1416907 (Refugee)

[2016] AATA 3215

1416907 (Refugee) [2016] AATA 3215 (1 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416907

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:1 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 01 February 2016 at 1:23pm

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

1. The applicant is a citizen of Pakistan, aged in his early [age]. He is from [town] in the Khyber Pakhtunkhwa region of Pakistan. His religion is Sunni Muslim and he is ethnically Pathan. The applicant arrived in Australia on a Subclass 572 (Student) visa [in] April 2008. He was subsequently granted a further Student visa [in] October 2011. He departed Australia [in] December 2013 and returned [in] January 2014.

2. The applicant applied to the Department of Immigration for the Protection visa [in] February 2014. The applicant claimed that he was pressured to join his cousins in supporting the Taliban and associated militant networks. The applicant claims that his cousins will attempt him to join the Taliban and due to his family connections false charges will be made against him. The applicant also claims that he will be forced to marry a cousin from the tribal areas if he returns to Pakistan.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] September 2014. 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 delegate accepted that some of the applicant’s extended family members may have been involved with the Taliban, but did not accept that the applicant had been personally targeted or sought to join the Taliban. The delegate also found that the applicant could relocate to another part of Pakistan if he feared harm from his cousins. The delegate was also not satisfied that the applicant’s evidence indicated that he feared significant harm if he refused the request from his relatives to marry his cousin.

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant stated on the application form that he speaks, reads and writes Urdu, English and Hindi and he also speaks Pashto. The applicant indicated that he has resided in Australia from April 2008 to [date] December 2013 and he resided in [country] in 2007 for one month where he was looking for work. He also stated that from 2003 to 2008 he resided in [suburb] in Karachi. The applicant also indicated that he completed a [course] in Karachi in [year] and in Australia he completed [courses].

6. When lodging the application to the Department, the applicant provided a statement in which he stated that he is a Pakistani Muslim who was born in [town] in the North Western Frontier Province which is now known as Khyber Pakhtunkhwa. His great grandfathers are from Afghanistan and they speak the Pashto language. The applicant’s father had ancestral lands and they are known as Pathans and discriminated against by the Pakistani government and the Urdu speaking Pakistanis as they have the right to enter Afghanistan and have their own laws and government which are recognised by the Pakistani government. The applicant states that when the Taliban infiltrated the tribal areas after the Russian war this was followed by the United States and United Nation invasion of the tribal areas. His father did not like the Taliban and wanted all of his children to study hard and obtain employment in the government sector. However, his extended family did not agree with the applicant’s father and became supporters of the Taliban which slowly took control of the tribal areas and became a safe haven for the Taliban. As Pathans they were considered to be Taliban supporters even though they were completely opposed to them. The Pakistani government scrutinised them constantly and they were discriminated against. The applicant was studying at the [name] High School in [town] and later moved to Peshawar to complete his studies. The applicant was ordered to attend madrassa schools but after the introduction of arms and martial arts training his father became reluctant to send them to the school.

7. The applicant states that at high school he was surprised when a number of his school friends and relatives joined the Taliban to fight the United States and United Nations forces. The local Pakistani militant groups joined the Taliban and the applicant attended meetings held by the Taliban in the tribal areas, along with his [brothers]. The applicant was ordered to learn military skills to attack the foreign forces and to safeguard the tribal areas. They were told that they would be sent to Afghanistan for military training and then moved to foreign countries to fight the United States and United Nations. The applicant and his [brothers] were sent to Karachi immediately because his father wanted them to complete their education and stay away from their extended relatives in the tribal areas who were fighting along with the Taliban. The applicant’s father rented an apartment for the applicant and his brothers in Karachi. The applicant enrolled at the College [name] and completed a [course]. His brother [name] got a job in Karachi assisting his father and his [brother Mr A] moved to Lahore where he studied to become a qualified [occupation]. His [brother] left for overseas and the applicant began work at the [name] Shop at Karachi [location]. After his brother became a [occupation] he became more confident that he could save him from the Taliban and local terrorists. The applicant was surprised to find his relatives and friends were serving the Taliban and they were visiting Karachi to lend their support to the ANP Party which is a party representing Pathans in Karachi. They were aware that he was staying in Karachi and they started visiting him. They would not listen to him but continued to stay at his house against his wishes. The MQM party militants would constantly fight with the ANP party militants and he feared that he could be targeted by the MQM militants who would consider him as another militant involved in target shooting which was rampant in Karachi as many innocent people were killed.

8. The applicant was surprised that many of his friends and relatives were involved with the Taliban and target shooting. The applicant’s father and brothers warned him about the situation and said they would not be able to protect him. In March 2007, the Rangers entered his unit to search for militants. They arrested him and after checking his details took him to the Karachi police station where he was beaten severely whilst being questioned. They repeatedly asked him whether he was a militant and to which group he belonged. The applicant explained to them that he worked at the [name] Shop and had never been involved in any crimes in his life. The Rangers told him that they had been notified by the MQM and his neighbours that ANP militants had been residing at his place and they asked him who they were and how he knew them. He told them that the militants entered his unit and stayed for a few hours and he did not know them. The Rangers said that he is a Pathan and from [town] and he knew them. The applicant was released after his brother [Mr A] was notified by the local Mullah and after he personally explained the situation to the mullahs. The applicant’s father advised him to travel overseas and he went to [country] in search of a job. He could not find a job and returned disappointed. He feared that he would be falsely charged and sent to prison because of his relatives and friends presence in his residence. The applicant could not return to [town] as many youths were being taken away forcibly by the Taliban.

9. The applicant’s friends and relatives who were Taliban militants began pressuring him to join them. His father and brother asked the ANP to ask the militants to stop visiting him after he was arrested by the Rangers. The Taliban militants would meet him on the street and ask him to join the Taliban. He began fearing for his safety. His brother in [country] tried to get him visa to leave the country. The applicant could not stop his relatives and friends from joining him and he feared he would be shot. The applicant was humiliated because of his refusal to join the militants. They warned him that he could be taken away by the Rangers and could spend his life in prison. In January 2007, while he was out of the office for lunch two of his relatives and three Taliban men approached him and told him they were waiting to shoot someone. The applicant realised he was in a dangerous situation and started to walk towards an office building. Suddenly, some of teenagers jumped out of the vans and the people on the street started to identify the militants who dispersed in a different direction. When the people pointed at him, the Rangers arrested him and locked him in the van. When he was taken to the Karachi police station he was beaten and kicked by the Rangers. They asked him for his details and the police officers told the Rangers that he had been brought in once before and had escaped arrest. The applicant was beaten but was fearful of telling the officers that he was related to the militants. He told them that the public had mistaken him for a militant. The Rangers spoke to the police officers and they told them that he had militants staying at his home. The police officers told the applicant that they had information from the militants that he had left [town] to escape being trained as a militant and they knew that some of the militants were his relatives who wanted to join them. The applicant was “dumb founded”. The officers warned him not to mention this to anyone and he could be killed if they did. The offices said that if they told the Rangers about this matter or he could be taken away and imprisoned. They told the applicant that he should either leave the country or join the militant if he wanted to escape arrest. The officers said that if he was caught by the Rangers next time that he would be taken away and imprisoned. The officers released the applicant and his brother spoke to them to keep the matter secret. The applicant was in great fear of the Rangers until he left the country.

10. The applicant states that when he arrived in Australia he was told that the Rangers had contacted his brother and they wished to question him in relation to target shooting in Karachi by the Taliban. The applicant feared travelling back to Pakistan because the Rangers were searching for him. The applicant heard that his father died [in] June 2013. He was devastated but his brothers told him not to travel again because he could be abducted by his relatives or taken away by the Rangers if they found him. The applicant’s mother and brothers told him to stay away because the relatives were visiting his family in [town] and were proposing a cousin from a tribal area to marry him so he could live with them permanently. In December 2013, his brother [Mr A] called him and asked him to travel to Karachi to stay with him and see their mother. The applicant was so happy and travelled to Karachi and then to [town]. The applicant’s brother [Mr A] asked the applicant to stay inside and when the Mullahs came they asked to meet the applicant. The following day his relatives from the tribal areas arrived at their home and told him that they should all give the Taliban their full support. They said he should travel with them to Peshawar and they would take him to the areas where there had been drone attacks against innocent people. At the insistence of his mother and brother he agreed to visit his father’s relatives and go to the places where the drone attacks had occurred.

11. The applicant arrived in Peshawar where he met his father’s [sibling], [name], who introduced him to one of his cousin’s (his father’s [sibling]’s daughter) and said that he would be marrying her soon. The applicant kept silent in fear of retorting and stayed with his father’s siblings during that time. The applicant was told by the Taliban and other tribal leaders who accompanied them that he was marrying a girl from the tribe and he had to undertake arms training. The applicant was shocked and told his brother that he would rather return to Australia than marry anyone from the tribal belt. The applicant was shocked when he arrived back in [town] to find his relatives making arrangements for his wedding. They wanted him to grow a beard and wear a Shalwar Kameez and a cap on his head. He begged his mother not to force him to marry his cousin and his brother took him back to Karachi before his relatives could begin searching for him. He feared staying in Islamabad or Rawalpindi and when he arrived back in Karachi his brother hid him in a [building]. He feared his cousins or the Rangers or police officers would take him away if they found him. At the time he left Pakistan, the applicant was in a great fear of harm and being taken away to Afghanistan for military training. The applicant was thankful to his father for sending him to Australia. He does not wish to become a militant or end up in a Pakistani prison because of his relationship to his tribal elders.

12. The applicant provided a number of news articles relevant to his claims. The articles are generally in relation to the Taliban and its attacks on various places, as well as drone attacks in Pakistan by the United States forces.  The reports also refer to the prevalence of the Taliban in parts of Karachi. Most of the reports are from 2013 and include a report in relation to 22 people who were killed by the Taliban in [town] in August 2012 when the Taliban attacked an air force base in [location] and also killed 22 passengers in Naran Valley.

13. The applicant was interviewed by the delegate [in] September 2014. The Tribunal has listened to the CD Rom recording of the interview.

    Application for review

14. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

15. The applicant appeared before the Tribunal on 29 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

    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?

16. As stated above, the Tribunal must consider whether the applicant has a well founded fear of persecution in Pakistan for one or more of the five Convention reasons. In considering the applicant’s claims to fear harm in Pakistan, the Tribunal has had regard to the applicant’s oral and written evidence provided to the Department during the interview and to the Tribunal during the hearing. The Tribunal has also had regard to the representative’s submissions as well as relevant independent evidence referred to by the representative and obtained by the Tribunal. The Tribunal has also had regard, as required, to the relevant Department of Foreign Affairs and Trade reports.

17. As stated above, the applicant has claimed that he cannot return to Pakistan. In his detailed statement to the Department, the applicant claimed that he feared returning to Pakistan due to his cousins who were involved with the Taliban and the possibility of forced marriage to a cousin. During the Department interview, the applicant was asked why he is unable to return to Pakistan. The applicant stated that his cousins and uncle will force him to marry a cousin and they want him to join them and fight with them. The applicant also claimed that he will be believed to have associations with the Taliban because he is Pashtun and will be harmed by the authorities.

18. When asked at the hearing what he fears if he returns to Pakistan, the applicant stated that he fears he will be forced to marry his cousin from his uncle’s family and he will have to participate in training with the Taliban. The applicant claimed that it is a “tradition” in the tribal areas that men who marry someone from a tribal area will have to train in the use of weapons. The applicant stated that people in tribal areas are “crazy” and he will have no choice but to marry someone not of his choice and join in the fighting.

19. Having considered all of the evidence, the Tribunal does not accept that the applicant is a truthful witness. The Tribunal is prepared to accept that the applicant’s family may have wished him to marry a cousin and participate in an arranged marriage, but the Tribunal does not accept that they have attempted to force him to do so or that they will harm him in the future for this reason. Whilst the Tribunal is prepared to accept that he may have some extended family members who support the Taliban, the Tribunal does not accept any of the applicant’s other claims in relation to his cousins seeking him to join the Taliban or the Rangers or police in Pakistan attempting to harm him for this reason. The Tribunal considers that the significant delay in the lodgement of the application; the applicant’s return to Pakistan; as well as several inconsistencies and confusion in his written and oral claims to be indicative of the fact that the applicant has manufactured his claims for protection following his difficulties in continuing his studies in Australia and obtaining permanent residence through the Skilled visa migration program. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    Delay and travel to and in Pakistan

20. The Tribunal firstly considers that the considerable delay in the lodgement of the application is not consistent with the applicant’s claims in relation to his experiences in Pakistan prior to his arrival in Australia in 2008. As indicated above, the applicant arrived in Australia on a Student visa in 2008 and did not apply for a Protection visa until February 2014, some six years after his arrival in Australia. The applicant has claimed that he left Pakistan to avoid harm from the Rangers and Police who, according to his statement had beaten him severely, and from his cousins who wanted him to join the Taliban. When asked by the Tribunal during the hearing about his intentions when he came to Australia on a Student visa, the applicant confirmed that he was intending to lodge an application for a Skilled visa in an attempt to remain in Australia as a permanent resident. However, the applicant did not make an application for the Skilled visa because he did not complete his studies. His father was supporting him financially, but his businesses which were in Karachi and [town] deteriorated and he was no longer able to support the applicant’s studies. The applicant’s father also died in June 2013. When the Tribunal asked the applicant why he did not apply for protection as soon as he arrived in Australia, the applicant stated that he wanted to obtain a permanent visa based on education. He thought he could get permanent residence in that way but it was only because of his father’s financial difficulties that he could not do so.

1. The Tribunal considers that the significant delay in the lodgement of the application raises considerable concerns in relation to the credibility of the applicant’s claims. The Tribunal accepts that the applicant was pursuing his studies and had wanted to obtain permanent residence through the Skilled visa migration program. However, this entailed several years studying whilst on temporary visas, with no guarantee of permanency at the completion of this process. The Tribunal considers that had the applicant genuinely been sought by the Taliban in an attempt to force him to join, and had he been beaten and harmed by the Police and Rangers on suspicion of involvement with the Taliban, that he would have sought to determine how he could remain in Australia permanently by pursuing a Protection visa at a considerably earlier opportunity. The applicant instead waited some six years following his initial arrival in Australia to make this application, and only did so after he had returned to Pakistan.

2. The Tribunal also considers that the applicant’s return to Pakistan in 2013, and his travel with his cousins to different parts of northern Pakistan, is further indicative of the fact that he does not genuinely fear harm in Pakistan. When asked by the delegate why he returned to Pakistan in 2013 and what had happened when he returned to, the applicant stated that he had been in Australia for several years and decided to return. He went for about 20 days and went to Karachi on his way and for five days on his return. He also spent in [town], but he also went to [location] and [location] with his cousins. When asked why he would do so given his claimed issues with them in the past, the applicant stated that they convinced the applicant and his brother to join them.

3. When asked at the hearing why he had returned to Pakistan, the applicant stated that he had wanted to return when his father was still alive but he could not do so because his cousins were living at his house and he was having problems from them. They were talking to the applicant’s sisters about his marriage to one of their sisters. The applicant was not in favour of this and was unable to return whilst they were staying at his home. When asked by the Tribunal why he could return to Pakistan in December 2013 but not in June 2013 when his father died, the applicant stated that he knew in December 2013 that his cousins had returned to their tribal area and were not at his home. However, when he went back to [town] and the local [cleric] found out that the applicant was at home he told his cousins. The applicant’s cousin then returned suddenly to [town] and told the applicant that he should travel with him to the tribal areas to show him the evidence that Western countries are attacking Pakistan and their government is working against them. When asked why he would travel with his cousins, given that he claims they were associated with the Taliban and he had problems in the past due to his connection with them, the applicant stated that they pressured him and kept saying in “threatening tones” that he should travel with them. The applicant’s mother told him that he and his brother should just go with them for a short time and then make an excuse to leave. The applicant and his brother then agreed to undertake the travel.

4. The Tribunal does not accept that the applicant has satisfactorily explained why he decided to return to Pakistan in 2013. As stated above, the applicant has claimed to have been sought by his cousins to join the Taliban, which he did not wish to do, and to have been sought and harmed by the Rangers and the Police in 2007. The Tribunal considers that the applicant’s return to Pakistan is not consistent with his claims that he feared harm from those groups. Indeed, the applicant not only returned to Karachi, but also returned to [town] and travelled with his cousins from whom he claims were attempting to force him to join the Taliban. The Tribunal does not accept the applicant’s explanation for why he would not only return to Pakistan, but to agree to travel with his cousins. As discussed with the applicant during the hearing, the Tribunal considers that the applicant could have immediately returned to Karachi and left for Australia, rather than purportedly undertaking travel with his cousins to tribal areas. The Tribunal considers that the evidence in relation to these issues raise considerable concerns that the applicant’s claims have been manufactured following his return to Australia from Pakistan in 2013.

   The applicants claims regarding 2007 incidents

5. As stated above, the Tribunal also considers that the applicant’s evidence in relation to the 2007 incidents is problematic. When asked at the hearing about his cousins’ involvement with the Taliban, the applicant stated that he is certain that his cousins were involved with the Taliban due to their behaviour and their attitude towards jihad. When asked about his own involvement with the Taliban, the applicant stated that they pressured him and came to his home. When asked about the meetings he attended with the Taliban, the applicant referred to two meetings where his cousins came to see him. When reminded that he had said in his statement that he had attended meetings where the Taliban spoke about training and arms, the applicant indicated that they only came to his home and he did not attend meetings.

6. When asked during the hearing about the incidents that occurred in 2007, the applicant stated that his cousins came to visit them and the neighbours in his building complained. The Rangers then took him to the police station for questioning. When asked when that occurred, the applicant stated that it was on about [date] March 2007. The applicant stated that at that time they took him to the police station and questioned him. When his brother arrived he was able to persuade the Rangers that they were not connected to the people and they had forced their way in. When asked whether the Rangers returned looking for his cousins, the applicant stated that he does not know but they may have returned in casual clothes. When asked why his cousins would not have told him whether the Rangers came looking for them, the applicant stated that they did not return to stay with him again after that time.

7. The applicant also told the Tribunal that another incident occurred whilst he was on his lunch break when a couple of the people who were with the Taliban approached him in the street. Some other people began pointing at the applicant and told the Rangers that the applicant was with the Taliban. The Rangers then took him away and questioned him. When asked whether the Rangers caught the Taliban as well, the applicant stated that they chased them but were unable to get them. When asked why they would be so focused on questioning him about the Taliban, but not be able to arrest the people who were actually members of the Taliban, the applicant stated that they are a bit scared of them and may also be “with them”. They also want to show the public they are doing something about the Taliban. When asked what happened when he was taken to the police station, the applicant stated that he was transferred to another station and he tried to not tell them he had any involvement with the Taliban, but he was forced to say that they stayed at his place frequently and sometimes for three to four days. The applicant was able to contact his brother, [Mr A], who told the police that the applicant would not be involved with the Taliban. He gave the police his contact details and they let him go. The applicant confirmed that this incident occurred in January 2007.

8. When advised that it is odd that the Rangers were so interested in him, the applicant stated that he was an easy target and again stated that the Taliban may have been connected with the Police and the Rangers. When the Tribunal asked what the Rangers did to him, the applicant stated that the first time they did nothing to him. The Tribunal advised the applicant that in his statement he had indicated that they had beaten and kicked him during that incident. The applicant was also asked how the Police would not have known in March 2007 that he had a connection with the Taliban if this had been disclosed in January 2007 by his brother. The applicant then indicated that there are some problems in his statement and his agent incorrectly stated that the incident at his home with the Rangers was in March 2007 and the incident in the street was in January 2007 and it is the “other way around”. The Tribunal advised the applicant that up until that point in the hearing he had claimed that the incident with the Rangers visiting his home occurred in March 2007 and the incident in the street was in January 2007. The applicant stated that the incident in January 2007 was at his home and the one in March 2007 was in the street. When advised that he has completely altered his evidence in relation to this incident, the applicant stated that he has made many mistakes but he did not read his statement correctly. The applicant was advised that at the commencement of the Department interview he had indicated that he did not have any changes to his statement and he had signed every page of his statement. The applicant was also advised that his English is good and it is difficult to accept his explanation. The applicant stated that he did not find out until after the Department interview that there were problems in his statement and he realised that this may have caused his case to fail. The applicant was advised that it was puzzling that he would wait until that point in the hearing to tell this to the Tribunal.   

9. The Tribunal considers that several aspects of the applicant’s claims in relation to the 2007 incidents are confused, inconsistent and not credible. Firstly, the Tribunal considers it evident that the applicant has become confused in relation to which incident occurred first; whether it was the incident when the police came to his home to search for the Taliban after neighbours reported their presence, or whether it was when he was approached in the street by the Taliban and subsequently taken to the police station for questioning. The Tribunal does not accept the applicant’s explanation for the inconsistencies in relation to the incidents which purportedly occurred in January and March 2007. The Tribunal considers it reasonable to expect that the applicant would be able to recall accurately which incident occurred first and to give an accurate account of what happened during those incidents. In the Tribunal’s view, his inability to do so is indicative of the fact that he has manufactured these claims.

10. Furthermore, although the applicant indicated in his statement to the Department that he was involved in meetings with the Taliban whereby discussions regarding arms training occurred, he has subsequently altered this aspect of his claims. Although the Tribunal accepts that the applicant did not attend meetings of this kind, it considers that the inconsistent nature of the evidence in relation to this issue is further indicative of the fact that the applicant has manufactured his claims in relation to these incidents.

11. Additionally, the Tribunal considers the applicant’s claims to have been the subject of such intense scrutiny by the Rangers and the Police, but to be unaware of what actions were taken against his cousins who were purportedly members of the Taliban, to be not credible. The Tribunal does not accept that it is credible that the Police or Rangers would have such a level of interest in the applicant because of his association with the Taliban, yet be unable to take any action against the Taliban cousins when they met the applicant in the street or when they stayed at his home, which was purportedly on several occasions. The Tribunal does not accept the applicant’s explanation. The Tribunal does not accept that if the police and Rangers were protecting the Taliban that they would bother targeting the applicant. In the Tribunal’s view, the evidence in relation to this issue is further indicative of the fact that the applicant’s claims in relation to the 2007 incidents have been fabricated.

    The applicant’s marriage to his cousin

12. As stated above, the applicant has also claimed that he will be forced to marry his cousin who is from a tribal area, and he will then be required to join the Taliban. When asked by the delegate about this issue, the applicant stated that he was told that he should marry a girl who had been arranged for him. The applicant’s brothers supported the marriage, but his mother told him that he could decide and was supportive. The applicant’s sisters also agreed with the applicant’s decision. When asked by the delegate whether any engagement or celebration occurred, the applicant stated that they brought henna for his cousin which is part of an engagement celebration, but he returned to Karachi before anything could occur.

13. When asked by the Tribunal about his claims relating to his marriage to his cousin, the applicant stated that if he marries his cousin he will have to undergo basic training with the Taliban. When asked when it was first decided that he would marry his cousin, the applicant stated that it was after he finished his high schooling. The Tribunal commented that he is now in his [30s] and he had earlier told the Tribunal that his cousin who they want him to marry is [number] years younger than him, and has therefore been of marriageable age for many years whilst he has been in Australia. The Tribunal commented that it is unlikely that she has not been married to someone else by her family in the intervening years. The applicant stated that he is connected to this girl and will be forced to marry her until they day he dies. In response to the Tribunal’s comments that it is difficult to accept that they would not already have forced him to marry her whilst he was in Pakistan, given that he completed his schooling in [year] and did not leave until 2008, the applicant stated that they kept on threatening him and telling him that he had to marry his cousin. When advised by the Tribunal that it has concerns that he has manufactured his claims following his inability to obtain a visa through the permanent skilled visa program, the applicant stated that he would never have pursued this choice and he has a cousin who has gone to [country]. The applicant believes he has gone there to join the fighting.

14. The Tribunal is prepared to accept that the applicant’s family arranged for him to marry a cousin. The Tribunal accepts that arranged marriages are traditional in many areas of Pakistan and that the applicant’s family may have considered it appropriate for him to marry a cousin who had been selected for him. However, the Tribunal firstly considers it unlikely that the cousin, who would now be in her [20s], would not have been married to someone else rather than the family waiting indefinitely for the applicant’s return from Australia. Additionally, as discussed at the hearing, the applicant was in Pakistan until 2008 and he had completed his schooling some [number] years earlier. The Tribunal considers that there was ample opportunity during that time for his family to arrange the marriage and require him to marry his cousin, had they wished to do so. Furthermore, as set out above, the applicant’s return to Pakistan in 2013 and his travel with his cousins does not indicate that he genuinely fears harm in Pakistan. The Tribunal is not satisfied, on the evidence before it, that the applicant genuinely fears that he will be forced to marry his cousin or another person against his wishes.

15. The Tribunal does not accept, having considered all of the evidence, that the applicant has suffered discrimination or harm because he is ethnically Pathan or that he has been considered by the Rangers or the Police as having any association with the Taliban or that he was ever harmed by the Rangers or the Police. The Tribunal does not accept that the incidents in 2007 occurred. The Tribunal also does not accept that the applicant was told by his cousins that he should join the Taliban or that members of the Taliban stayed with him or approached him in Karachi. The Tribunal does not accept that the applicant left Pakistan for the reasons he claims and considers that he left only in order to pursue studies in Australia and to ultimately make an application for a Skilled visa and following his inability to pursue this path he has manufactured claims for protection.  

    The applicant’s return to Khyber Pathunkhwa

16. The Tribunal has not accepted any of the applicant’s claims to have been sought by his cousins, the Taliban, the Rangers or the Police or to have been told that he has no choice but to marry his cousin. However, the Tribunal accepts that the applicant is from the Pashtun ethnic group and is from the Khyber Pathunkhwa and tribal areas of Pakistan. The Tribunal has had regard to the independent evidence provided by the applicant and the reports which indicate that militant groups such as the TTP, LeJ, SSP and JeM maintain a presence in Kurram and the nearby Kohat District[1]  although it has been mostly active around its base in Shabak, an area of lower Kurram which borders Afghanistan and North Waziristan.[2] The Tribunal also accepts that there continues to be clashes between militants and the security forces and there have been occasional incident in which civilians have been killed or injured However, whilst noting the independent evidence cited by the delegate which refers to the security situation in Khyber Pathunkhwa and tribal areas in 2013 and some reports relating to 2014, the independent evidence which was discussed during the hearing indicates that there has been a significant improvement in the security situation in the applicant’s home area and the number of incidents has declined. As also discussed with the applicant during the hearing, the military has undertaken multiple operations in 2011, 2012 and 2013.[3] The independent evidence also indicates that a similar situation has occurred in Karachi where there has been a notable decline in crime and security incidents as a result of counter terrorism operations throughout the country. The Department of Foreign Affairs and Trade has reported a 75 per cent reduction in the number of sectarian and terrorist groups from September 20154 to September 2015 and militant groups, particularly the Taliban “are divided and disrupted”.[4]

    [1] Zahab, M.A. 2013, ‘It’s Just a Sunni-Shia Thing’: Sectarianism and Talibanism in the FATA of Pakistan’, in B. Arechal and S. Zemni, The Dynamics of Sunni-Shia Relationships, Hurst & Company, London, p. 183.

    [2] ’46 killed, militant hideouts destroyed, 2015, Dawn, 26 March.

    [3] Khattak, D 2011, ‘Evaluating Pakistan’s Offensives in Swat and FATA, CTC Sentinel, vol. Issue 10, 301 October, p. 11; Shazad J 2012, ‘Operation Koh-i-Sufaid: Security forces clear 95% of Central Kurram Agency’, The Express Tribune, 19 December.

    [4] Department of Foreign Affairs and Trade 2016, Country Report: Pakistan, 15 January, p.6.

17. The Tribunal is not satisfied on the evidence that there is a real chance that the applicant will be subject to serious harm in the Khyber Paktunkwha or tribal regions, or if he chooses to return to Karachi. Additionally, although the Tribunal accepts that the Taliban is comprised primarily of Sunni Pathans/Pashtuns, having not accepted that the applicant has been discriminated or harmed in the past because he is ethnically Pathan,[5] or that he has been considered by the Pakistani police or Rangers to have any association with the Taliban, the Tribunal is not satisfied that there is a real chance he will suffer serious harm for this reason upon his return to Pakistan. Nor is the Tribunal satisfied that there is a real chance that the applicant will be forced to marry someone against his wishes or that he will suffer serious harm for this reason.

    [5] The independent evidence indicates that there are approximately 30 million Pashtuns in Pakistan and the country’s second largest ethnic group and are represented at all levels of society – see Department of Foreign Affairs and Trade 2016, Country Report: Pakistan, 15 January, p. 9.

1. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of his ethnicity, his actual or imputed political opinion, his religion or any other Convention reason. The Tribunal finds, therefore, that the applicant does not have well founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.

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

2. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions, which require the Tribunal to consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country that there is a real risk that he will suffer significant harm. The Tribunal has not accepted the applicant’s claims to have been specifically sought or targeted by the Taliban or the police or the Rangers, or that there is a real risk he will suffer harm in relation to these issues in the future, or that he will suffer serious harm because he is ethnically Pathun from Khyber Paktunkwha and tribal regions. The Tribunal has also not accepted that there is a real chance that the applicant will be forced to marry his cousin or someone else against his wishes or that he will suffer serious harm for these reasons, or that there is a real chance he will suffer harm in Karachi or Khyber Paktunkwha or the tribal regions as a result of generalised violence or terrorist incidents. For the same reasons as set out above, the Tribunal is also not satisfied that there is a real risk that the applicant would face significant harm upon his return to Pakistan, including arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment.

   CONCLUSIONS

3. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

4. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. 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

6. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Susan Pinto
   Member

   
   

   ATTACHMENT - RELEVANT LAW

7. In accordance with section 65 of the Migration Act 1958 (the Act), 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 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides 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

8. 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.

9. 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.’

10. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes 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.

    Complementary protection criterion

11. 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 above.  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

12. 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.