he conceded, the main function of the [office] in [Country 2] is [details deleted].  While I accept that [the applicant accompanied] [Official A] to meetings at a US [facility] in [Country 2], a United Nations compound and different offices, I accept that as [an occupation 2] he did not know which offices these were or who [Official A] was meeting.  I do not consider it credible that [the applicant] would have been accused by the Pakistani Taliban of working for the secret agencies of Pakistan and America on the basis of his employment as [an occupation 2] at [Agency 1] as he claims.

18. Having regard to the inconsistencies in [the applicant’s] evidence I do not accept that his father received three telephone calls from unidentified persons who he believes to have been from the Taliban asking where he was after Osama bin Laden was killed in May 2011, nor that, as his father claimed in the report which his father made to the police [in] January 2013, his father had been receiving threatening telephone calls from unknown numbers for the previous one and a half years.  I accept that his father made this report to the police in Islamabad a matter of days before [the applicant’s] posting in [Australia] was due to end but I give greater weight to the problems which I have with [the applicant’s] evidence that I do to this report or to the two letters which he has produced purporting to be from the Taliban.  I do not accept on the evidence before me that [the applicant] has been threatened by the Taliban because they have accused him of working for the secret agencies of Pakistan and America as he has claimed.

19. Having regard to my findings of fact above I do not accept on the evidence before me that there is a real chance that, if [the applicant] returns to Pakistan now or in the reasonably foreseeable future, he will be persecuted because he will be imputed by the Taliban with a political opinion in support of Pakistani and American security agencies such as the ISI and the CIA, because he will be viewed as a ‘kafir’ or non-believer, as submitted by his representatives, or because he will be perceived to be a member of the particular social groups of ‘Pakistani secret agency employees’ or ‘American secret agency employees’.  I do not accept for the reasons given above that [the applicant] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.  As referred to above, [the applicant’s] wife and his [children] indicated that they did not have claims of their own and that they were applying as members of his family unit.  I do not accept on the evidence before me that they have a well-founded fear of being persecuted for one or more of the five Convention reasons if they return to Pakistan now or in the reasonably foreseeable future.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm?

20. Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm at the hands of the Tehreek-e-Taliban Pakistan (TTP, the Pakistani Taliban). This being the only claim he has made, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act 1958. As referred to above, [the applicant’s] wife and his [children] indicated that they did not have claims of their own and that they were applying as members of his family unit. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

    CONCLUSIONS

1. For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. As referred to above, [the applicant’s] wife and his [children] indicated that they did not have claims of their own and that they were applying as members of his family unit. I am not satisfied on the evidence before me that they are persons in respect of whom Australia has protection obligations. Therefore neither [the applicant] nor his wife nor [children] satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in paragraph 36(2)(b) or (c) of the Act. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

2. The Tribunal affirms the decision not to grant the applicants protection visas.

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

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

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.’

   Refugee criterion

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

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

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

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

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

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

    Ministerial direction

13. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

14. Subsection 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person and that ‘member of the family unit’ has the meaning given by the Regulations for the purposes of the definition.

    Credibility

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

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

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

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

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