1504086 (Refugee)

[2017] AATA 1008

1504086 (Refugee) [2017] AATA 1008 (12 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504086

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Rea Hearn Mackinnon

DATE:12 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 12 May 2017 at 6:08pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Religion – Atheist – Liberal views – Blasphemy accusation – Particular social group – Polio vaccinator

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

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. 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).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on 11 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

10. The issue in this case is whether the applicant will be harmed as an atheist, because of his liberal views or because of his work as a polio vaccinator. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

11. The applicant has provided a copy of his Pakistan passport and the Tribunal accepts he is a national of Pakistan.

    Background

12. The applicant was born on [date] in [District 1], Khyber Pakhtunkhwa Province (KP). He is of Pashtun ethnicity and a Sunni Muslim.

13. The applicant’s father passed away in 2000. His mother and [siblings] are living in [District 1]. [One sibling] is [an occupation] with [a company]. [Another sibling] returned to Pakistan from [overseas] where [he/she] had been working [in] 2014. The applicant’s home is in the town of [Town 1] which has a population of about [number] people. The applicant told the Tribunal his family own their own home in [Town 1] but no land. When the Tribunal noted that the applicant claimed in his [temporary] visa application that his family was quite wealthy, he stated that his family had suffered business losses and his [sibling] sold their land, including land in the applicant’s name, to cover the losses.

14. The applicant attended school [from] [year] until [year] and [a university] in [District 1] from [year] to [year]. The applicant claims he completed a [course] at [another] University between [year] and [year] however the certificate and transcript of results from [the other] University which he has provided indicate he completed the degree at the end of [year]. When the Tribunal discussed this with the applicant, he said he spent more time on research during [year].  He received a scholarship to undertake his [degree]. He then worked for [Company 1] in [District 1].

15. The applicant applied for a [temporary] visa [in] October 2012. The visa was granted [in] November 2012 valid until [May] 2014. The applicant arrived in Australia [in] January [2013].

16. The applicant was assisted by a Hindi interpreter at the hearing. When asked why he requested a Hindi interpreter instead of a Pashto or Urdu interpreter, he said he has watched a lot of Hindi films and Urdu and Hindi are very similar.

    Applicant’s mental health

17. The applicant has provided a letter dated [August] 2016 from a psychologist which states the applicant has been attending intermittently scheduled counselling sessions since March 2015; and has been treated with [therapy] to support him to manage [specified conditions associated with "his] past traumatic experiences from the Taliban and community as well as [specific symptoms]”.

18. The report notes the applicant takes [medication] once per day and states the applicant “has very limited ability to participate in his tribunal hearing as being required to recall his very traumatic experiences and memories from when his life was threatened by the Taliban and community in Pakistan is likely to temporarily  overwhelm his coping skills”; that having to answer questions will cause “[symptoms of trauma including flashbacks]”; and that returning to Pakistan would have “a devastating impact upon his mental health that would also most likely result in him being killed by elements of the Taliban and the community who continue to make repeated threats to kill him”.

19. The Tribunal notes that the severity of the applicant’s condition as described by the psychologist appears to be at odds with the limited psychological intervention of “intermittently scheduled” counselling sessions and one [dose of medication] a day. The Tribunal is satisfied the applicant was able to fully participate in the hearing and that he had a meaningful opportunity to present his claims. Further, whether or not the applicant will be harmed in Pakistan is a matter for the Tribunal to determine based on its assessment of all of the evidence and it is beyond the psychologist’s professional expertise to offer an opinion on this. Consequently, the Tribunal places little weight on this aspect of the psychologist’s report.

    Claims

20. The applicant claims he left Pakistan because his life was in danger due to his liberal, secular and atheistic views. He claims he believes in freedom of speech, equal human rights regardless of religion or gender, gay and lesbian rights and animal rights; and does not believe in any religion in general or in Islam in particular. He claims that Islam is the religion of war and terror and is not God’s religion but man-made.

21. He claims he received several threats from extremists and terrorists In Pakistan because of his religions views, that he will be killed by a furious mob or extremists or will be hanged under Pakistan’s blasphemy laws if he returns, that his family will be harmed and that the authorities cannot protect him as they have failed to protect other people with views like his and because the Pakistan establishment assists terrorists.

22. Before the Tribunal the applicant also claimed to have worked on the polio vaccination program in Pakistan during 2012, to have received three threatening letters from Tereek-e Taliban (the Taliban) and that the Taliban killed his polio team colleague in late 2012.

23. These claims are discussed below.

    - Questioning Islam

24. When asked to describe his current religious views at the hearing, the applicant said that, as of recently, he does not believe in any religion or god and believes purely in science and evolution. He said he came to this view by the end of 2010.

25. The applicant was raised in a Sunni family. He told the Tribunal his family was not strictly religious but would pray and read the Koran. The men in his family sometimes went to mosque but not regularly and he believed in Islam growing up. He said he wanted to understand Islam better and in 2009 purchased an Urdu Koran so he could read it and understand what it said.  The Tribunal noted that Islamic study is part of the school curriculum in Pakistan and he would therefore have engaged in a comprehensive study of the Koran at school. The applicant said not all of it. When asked if schools taught Islamic studies from an Urdu Koran, the applicant said they taught in Arabic but that was an option.

26. The applicant claims he started to ask scholars questions about Islam at the end of 2009. He claims he was still living at the university hostel [at] that time and when he went home in the holidays he visited the mufti at a religious [Institute] in his hometown. The Mufti was available for public consultation and people would line up to ask him questions. The mufti would usually be with five or seven students. The applicant told the Tribunal he spoke to the mufti four times over a period of three or four months from the end of 2009 until early 2010. He told the Tribunal he couldn’t remember the exact questions he asked but they were based on science. He has previously stated he asked the mufti if Mohammad was a good person in view of his 11 marriages including one to a nine-year-old girl; and why the Koran says the earth is flat and has seven skies and seven earths given this is in conflict with scientific fact. The mufti told him not to think too much about these things.

27. The applicant has claimed that, whilst he was [studying], he asked similar questions approximately once a month of a visiting scholar who became angry and told him to follow his faith. The applicant told the Tribunal that the scholar gave lectures in the mosque attached to his student hostel and students could ask him questions and that he asked the scholar a question on one occasion in 2009 or 2010 when he went to the mosque to read his prayers. The applicant said he had not left Islam at that time and was asking questions to increase his knowledge.

28. The applicant has claimed he was playing [sport] in [Town 1] in 2011 when a preacher interrupted the game and asked to preach. The boys he was playing [sport] with asked the preacher some questions and he also asked one question. He has previously claimed he asked the preacher why Muslim women cannot marry four men.  At the hearing, when asked if it was common for preachers to interrupt [sporting] games with preaching, the applicant said preachers sometimes came from nearby areas and would stay at a local mosque for a few days them move to another mosque. At the mosque, they would give lectures and teach people how to read their prayers.

29. The applicant told the Tribunal he sometimes attended mosque during this period of asking questions about Islam usually after he received threats (discussed below). He said he rarely attended mosque when he was living at the [hostel].

    - Threatening phone calls

30. The applicant claims to have received several threatening telephone calls because of his questioning of Islam.

31. The applicant told the Tribunal he received the first call in early 2011 on his mobile phone. The caller said, “You are not following Islam, follow Islam and if you do not, be ready for punishment”. The applicant told the Tribunal he was not attending mosque or funerals at that time. The Tribunal noted that neither he nor his family had attended mosque regularly when the applicant was growing and queried why he would have been threatened then. The applicant said the callers had doubts about him and realised he had left Islam so they started chasing him. The applicant claims his brother also received a phone call telling him to tell the applicant he should follow Islam. The applicant claims he attended mosque for three or four months after receiving the call then stopped.

32. The applicant claims he received a second call at the end of 2011. The caller said, “I’ve told you before to follow Islam and to be ready for punishment”. The applicant claims he spoke to his brother and went to mosque that evening. The applicant does not know who was making the calls. When asked how the caller would have his telephone number, he said all his friends had his number. When asked if his brother also received another call, the applicant said he did and the caller told his brother he [had] to explain to the applicant. The applicant claims he began attending mosque after this call.

33. The applicant claims he received the third call at the beginning of 2012 after he spoke to the preacher at the [sporting] game. He claims his brother also received a call at that time.

34. The applicant claims his brother continued to receive calls after the applicant came to Australia asking when the applicant would return. He did not know if his brother received any calls in the period between the third call at the beginning of 2012 and when the applicant left Pakistan in January 2013. The applicant claims he received a phone call from his brother in March 2013 telling him he could not return home.

35. The applicant told the Tribunal he attended mosque during 2012 however he was very busy with two jobs and only went when he had time, sometimes once a month and sometimes once a week.

36. The applicant stated he does not know the identity of the caller or callers or if they are associated with a group or organisation. He claims he could not report the calls to the Pakistan authorities as he would be arrested under Pakistan’s blasphemy laws.

37. When asked by the delegate why he remained in Pakistan for a year after receiving the third call, the applicant said he was waiting for the grant of his [temporary] visa and mostly remained at home during this time. He also told the delegate things had stabilised after he returned to the mosque and he stop discussing his views with the community.

    - Findings

38. The Tribunal accepts the applicant was raised in a Sunni family who prayed and believed in God but did not attend mosque regularly. 

39. As discussed with the applicant, Islamic study is a component of the school curriculum in Pakistan and the Tribunal is satisfied the applicant would have had access to an Urdu Koran and learnt the teachings of the Koran at school. However, the Tribunal accepts the applicant may have bought an Urdu Koran in 2009.

40. The Tribunal accepts the applicant may have questioned a mufti at a religious institution in [Town 1] about aspects of Islam on three or four occasions when he was home on holidays. The Tribunal is satisfied that any such questioning occurred during 2009 as documents provided by the applicant [indicate]. The Tribunal accepts the applicant may have questioned a scholar at the mosque attached to his university on one occasion in 2009 when he was at the mosque reading his prayers. The Tribunal does not accept the applicant questioned the scholar once a month or that the scholar became angry with him as he has claimed given he gave different evidence at the hearing, namely that he asked the scholar a question on one occasion and that he was seeking to better understand Islam. The Tribunal does not accept the applicant asked a question of a preacher who interrupted his [sporting] match in 2011 as the Tribunal finds the claim that a preacher interrupted a [sporting] match in order to preach to be implausible. In any event, even if the preacher did interrupt the game, which the Tribunal does not accept, according to the applicant’s own evidence he was just one of a number of young men who asked the preacher questions.

41. The Tribunal does not accept the applicant's questions signified he had left Islam.  According to the applicant’s own evidence, he had not left Islam and was seeking to expand his own knowledge when he questioned the mufti and the [scholar]. His questions of the mufti were about the relationship between Islamic teachings and science, questions which presumably have been asked many times and about which religious scholars would be expected to provide some teaching. His question to the scholar [was] to increase his knowledge and occurred whilst he was at the mosque reading his prayers. The Tribunal does not accept that the questions or the circumstances of their asking would give rise to a concern in observers that the applicant had abandoned Islam.

42. Therefore, there does not appear to be any reason why the applicant would receive threatening calls in early or late 2011 or in 2012 accusing him of not following Islam and the Tribunal does not accept he was threatened. Further, there is no apparent reason why the claimed calls would take place more than a year after the applicant asked his questions or how anyone in [Town 1] would know he asked a question of a scholar in [another location] in 2009 or why the applicant's non-attendance at mosque during 2010-2011 would have led to threats given that, according to his own evidence, neither he nor his family members attended mosque regularly when he was growing up.

43. As the Tribunal does not accept the applicant was accused of abandoning Islam or that he was threatened, the Tribunal does not accept the applicant's brother received any threatening calls in relation to the applicant either whilst the applicant was in Pakistan or after he left or that the applicant's brother told him in 2013 that he could not return home.

    - His religious beliefs

44. The applicant told the Tribunal he began researching Islam to increase his knowledge not to prove it wrong. When the mufti refused to answer him, he began researching on the internet and things came up that go against the laws of nature, including that women were created from the ribs of a man and that the earth is flat. When asked what turned him against Islam he said he wondered why Muslims go to heaven and non-Muslims go to hell because that means a lot of people go to hell. He said that Islam believes it is right and everyone else is wrong. He came to think this was wrong and a means of controlling people and that Islam is man-made not God-made. In the beginning he kept God separate from religion and believed there was a supernatural power that controls everything however he did further research and after he was refused by the delegate and found there is no such thing, everything is science and no-one has seen God in a physical form. He became a non-religious person. 

1. When asked whether he really believes there is no God or whether he is adopting this position because the delegate did not accept he was an atheist, the applicant said he came to know through his research that atheists don’t believe in God and everything is science. When asked how he thinks the world was created he said there was a nebula and he does not believe in Islam.

2. When asked his attitude to believers of Islam, the applicant said he doesn’t judge, everyone has the right to follow whatever they want, and he would not be compelled to express his opinion. The applicant previously told the delegate he only feels compelled to give his opinion on religion when forced to and he respects other people’s religion and does not feel it necessary to discuss his own views with them. He stated he has not openly discussed or expressed his views in Australia.

3. The applicant told the Tribunal he has not attended mosque in Australia as he has no reason to because he has no further questions about Islam. When asked how being an atheist has shaped his daily life, he said he has rid himself of stupid questions. He told the Tribunal he does not pray or observe Ramadan and drank alcohol once but the police stopped him and charged him with driving under the influence.

4. The applicant told the delegate he was not a member of any atheist group or association in Australia, however, the delegate’s decision records that he advised the delegate after the interview that “you asked me about an organisation of atheists in Australia so [the representative] gave me a person, his name is [name] and we usually meet every fortnight and for breakfast or for lunch and stay for about 3 to 4 hours and I discussed everything I want but I am not discussing religions anymore because it’s everyone’s personal matter”.

5. The applicant told the Tribunal his family are aware of his religious views. They are upset and glad he is not in Pakistan. When asked if he would attend mosque if he returned to Pakistan, he said he doesn’t want to but if he received any more calls he would have to go. He would have no choice.

6. The Tribunal discussed country information with the applicant which indicates atheism is on the rise in Pakistan particularly amongst young people. The applicant said they must be in hiding because the punishment for leaving Islam is death.

   - Blasphemy accusation

7. The applicant claims his brother told him in March 2016 that [police officers] and [community elders] had visited his home in February 2014 in relation to a complaint that the applicant had committed blasphemy. The applicant claims the report was not pursued because his brother told them the applicant was in Australia.

8. When asked why his brother waited until 2016 to tell him about this complaint in 2014, the applicant said he was not able to contact his brother or he didn’t answer his phone. His family stopped responding to him in February 2014 because they were scared. The applicant told the Tribunal he had no other information about the blasphemy accusation.

9. When asked how he had blasphemed, the applicant said he had given up Islam and was thinking against the Koran.  The Tribunal noted the applicant had raised some questions some years before the accusation was allegedly made, had not actually insulted Islam, and had continued to attend mosque prior to leaving Pakistan. The Tribunal discussed country information about blasphemy with the applicant. The applicant stated that there are many other cases the media don’t know about.

10. It is an offence under Pakistan’s Penal Code to defile a place of worship with intent to insult the religion of any class. Country information indicates the provision applies to all religions but punishments most often arise in relation to insulting Islam. The penalties extend to death or life imprisonment and as at September 2015, there were 38 people awaiting execution. Blasphemy accusations are often misused to settle personal or property disputes and disproportionately affect members of minority religions.[1]

    - His liberal views

    [1] DFAT, 2016, DFAT Country Information Report Pakistan, 15 January

11. When asked if his liberal views would cause him harm in Pakistan, the applicant said he never discussed these with anyone however his support for gays and lesbians and animal rights is not acceptable. When asked who would harm him for holding these views, he said no one specifically, it could be anyone. When asked why he would be harmed given he has not expressed his views in the past, the applicant said he would not state his views but it might be an issue if someone asks him. The Tribunal noted that thousands and possibly millions of people in Pakistan would hold similar, liberal views. The applicant said that people don’t speak openly. Later in the hearing, the applicant told the Tribunal he would definitely speak about human rights, women’s rights and animal rights if all the fear from the Taliban has disappeared.

    - Findings

12. The Tribunal does not accept the police and elders visited the applicant's family in February 2014 in relation to a complaint he had committed blasphemy. For the reasons set out above, the Tribunal does not accept the applicant had asked any questions or conducted himself in a way that may have been perceived as blasphemous. Further, it is implausible that a complaint would have been lodged more than four years after the applicant last asked any questions about Islam and a year after he left Pakistan; and that the applicant's brother would have waited two years before telling the applicant about the complaint. The Tribunal does not accept the applicant could not contact his brother during this time or that the applicant's family stopped responding to him in February 2014 because they were scared. Further, if a complaint had been made, which the Tribunal does not accept, the Tribunal considers the applicant would have been able to provide details.

13. The Tribunal has found the applicant not to be a witness of credit in relation to his claims of having been threatened in the past because of his religious views and his polio work (discussed below). Given the extent of the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept the applicant has rejected Islam as he claims and does not accept the applicant is an atheist. Further, the applicant’s evidence that he only realised the non-scientific aspects of Islam in 2009 when he bought an Urdu Koran is implausible given that Islamic studies is part of the school curriculum in Pakistan indicating that the applicant would have been aware of the non-scientific aspects of Islam before 2009 (and noting that any belief in a supernatural god is in itself unscientific). Further, the applicant has changed his evidence as to his beliefs following the delegate’s decision at which time he had indicated he believed in a God even though he had concerns about Islam. His evidence indicates he did further research after the delegate’s decision to better understand atheism in order to present himself as an atheist.

14. The Tribunal accepts the applicant may not be a devout Muslim, may find some aspects of Islamic doctrine to be incompatible with science, may not be practicing his religion in Australia and may not be a regular practitioner in Pakistan. The Tribunal does not accept the applicant holds anti-Islamic views that would cause him harm in Pakistan. In any event, the Tribunal is satisfied the applicant considers his views on Islam to be a personal matter and does not feel compelled to espouse his views in public and will not do so. The Tribunal notes the applicant did not attend mosque regularly growing up in Pakistan and did not suffer any harm arising from this intermittent attendance.

15. The Tribunal accepts the applicant may support a range of human rights including women's rights and gay rights and animal rights. The Tribunal notes that Pakistan is a country of 180 million people and that such a huge population will encompass a range of views on such rights. The Tribunal notes that Pakistan has an active civil society, a range of human rights organisations and a Human Rights Commission indicating that human rights are discussed and promoted in Pakistan. [2] The Tribunal accepts the applicant has not discussed his views in the past, including in Australia, indicating he does not hold them with any particular passion, and has not been harmed in the past because of his views. The Tribunal is satisfied the applicant will not publicise his views or seek to convert others to his views. In any event, the Tribunal does not accept that merely holding or expressing views in favour of human rights or animal rights will cause the applicant any harm in Pakistan.

    [2] DFAT, 2016, DFAT Country Information Report Pakistan, 15 January

16. Having regard to all of the above, the Tribunal does not accept the applicant faces a real chance of serious harm or a real risk of significant harm because he may not accept all aspects of Islamic teaching and may hold liberal views.

    Polio vaccinator

17. In his statutory declaration dated 27 September 2016, the applicant claimed for the first time that he worked in the polio vaccination program between 2010 and 2013, that he received three threatening letters from the Taliban, that his colleague was shot and that this family was beaten by the Taliban about a month after he left Pakistan. He also provided a number of documents in support of these claims.

18. When asked why he did not declare this employment in either his [temporary] visa application or his protection visa application, the applicant said that, in relation to his [temporary] visa application he provided all the documents to the agent and the agent told him he would not get the visa if he mentioned this employment. The agent did not say why. He didn’t mention it in his protection visa application because he hadn’t mentioned it in his [temporary] visa application and because he wasn’t making any claim in relation to it. When asked why he made no claim if he had received death threats, the applicant said a friend told him that atheism was his stronger claim and to mention his other claims later. After he was refused by the delegate [a] lawyer said he could mention it.

19. The applicant claims he had been working two or three days a week for [Company 1] and applied for a position on the polio program because he had free time. He claims he was offered a position as a polio vaccinator at the end of 2011 on a three year contract with a salary of [amount] rupees a month. He claims he commenced this work in January 2012 for two or three days a week. His role was as a ‘[role]’ which he explained was to make people aware and to educate them. He worked closely with another man called [Mr A] and a woman called [Ms B]. They drove from town to town. They divided up the households in a selected area and he and [Mr A] went door to door speaking to the men. If no one answered the door, [Ms B] went inside to speak to the women.  They collected information about the about the family including any children under five years of age. If the family refused vaccination they visited a second time to try to persuade them. If the family refused again they wrote down the reason for refusal and a doctor or a religious scholar would then talk to them.

20. The applicant stated he was employed by the Health Department and the World Health Office (WHO). He had an ID card from the Health Department.  Other NGOs were also involved in the program. His team worked out of a central office in [City 1]. They and another team working from the [City 1] office were responsible for covering Khyber Agency in the Federally Administered Tribal Area (FATA). They began each day at the office before driving to Khyber agency and they returned to the office at the end of the day. Their supervisor was [Mr B] and he was employed by the Health Department. There were other teams working in other areas of FATA. He does not know where they obtained their paperwork. Other teams also worked in KPK. He doesn’t know where their office was. When asked if there was an Eradication of Polio Initiative office in FATA, the applicant said that [Town 2] Hospital was the main office in FATA.

21. When asked if he has any documents to support this employment such as a written contract the applicant said he has provided a payslip and a letter from the Agency Surgeon at [Town 2] Hospital.

22. The applicant provided the following documents:

    ·a certificate dated [December] 2011 stating he has successfully completed training entitled ‘[deleted]’ [and] signed by the Deputy Director of the Eradication of Polio Initiative;

    ·a letter of appointment from the [Agency 1] at [Town 2] (Khyber Agency) dated [January] 2012 stating he has been selected as a polio [occupation] for the polio eradication initiative program;

    ·a payslip from the [Agency 1] at [Town 2] dated [July] 2012 for the amount of Rs.[amount];

    ·When asked to explain the term ‘[deleted]’ the applicant said he was a [role];

    ·an Experience Certificate signed by the FSMO at the Civil Hospital [Town 2] stating he worked as a [occupation] for the Polio Eradication Program at [Town 2] Khyber Agency from January 2012 to October 2012;

    ·a Certificate of Commendation signed by the Governor of Khyber Pakhtunkhwa awarded to the applicant for exceptional services to the polio eradication program in FATA during the June 2012 campaign; and

    ·a Government of Pakistan Service Card identifying the applicant as [Occupation]-EPI and his office address as Civil Hospital [Town 2], Khyber Agency

23. The applicant claims he received two threatening letters whilst working on the polio program.

24. The applicant claims he and [Mr A] each received a letter in May 2012. He does not know if other team members received a letter. He doesn’t think [Ms B] received a letter as she would have told them. The letter was from Tehreek-e Taliban and said, “This work is against Islam, you are upsetting God by helping non-believers. Cease this work”.  His supervisor told him the letter was not a big deal and might have been sent by someone who wanted their jobs. The Tribunal expressed surprise at this casualness as polio workers had been killed in 2012. The applicant continued working on the polio program.

25. The applicant claims he and [Mr A] received a second letter in August 2012. [Ms B] did not receive a letter. [Mr A] and his supervisor were casual about the letter and told the applicant the Taliban would have killed him if they were serious. The Tribunal again expressed surprise at this casual response and also at the absence of threat to the female team member given that the Taliban has specifically targeted lady health workers.[3] The applicant stated that [Ms B] stayed in the car unless no one answered the door at which point she would go to the house.

    [3] International Crisis Group, 2015, Winning the War on Polio in Pakistan, 23 October

26. The applicant claims that [Mr A] was killed in 2012. He provided a report from [a newspaper] dated either [September] 2012 or [October] 2012. According to a translation provided by the applicant, the report describes the shooting of [Mr A] at [location] in Khyber Agency by unknown assailants and states that [Mr A] and the applicant had both received threatening letters from the Taliban and that the applicant received “intimation on his mobile that Taliban had killed him” and was urged to escape and that he escaped and went back to [District 1] and was saved from any untoward accident.

27. The [newspaper] appears to be an e-paper published from several cities in Pakistan. The applicant told the Tribunal he does not have a copy of the entire paper downloaded from the website and that he obtained the report from a data [base] [in] Khyber Agency. The Tribunal located the [website]. It appears to be a news source for Khyber [Agency].

28. The applicant referred to a report on [the website] dated [February] 2016 entitled ‘[deleted]’. The report, which was sourced from [a source], states that “[details of death of polio worker” and that [Mr B] was a contractual employee of the Health Department.

29. The applicant claims he stopped working on the polio program and for [Company 1] after [Mr A] was shot and stayed [home]. When asked why he remained in Pakistan until January 2013, the applicant said the visa agent would not release his documents until he was paid.

30. The applicant claims the Taliban went to his house looking for him in February or March 2013 and took away a photograph of him. When asked why the Taliban would wait some months before looking for him, the applicant said that [Mr A] was an easy target in FATA but as there are police in his area, it might have taken the Taliban a bit longer to find him.

31. The Tribunal noted that, in general, the Taliban has targeted polio workers whilst they were in the field administering vaccinations and expressed doubt the applicant would be targeted on return to Pakistan because he worked on the polio program in 2012. The applicant said the Taliban pursues easy targets and killed four people in the week of the hearing. He has been targeted by the head (emir) of the Taliban and the Taliban would not spare him. Other people who worked for NGOs were warned and went to a different area and were killed. When asked if he would resume working for the polio program if he returns to Pakistan, the applicant said he would definitely do so if the danger from the Taliban was finished.

32. Country information indicates that militants have targeted polio workers in Pakistan since the US used a government health team to identify and gather information about Osama Bin Laden in May 2011.  Between December 2012 and September 2015, militants killed 78 polio workers and accompanying police officers, mostly whilst they were conducting door to door immunisations. Some were killed whilst in transit to and from the vaccination areas.[4] Media reports indicate that polio vaccinators and police were also killed in 2016.[5] Each national immunisation drive involves 200,000 workers and 40,000 supervisors.[6]

    [4] Ibid

    [5] ‘Pakistani polio workers under attack since 2012, The International News, 23 April 2016; ‘Pakistani Taliban kill seven police officers guarding polio workers’, The Guardian, 20 April 2016

    [6] International Crisis Group, 2015, Winning the War on Polio in Pakistan, 23 October

33. The Tribunal discussed with the applicant the credibility concern arising from the late presentation of this claim.  The applicant’s advisor submitted that the applicant may have shown poor judgement in not making the claim but that is different to whether or not the claim is plausible; that the applicant has provided detailed and consistent evidence; and that the Tribunal should give the applicant the benefit of the doubt particularly given the risk factors involved. The advisor noted there were attacks on polio workers during 2016; that Islamic leaders perceive polio workers to be spies; and that polio workers in the tribal areas are more at risk.

34. The advisor submitted the applicant’s claims must be assessed as a composite. He is a non-believer who holds liberal views including opposition to Islamic extremists. He has spent time in the west and he has been involved in a vaccination program that has been imputed to be a cover for American spies. If he resumes working for an NGO, particularly in Peshawar, and lives his life in accordance with his views such as women’s rights, better education and scientific views inconsistent with Islam, there is a more than remote chance he will be targeted by an extremist community member including by being accused of blasphemy.

    - Findings

35. The Tribunal does not accept the applicant worked on the polio vaccination program during 2012 for the reasons set out below.

36. The applicant made no mention of this claimed employment or threats or killing of his colleague in his protection visa application or at his delegate interview. The Tribunal does not accept the applicant omitted this employment because he hadn't mentioned it in his [temporary] visa application; or that a friend told him his atheism claim was stronger given that the Taliban has targeted and killed a number of polio workers since 2012. The Tribunal considers it implausible the applicant would not have mentioned he was threatened by Taliban during 2012 because of his polio work and his colleague was killed had these events occurred.

1. There are a number of inconsistencies between the applicant's oral evidence and the documents he has provided in relation to his claimed employment. The applicant claims to have been employed by the Department of Health, to have worked in Khyber Agency in FATA, to have worked from a central office in [City 1] in KP and to have had a supervisor in [City 1] called [Mr B] yet the documents he has provided indicate he was employed by the [Agency 1] at [Town 2] in Khyber Agency in FATA, was paid by the [Agency 1] and his office address was the Civil Hospital in [Town 2]. Further, he has provided a certificate of commendation for his exceptional services to the polio program in FATA signed by the governor of Khyber Paktunkhwa who has no jurisdiction in relation to FATA. Further, whilst the applicant claims to have been a "[role]", the documents refer to his training as a "[deleted]" and his employment as a [occupation].

2. Having regard to the concerns set out above, the Tribunal does not accept the applicant worked on the polio vaccination program in 2012. The Tribunal therefore does not accept the applicant received any threatening letters from the Taliban in 2012. As the Tribunal does not accept the applicant worked on the polio program or received any threatening letters, it does not accept the article from the [newspaper] referring to the shooting of [Mr A] and the threats to the applicant is a genuine news report and places no weight on it. The Tribunal accepts that a polio worker called [Mr B] went missing from Khyber Agency and was found dead in Peshawar in February 2016 but does not accept the applicant had any involvement with this person.

3. The Tribunal does not accept the Taliban went to the applicant's house in February or March 2013 looking for him or that the Taliban took away a photograph of him. As the Tribunal does not accept the applicant worked for the polio program in the past, it does not accept he will do so again in the future, In any event, as the applicant said he would only do so if it was safe.

4. The Tribunal notes that Pakistan is a diverse country of 180 million people. Whilst Islamic extremist groups are active in Pakistan, most Pakistanis are moderate and do not support such extremism. The Tribunal does not accept the applicant has been targeted by extremists in the past and does not accept he will be targeted by extremists in the future merely because he opposes extremism.  The Tribunal also notes that thousands of Pakistanis travel to the west for work, study and tourism and thousands more live permanently in western countries and return to Pakistan regularly to visit relatives. Western films, music and clothing are widely available throughout Pakistan, particularly in large urban areas, and English is one of the official languages of Pakistan. [7] The evidence before the Tribunal does not indicate that Pakistanis returning to Pakistan are targeted or harmed because they have spent time in the west and the Tribunal does not accept the applicant will be targeted because he has lived in Australia.

   [7] DFAT, 2016, DFAT Country Information Report Pakistan, 15 January

   Refugee assessment

5. Having regard to the evidence and findings of fact above, the Tribunal does not accept the applicant faces a real chance of serious harm now or in the reasonably foreseeable future in Pakistan because of his religion, his actual or imputed political opinion or his membership of a particular social group of polio workers or Ngo workers, separately or cumulatively.

   Complementary protection assessment

6. Having regard to the evidenced and findings of fact above, the Tribunal does not accept there are substantial grounds for believing the applicant faces a real risk of suffering significant harm if removed from Australia to Pakistan because of his religious views, his liberal social views or because he worked on the polio program.

   CONCLUSION

7. 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).

8. 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).

9. 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

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

    Rea Hearn Mackinnon

    
    

    Member