1512321 (Refugee)

[2019] AATA 3603

1512321 (Refugee) [2019] AATA 3603 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512321

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Linda Symons

DATE:6 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2019 at 5:02pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – political opinion – Awami National Party – particular social group – family member of a NATO employee – supplying NATO in Afghanistan – perceived opposition to the Pakistani Taliban – returnee from a Western country – threatening letters and calls – fear of killing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 424, 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 and Border Protection 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, arrived in Australia [in] June 2013 as the holder of a [Student] visa that was valid until 15 March 2017. On 21 July 2014, he was granted a Bridging A visa in association with his application for a Protection visa. That visa expired on 19 August 2016 and he remained in Australia as an unlawful non-citizen. On 22 August 2016, he was granted a Bridging E visa.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 17 July 2014 and the delegate refused to grant the visa on 31 August 2015. On 9 September 2015, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The hearing was adjourned to 29 August 2018. He appeared before the Tribunal again on 29 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

5. The applicant was represented in relation to the review by his registered migration agent [who] attended both hearings.

6. The issues that arise on review are whether the applicant is owed Australia’s protection under the Refugee Convention or under the complementary protection criterion.  

   RELEVANT LAW

7. 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.

   Refugee criterion

8. 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).

9. 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.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

    Complementary protection criterion

11. 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’).

12. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

13. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

    Applicant’s claims

15. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He was born on [date] at [location] in the town of [Town 1], Mansehra in the State of Khyber Pukhtoonkhwa in Pakistan. He is a citizen of Pakistan. He arrived in Australia [in] June 2013 as a student.

    ·His father is a member of the Awami National Party (ANP). He has worked as an [occupation 1] for [Business 1]. He would frequently [travel] to Afghanistan to provide NATO forces with [resources].

    ·In April 2006, he went to a meeting at the house of a classmate, [named], where he met a number of other students. In May 2006, [the classmate] told him that his father was a financial contributor to the ANP and praised him for his involvement. He told him that he should play his role as an active member of the ANP. Another classmate also urged him to join the ANP. His mother warned him to stay away from politics as it was dangerous and told him that most of her family members who belonged to the ANP had either been killed or had fled Pakistan. His passion for helping people and his nation was stronger than his need to appease his mother so he joined the ANP. He began discussing the objectives and ideologies of the ANP with his classmates and friends.

    ·In November 2009, his uncle, [named], was killed by the Taliban. He was a member of the ANP and was living in Swat.

    ·In 2011, one month before leaving, his brother, [Brother A], was attacked by the Taliban and shot in the leg. He was forced to flee to [Country 1] to evade death. The Taliban had vowed to kill him and he knew that they would follow through with this threat if he did not leave the country.

    ·In March 2014, his father’s [vehicle] was [attacked] by the Taliban. He managed to escape. In May 2014, his father was attacked on his way home. The Taliban left a note on the doorstep saying they would kill all members of his family because his father delivered [resources] to NATO forces. His father does not work as [an occupation 1] anymore as he is afraid. He does not live in his house and moves continually from place to place to avoid an attack. He has told him and his brother not to return to Pakistan. He told him that he may never see him again because he knows that he will not be able to evade the Taliban forever.

    ·He has advised his brother, [Brother B], to leave Pakistan because his life is in danger. He plans to do so as soon as he has an opportunity as the Taliban is pursuing him. The Taliban want to inflict the most serious harm possible on his family.

    ·He has been living in Australia since June 2013. The Taliban believe that he has been brainwashed by Western beliefs and culture and is now part of Western society.

    ·He has been a member of the ANP and his father has been assisting the NATO forces as an [occupation 1]. For these two reasons the Taliban will kill him if he returns to Pakistan.

    ·He is under a lot of stress and is anxious about the possibility of being sent back to Pakistan. He cannot study because of these stressors and anxiety. He wants to have a future and does not want to die. He wants to live his life in a peaceful environment where he will be protected from attacks. He hopes to be able to live his life without fear and enjoy the rights and freedoms of those who live in a safe country like Australia.

16. The applicant has provided to the Department a copy of his Pakistani passport, Student visa grant notice and letter, [college] Certificate of Achievement, Secondary School Examination Certificate, Detailed Marks Certificate, Character Certificate, two Provisional Certificates, IELTS Test Report Form, [second college] Certificate, two Certificates from [a] Company,  Course Completion Certificate from [a third] College, Academic Transcript from [the third] College, a Family Registration Certificate and an ANP Membership Card.

17. The applicant’s migration agent provided written submissions dated 10 July 2014, 27 January 2015 and 2 February 2015 to the Department.

18. The applicant attended an interview with the Department on 27 January 2015. During that interview, he re-iterated and expanded on his written claims. On 31 August 2015, the delegate found that he is not a person in respect of whom Australia has protection obligations.

19. The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated 31 August 2015. He has also filed with the Tribunal an undated Statutory Declaration by himself, copies of his Pakistani passport, five payslips in his father’s name, a letter dated [February] 2015 from [an official] of the ANP [District 1] in relation to him, a letter dated [in] June 2018 from the [official] of the ANP [District 1] in relation to his father, an ANP card (without an English translation), a letter dated [December] 2015 from [Business 2] in relation to his father’s employment, a Police Report from [a named] Police Station dated [in] August 2016, a newspaper article in [a named newspaper] dated [in] September 2016, a letter dated [October] 2016 from [a named medical] Centre in relation to him, prescriptions, photographs, a [welfare] Summary of Psychological Treatment for him dated [in] August 2018, an Interim Transcript from [a fourth college], a Course Completion Certificate and an Academic Transcript from [the third] College, an IELTS Test Report Form dated [December] 2012, a Pakistan National Identity Card for his father, an USB containing three video recordings, a transcript of the three recordings translated into English, two Statutory Declarations from the interpreters, English translations of newspaper articles in relation to his father and country information.      

20. The Tribunal has received written pre-hearing submissions dated 18 July 2018 and post hearing submissions dated 20 September 2018 from the applicant’s new migration agent.

21. In his undated Statutory Declaration, the applicant made a number of new claims which are summarised as follows:

    ·He had difficulties understanding the interpreter at his interview with the Department on 27 January 2015 as the interpreter was an Afghan speaking Pashto. He stated that this impacted on the evidence he gave during the interview. He stated that he regretted not saying that he was having problems understanding the interpreter during the interview. He stated that he did not want to be disrespectful to the interpreter.

    ·He provided further details of his father’s employment as [occupation 1] and the Taliban attack on the [vehicle in which] his father was [traveling] in March 2014.

    ·He stated that a few days after his father was attacked on his way home in May 2014, his attackers went to their home and took salary slips and other important documents. He stated that they left a threatening Notice on the door.

    ·He left Pakistan in 2009 and went to [Country 2] to study. He was there until September 2012. While he was in [Country 2], the situation in Pakistan became worse and his father advised him to stay there as long as possible. After he completed a Diploma his father was unable to send him the money to do another course so he was forced to return to Pakistan.

    ·When he was detained in immigration detention in [Country 2], he was given a statement to sign. He did not understand what it was. When he was about to be taken to the deportation centre, reference was made to the statement he signed which said that he had not complied with the Student visa requirements and he was deported (from [Country 2]). He was told that, because he had not been living illegally in the community, a ban would not be placed on his return and he could apply for another Student visa from Pakistan. His airfare was paid for by [Country 2] government.

    ·When he was in [Country 2], he found out that his brother had been shot in 2011. He was scared, depressed and cried. He was afraid to return to Pakistan. He was not aware that he could apply for asylum in [Country 2]. If he had known this, he would have done so.  

    ·He was in Pakistan for 9 months prior to coming to Australia. The situation in Pakistan was very bad. He was afraid that he would be unsafe if he continued living there because he was a member of the ANP and because of his father’s work.

    ·When he arrived in Australia, he completed a 10 weeks English course and then commenced studies for a Bachelor [degree]. He attended for 6 months but failed subjects because he was stressed and worried about his family so he stopped going to classes.

    ·He had no intention of applying for a Protection visa at that time as he was unaware this was an option. He wanted to stay in Australia. He did not speak to friends about his situation. In mid- 2014, his father told him that he had stopped working because his work was placing his family in danger and he quit his job for his family’s safety. His father told him that he needed to send them money to support the family.

    ·This made it impossible for him to continue the degree and he enrolled in a Diploma. He was unable to focus on his studies because of his anxiety, missed classes and received emails from the College that the Department would be informed. A friend advised him to lodge an application for a Protection visa because of his family situation and his mental health. He was referred to a migration agent who helped him to lodge his application for a Protection visa.

    ·His migration agent made submissions to the Department that his father was a high ranking member of the ANP. This is not correct and he never stated this. His father never held an official position in the ANP at that time. However, he made donations to the ANP when he was working.

    ·[In] May 2018, his father was nominated for the position of [Official 1] of the ANP Union Council for [Town 1] and continues to hold this position. His father spoke at a rally in Mansehra condemning a terrorist attack in Peshawar [in] July 2018 which targeted an ANP meeting. The delegate was not satisfied that any member of his family had participated in political action to develop a political profile in Pakistan. His father sent him a video of him giving a speech at an ANP political event supporting [a candidate] so this is no longer correct.  

    ·His father has told him that he wants to keep working for the ANP because he gave an oath that he would do everything he could to support the party. It is difficult for him to speak to his father because of poor telephone reception and because he is often moving around.

    ·His brother, [Brother C], completed [grade] in 2017 and went to Islamabad to apply for admission to a college in an area called [name]. After a few days, his parents were unable to contact him and his friends in Islamabad had no contact with him. His father sent his eldest brother, [Brother A], to Islamabad to find him. When his brother was unable to find him, he went to the Police and lodged a First Informtion Report (FIR). [Brother A] told the Police about his family’s involvement with the ANP and his father’s work with NATO. A few days later, his father received a telephone call from a person who spoke in Pashto and told him that he was warned to quit the party and stop supplying [resources] to NATO. His father replied that he had stopped working but the caller said he still worked with the ANP and supported them. The caller told his father that [Brother C] had been taken to Afghanistan. His father has not heard from him since then. His father told him he had not reported this to the Police as they cannot do anything because [Brother C] is in Afghanistan.

22. On 24 July 2018, the Tribunal received a letter by email from the applicant’s migration agent. In that letter, he stated that new information had come to light since the applicant filed his Statutory Declaration. He stated that the applicant’s [Brother B] was attacked by the Taliban [in] April 2013 when shots were fired at a car he was travelling in. He stated that the applicant was not informed of this attacked by his brother or other members of his family until last week which is why this incident was not mentioned in his Statutory Declaration or application for a Protection visa. He stated that there is an error in his brother’s Statutory Declaration in that it states that he informed the applicant of this attack and this is incorrect.

    Country of reference/Receiving country

23. The applicant claims to be a citizen of Pakistan and has provided a copy of his Pakistani passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Pakistan. The Tribunal finds that Pakistan is his country of reference for the purpose of assessing his claims for protection under the Refugees Convention and his receiving country for the purpose of assessing his claims for protection under the complementary protection criterion.

    Third country protection

1. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Assessment of claims

2. The applicant gave evidence that his application for a Protection visa was prepared by his former migration agent based on his instructions which were true and correct. He stated that he is satisfied that his visa application is accurate. He stated that his visa application is incomplete as he did not provide supporting evidence in relation to his father’s employment and he did not mention that his [Brother B] was attacked as he was not aware of that until recently. He stated that there have been no changes in his circumstances since he filed his visa application.

3. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Pakistan, his time in [Country 2], his reasons for leaving Pakistan and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be vague, lacking in detail, misleading, inconsistent, implausible and unconvincing. He made new claims throughout the process. His conduct prior to coming to Australia and after coming to Australia was not consistent with his claims.

4. In his visa application, the applicant claimed that his father worked as an [occupation 1] for [Business 1]. He claimed that he would frequently [travel] to Afghanistan to provide NATO forces with [resources].

5. The applicant provided to the Department a copy of a letter dated 30 April 2015 from [Business 1]. It indicates that the applicant’s father was employed by this company as [an occupation 1] from December 1994 to May 2014. It indicates that his duties included [supplying resources] to NATO forces in Afghanistan. It indicates that their [staff] have been targeted by the Taliban numerous times on the dangerous route and that he had been a victim of an attack.

6. The applicant provided to the Tribunal a letter dated 17 December 2015 from [Business 2] which stated that the applicant’s father was employed by this company as an [occupation 1] until mid-2014. It stated that he seized his duties from late 2011 to mid-2012 due to the closure of the Tourkhan border. He also provided to the Tribunal copies of several payslips issued to his father that were titled [Business 1] Employee Salary Advice and a Dividend Slip from the same organization. 

7. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 25 May 2018 which indicates that during his interview with the Department on 27 January 2015 the delegate put to him country information which indicated that NATO supply routes between Pakistan and Afghanistan in the State of Khyber Pukhtoonkhwa were temporary closed in protest by provincial government authorities during the period from November 2011 until July 2012 and he responded that his father continued to work within the Pakistani borders. He has subsequently claimed that he had problems giving evidence during his interview with the Department because the interpreter was an Afghan speaking Pashto and not a Pakistani speaking Pashto.

8. The applicant has filed with the Tribunal an undated Statutory Declaration on 18 July 2018 in which he reiterated that his father worked within Pakistan during the period from November 2011 until July 2012. However, the letter dated 17 December 2015 from [Business 2] indicates that his father seized his duties from late 2011 to mid-2012.

9. The Tribunal raised as an issue with the applicant the inconsistencies in the evidence in relation to his father’s employment. He responded that his father worked as a subcontractor for NATO through [Business 1]. He stated that he used to [perform his work] within Pakistan. He stated that when the USA attacked Afghanistan there were many companies in Pakistan that got contracts with NATO. He stated that his father was subcontracted from [Business 1] to that company. He stated that he would like his migration agent to respond in writing to this issue at a later date. He was given time to provide a written response.

10. In his Statutory Declaration dated 10 August 2018, the applicant stated that his father would collect [resources] from [Business 1] at [Karachi], [travel] to Afghanistan and deliver it to the company in Afghanistan. He stated that that company had the contract with NATO and delivered [resources] to NATO forces.  He stated that his father did not deliver the [resources] direct to the NATO forces.

11. The Tribunal has some doubts in relation to the applicant’s father’s employment but is prepared to give him the benefit of the doubt.

12. The applicant has claimed that because of his father’s work in supplying [resources] to NATO forces in Afghanistan his father was targeted by the Taliban. In his visa application, the applicant claimed that in March 2014 his father’s [vehicle] was [attacked] by the Taliban but he managed to escape. He has filed with the Tribunal a copy of the Department’s Decision Record dated 25 May 2018 which indicates that during his interview with the Department on 27 January 2015 he stated that his father was not in his [vehicle] when it was [attacked]. He has subsequently claimed that he had problems giving evidence during that interview because the interpreter was an Afghan speaking Pashto and not a Pakistani speaking Pashto.

13. The applicant has filed with the Tribunal an undated Statutory Declaration in which he reiterated that his father was not in his [vehicle] when it was [attacked]. He stated that his father told him that the attackers were hiding behind big boulders near the road and one of the attackers stood up, shouted at him and fired his gun. He stated that his father stopped the [vehicle], he and the [colleague] got out of the [vehicle] and ran away. He stated that when his father looked back he saw that the attackers had [attacked the vehicle] and there was lots of fire. The Tribunal is of the view that if the attackers intended harming the applicant’s father and the [colleague], they would have shot them whilst they were in the [vehicle] or after they got out of [it] or [attacked the vehicle] whilst they were still in it. The fact that one of the attackers revealed himself from his hiding place, shouted at the applicant’s father and fired his gun without causing injury to the applicant’s father or his [colleague] tends to indicate that the attackers’ target was the [vehicle] and not the [occupation 1s]. This is supported by country information in relation to the Taliban’s attack on NATO and the Western occupying forces in Afghanistan.

14. It is clear from the applicant’s own evidence that the [vehicle] his father was [in] was [attacked] when his father and [colleague] were not in the [vehicle] and were a safe distance away. It is of concern to the Tribunal that he has sought to mislead the Department by claiming in his visa application that his father’s [vehicle] was [attacked] by the Taliban but he managed to escape

15. In his visa application, the applicant claimed that in May 2014 his father was attacked on his way home. When asked about this, he stated that his father was on public transport on his way home when the vehicle was fired at. He stated that it was a small vehicle with 18 passengers. He stated that the driver stopped the vehicle, some of the passengers started crying, people gathered and his father “fled”. When asked how this was an attack on his father, he responded that the Taliban has its own intelligence in every village, it was not difficult for them to find a particular person, there were many religious extremists in the area and it was not easy to identify them. When the Tribunal pointed out that it could have been a random firing at the bus or the shooter could have been aiming at someone else, he responded that his father was a member of the ANP and was supplying [resources] to NATO. He stated that the Taliban got into his house and wondered why they went to his house. This is a new claim that he had not made in his visa application.

16. The Tribunal also finds this evidence to be contradictory, implausible and unconvincing. If the Taliban wanted to harm the applicant’s father, had its own intelligence in every village, were able to find his father without difficulty and knew where his father lived as he claims, the Tribunal would expect the Taliban to have shot his father as he entered or exited his home rather than shoot at a moving bus he was travelling in where there was a high likelihood of missing him or killing someone else. Further, if this was a failed attack on his father, the Tribunal would expect them to have attacked him again particularly if they knew where he lived and could have shot him as he entered or exited his home or if he continued to live in the Mansehra area. The Tribunal does not accept that his father was attacked on his way home in May 2014.

17. In his visa application, the applicant claimed that the Taliban left a note on the doorstep saying they would kill all members of his family because his father delivered [resources] to NATO forces. In an undated Statutory Declaration sent to the Tribunal on 18 July 2018, he made new claims that a few days after his father was attacked on his way home in May 2014, his attackers went to their home and took salary slips and other important documents. He stated that they left a threatening Notice on the door. He offered no explanation for why this claim was not made in his visa application.

18. The applicant gave evidence to the Tribunal that, a few days after the attack on the bus, the Taliban went to his house, went inside, took documents in relation to his father’s salary, put a poster on the wall and left. When the Tribunal noted that it was an odd thing to want to take his father’s documents in relation to his salary, he responded that they wanted to confirm if he was working with NATO and his contribution to the party. This is not consistent with his claims that the Taliban were already aware that his father was supplying [resources] to NATO forces in Afghanistan and this was the reason why his father’s [vehicle was attacked] in March 2014 and his father was attacked on his way home in May 2014. His evidence that they wanted to confirm his father’s “contribution to the party” is a new claim that he had not previously mentioned in his oral or written evidence.

19. The Tribunal asked the applicant what was on the poster that the Taliban put on the wall. He responded that it stated that his father belonged to a Communist family, his activities in the community were against their religion, he was a supplier to NATO, helping NATO or America was against Islam and that he should prepare himself for further attacks because his brother was killed.

20. Over time the applicant’s evidence in relation to what was left by the Taliban and where it was left has changed from it being a note left on the doorstep to a notice on the door to a poster on the wall. His evidence in relation to what was written on the note/notice/poster has also changed substantially from it saying that they would kill all members of his family because his father delivered [resources] to NATO forces to what is referred to in paragraph 42 above. These inconsistencies in his evidence, his failure to mention in his visa application that members of the Taliban had gone inside his home and taken his father’s documents in relation to his salary and a subsequent new claim that the Taliban wanted to confirm his father’s “contribution to the party“ raise concerns about the credibility of these claims.

21. In his visa application, the applicant claimed that his father does not work as [an occupation 1] anymore as he is afraid. He claimed that his father does not live in his house and moves continually from place to place to avoid an attack. He claimed that his father told him and his brother not to return to Pakistan. He claimed that his father told him that he may never see him again because he knows that he will not be able to evade the Taliban forever. This evidence is not consistent with subsequent evidence he has given. For instance, he gave evidence to the Tribunal that his brother, [Brother C], lived with his parents in Mansehra until he completed [Grade] in 2016. When asked how [Brother C] was able to attend school if he and his parents were continually moving from place to place, he responded that he was enrolled in a College and if you give the College a reason they may agree to you attending classes once a month if you have a problem. He stated that his brother mostly stayed at home and had private tutors. When asked how his [Brother C], was able to have private tutors if he and his parents were continually moving from place to place, he responded that he attended a private tuition centre.

22. The Tribunal finds this evidence to be implausible and unconvincing. The Tribunal is of the view that if the applicant’s [Brother C], attended a school/College and a private tuition centre he would have had to live within relatively close vicinity of those two institutions. Therefore, the area within which the applicant’s father could have moved would have been limited. In view of his evidence that the Taliban had intelligence in every village and that it was not difficult for them to locate a person, it is implausible that the applicant’s father would have remained in Mansehra and within relatively close vicinity of those two institutions if he was trying to avoid an attack by the Taliban.

23. Further, the applicant’s evidence is that after his father stopped working in May 2014, he was unable to assist him to pay his tuition fees in Australia and had to depend on his uncle in Karachi to support him and his wife. In these circumstances, it is highly unlikely that he would have been able to afford to pay for [Brother C] to attend a private tuition centre.

24. Further, the applicant subsequently made new claims that his father was appointed the [Official 1] of the ANP Union Council for [Town 1] [in] May 2018 and spoke at a rally in Mansehra in July 2018 condemning a terrorist attack in Peshawar. This conduct is not consistent with someone who was in fear for his life, who was in hiding, who had moved out of his home and continually moved from place to place to avoid an attack by the Taliban.

25. The applicant has claimed that because of his father’s work in [supplying resources] to NATO forces in Afghanistan, he was at risk of being targeted by the Taliban. His migration agent has submitted that the nexus to the Refugees Convention is his membership of a particular social group being a family member of a NATO employee. The applicant has not claimed that his father is a NATO employee nor does the documentary evidence before the Tribunal suggest that he is. However, the Tribunal accepts that he may be imputed with being a family member of a NATO employee. The Tribunal is unable to find any country information to support his claim that family members of [Business 1] or NATO employees or contractors are targeted by the Taliban.

26. In his visa application, the applicant claimed that his father is a member of the ANP.  He has filed with the Tribunal a copy of the Department’s Decision Record dated 25 May 2018 in which the delegate states that she is not satisfied that he or any member of his family ever held a role of any public prominence with the ANP or were involved in any interest that would motivate political opponents or State authorities to target him for attack. In an undated Statutory Declaration sent to the Tribunal on 18 July 2018, he made new claims that his father was supporting the ANP in its election campaign for the election on 25 July 2018. He stated that his former migration agent had made a post-interview submission that his father was a “high ranking member” of the ANP and this was not correct. He stated that his father had made financial donations to the ANP when he was working.

27. The applicant subsequently made new claims that senior officials from the ANP visited Mansehra [in] May 2018 and appointed his father the [Official 1] of the ANP Union Council for [Town 1]. He claimed that his father spoke at a rally in Mansehra condemning a terrorist attack in Peshawar [in] July 2018 which targeted an ANP meeting. He has provided to the Tribunal a document dated [in] June 2018 and titled ANP Membership Certification in relation to his father. This document states that his father is a member of the ANP and [Official 1] of the ANP Union Council for [Town 1]. He has also provided the Tribunal with photographs of his father attending a rally and a funeral and an USB with audio recordings together with a transcript in English of his father speaking at a pre-election rally and at a protest condemning a terrorist attack in Peshawar.

28. The Tribunal asked the applicant what his father is required to do as the [Official 1] of the ANP Union Council for [Town 1]. He responded that when a candidate is contesting an election he or she contacts the [Official 1] of the ANP Union Council, who is well known in that area, and the [Official 1] contacts members of the party to attend a meeting or rally. He stated that the [Official 1] addresses the members of the party who have gathered and the candidate then speaks to them. He stated that the [Official 1] liaises with the management of the party but his or her “main job” is to gather people to attend the meeting.

29. The Tribunal noted that the applicant’s father’s conduct in accepting this position, putting himself out there in public and making himself an easier target for the Taliban was not consistent with the applicant’s claims that his father was in hiding and was continually moving from place to place so that the Taliban would not attack him. He responded that he had spoken to his father about this. He stated that his father told him that he left his job because of the Taliban, he tried to send his son to Islamabad and that was a disaster, he had given up and did not care for his life anymore. He stated that his father stated that he could not leave the country to the Taliban and even if he was killed in the process he would not give up.

30. The Tribunal informed the applicant that it had difficulty accepting that his father did not care about his life particularly as his mother would be left without a husband or any children to care for her if his father was killed. He responded that his uncle in Karachi is supporting his parents and maybe he would support his mother if his father is killed. The Tribunal does not find this evidence to be persuasive. The Tribunal is of the view that his father would not have accepted this position unless he felt it was safe for him to do so.

31. On 24 December 2018, the Tribunal received a letter from the applicant’s migration agent indicating that the applicant’s father had been nominated to be the [Official 2] for [a named] district for the upcoming election in April or May 2019. He provided newspaper articles referring to this appointment together with English translations of four articles, a copy of a photograph and an English translation of the caption for the photograph which referred to [an identified official] of the ANP handing over membership forms to the applicant’s father. The applicant’s migration agent submitted that this heightened the applicant’s father’s political profile and this would place the applicant at risk if he returns to Pakistan. The Tribunal is unable to find any country information to indicate that family members of ANP members or leaders are targeted for harm.

32. In his visa application, the applicant also claimed that his uncle, who was a member of the ANP and was living in Swat, was killed by the Taliban in 2009. He gave evidence to the Tribunal that the Taliban had full control of the Swat valley at that time and the security forces were “useless” against them. He stated that his uncle was killed because of his membership of the ANP and other people were killed as well. He has not provided the Tribunal with any evidence that his uncle was a member of the ANP or that he has died or the cause of his death.

1. However, the country information indicates that almost all of the Swat Valley was under the control of the Taliban by early 2009 and that the Swat Valley has been the location for prolonged battles between the Taliban and Pakistani security forces with there being casualties on both side. It indicates that the Taliban was using civilians as human shields. It indicates that large numbers of civilians were displaced and many civilians were killed due to the armed conflict. [1] [2] [3] [4] In view of this country information, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that his uncle was killed in the Swat Valley in 2009.

   [1] Swat Valley: Timeline, Mtholyoke, ( Pakistani Taliban rule Swat valley, Aljazeera news, 3 February 2009. ( Pakistani civilians flee Swat valley as major ground offensive draws closer, The Guardian, 11 May 2009. ( Pakistan: “Trapped” Swat civilians see little food, plenty of missiles, Refworld. (>

   In his visa application, the applicant claimed that his eldest brother, [Brother A], was attacked by the Taliban and shot in the leg in 2011. He claimed that he was forced to flee to [Country 1] to evade death. He claimed that the Taliban had vowed to kill him and he knew that they would follow through with this threat if he did not leave the country. During the hearing, he stated that [Brother A] was returning from his [relative’s] house when he was shot in the leg. He stated that after the fight the attackers from the Taliban started running. When asked about the fight and the details of the incident, his answers were vague and non-responsive. He stated that [Brother A] was taken to a hospital for treatment.

2. The applicant gave evidence that after [Brother A] recovered from the gunshot wound he went to [Country 1]. He stated that he overstayed his Visitor visa and was deported back to Pakistan. He stated that he was living in [Country 2] at the time and his relatives told him what had happened to [Brother A]. He stated that, when [Brother A] returned to Pakistan, he rented a house in Mansehra. He stated that in 2016 he went to [another country] and left his wife and children with his in-laws in [District 1] (in Khyber Pakhtoonkhwa Province).

3. The Tribunal is of the view that [Brother A’s] decision to leave his wife and children in the Khyber Pakhtoonkhwa Province when he went to [Country 1] is not consistent with the applicant’s claims that the Taliban harm family members of people they are targeting. Further, [Brother A’s] decision to live in Mansehra with his family after he returned to Pakistan from [Country 1] is not consistent with the applicant’s claims that the Taliban had vowed to kill him and he knew that they would follow through with this threat if he did not leave the country. Further, the fact that [Brother A] did not have any problems after he returned to Pakistan and lived in Mansehra, in the district of his hometown, where it would have been a lot easier for the Taliban to find him, is not consistent with the applicant’s claims. This raises doubts about the credibility of his claims in relation to [Brother A].  

4. The applicant’s [Brother B], gave evidence to the Tribunal that neither [Brother A] nor the applicant had any problems with the Taliban. This is not consistent with the applicant’s claims in relation to [Brother A]. The Tribunal put this information to him, pursuant to s.424AA of the Act. He responded in writing that it is his understanding that [Brother B] did not say this and there may have been a misunderstanding. The Tribunal does not accept this explanation. This raises further concerns in relation to his claims about [Brother A].  

5. In his visa application, the applicant made no claims in relation to his [Brother B]. His evidence to the Tribunal is that [Brother B] lived in Mansehra with his wife and son. He stated that [Brother B] joined him in Australia in October 2014 and they have lived in the same accommodation since then. His evidence is that [Brother B] has also made an application for a Protection visa and they were both initially represented by the same migration agent. On 24 July 2018, the Tribunal received an email from his migration agent stating that since he lodged his Statutory Declaration on 18 July 2018, he has become aware that [Brother B] was attacked by the Taliban [in] April 2013 when shots were fired at a car he was travelling in. He stated that he was never informed of this attack by [Brother B] or other members of his family until the week before and that is why he did not mention it in his visa application or Statutory Declaration. He stated that he also became aware that [Brother B] made an error in his Statutory Declaration in stating that the applicant was aware of this incident.

6. During the hearing, the applicant gave evidence that he spoke to [Brother B] about their upcoming hearings and [Brother B] asked him if he had mentioned the attack on his life in his submission. He stated that he responded that he had never discussed it with him. He stated that when [Brother B] was attacked he was living in Abbottabad and [Brother B] was living in Mansehra. He stated that he was not told about the attack in case he got stressed. He stated that they did not discuss it after [Brother B] came to Australia. He stated that when he found out about it he informed his migration agent. 

7. The Tribunal finds this evidence to be implausible for a number of reasons. Firstly, the applicant was living in Pakistan [in] April 2013. The Tribunal is of the view that it is implausible that he would not have been informed by [Brother B] or another member of his family that an attack had been made on [Brother B’s] life particularly when he claims to have been informed of an attack on [Brother A] in 2011 when he was living in [Country 2]. Secondly, he has lived with [Brother B] in the same household in Australia since October 2014 and it is implausible that [Brother B] would not have discussed this incident with him prior to July 2018 if it had in fact occurred. For these reasons, the Tribunal has doubts that [Brother B] was attacked by the Taliban.

8. The Department refused the applicant’s visa application on 25 May 2018. On 18 July 2018, an undated Statutory Declaration by the applicant was lodged with the Tribunal in which he made new claims that his youngest brother, [Brother C], was kidnapped when he went to Islamabad. He claimed that [Brother A] went to the Police and lodged a FIR. He claimed that his father subsequently received a telephone call from an unidentified caller who stated that they had warned him to stop supplying [resources] to NATO and to quit the ANP. He claimed that his father responded that he had stopped working but was told that he was still working with the ANP and supporting their propaganda. He claimed that his father was told that [Brother C] had been taken to Afghanistan. He claimed that his father did not receive any further telephone calls thereafter.

9. The applicant has provided the Tribunal with copies of a FIR and an article in a newspaper. The FIR is dated [in] August 2016 and indicates that it was submitted by [Brother A]. It referred to his [brother], [Brother C], going to Islamabad to seek information from different Colleges, that his family had lost contact with him and that his mobile telephone was switched off. It referred to inquiries being made with friends but no one being aware of his whereabouts. It referred to his family receiving threatening telephone calls because of their affiliation with the ANP, their family being threatened that they would “cause damage” to their family if they did not sever their relationship with the ANP and the TTP making threats to abduct them.

10. The newspaper article is dated [in] September 2016 and refers to an ANP activist’s son gone missing. It refers to the applicant’s father filing a written complaint with the Police in relation to his missing son [Brother C]. It states that according to the written complaint the applicant’s father had received threats when he was working [to] supply [resources] to NATO forces in Afghanistan and that he quit his job in 2014 due to the threats. It refers to the family members being affiliated with the ANP in Mansehra.       

11. The Tribunal has confirmed that a FIR has been lodged but has a number of concerns in relation to the veracity of the information in this document and in the newspaper article. Firstly, in his undated Statutory Declaration filed with the Tribunal on 18 July 2018, the applicant claimed that his brother, [Brother C], was abducted in 2017. However, the FIR and the newspaper article indicate that he was abducted in 2016. Secondly, if [Brother C] was abducted in August 2016 or, alternatively, in 2017, the Tribunal would expect him to have informed the Department of this important information particularly as his application for a Protection visa was not determined by the Department until 25 May 2018 and he was represented by a migration agent.

12. Thirdly, the applicant has never claimed that any of his family members received threatening telephone calls including threats that “damage” would be caused to his family if they did not sever their relationship with the ANP or that the TTP made threats to abduct them. The Tribunal would expect that if this had occurred he would have made these claims to the Department and the Tribunal. Fourthly, the newspaper article appears to report on the information in the FIR. It refers to the written complaint being made by the applicant’s father and not his [Brother A], as stated in the FIR and claimed by the applicant. Fifthly, the newspaper article refers to his father quitting his job in 2014 due to threats he received. There is no information in the FIR in relation to when his father quit his job.

13. The Tribunal subsequently received an email dated 23 November 2018 from the applicant’s migration agent in which he referred to a newspaper article about a Police officer being kidnapped in Islamabad, taken to Afghanistan, tortured and killed.[5] He submitted that the circumstances were similar to those of the applicant’s brother [Brother C] and that the Tribunal should take it into account in its assessment of the application. The article refers to a note being left with the Police officer’s body which appeared to be written by Islamic State and referred to the “cop who had arrested and killed several militants has met his fate”. [6] Other media articles indicate that the Police officer was a high ranking officer who “was actively involved in anti-militancy operations and twice escaped suicide bombings aimed at assassinating him.”[7]

    [5] Long wait for body of Police officer tortured to death in Afghanistan, Dawn, 14 November 2018. ( Ibid.

    [7] Abducted Pakistani Police officer’s body found in Afghanistan,Voanews,15 November 2018. (>

    This country information tends to indicate why the Police officer was of such adverse interest to militant groups and why he was such a high value target to justify the extents they went to in kidnapping him in Pakistan, taking him to Afghanistan and killing him in Afghanistan. The Tribunal is of the view that the Police officer’s profile bears no resemblance to that of [Brother C] or his father.

14. The applicant has not claimed that [Brother C] was involved with the ANP.  At the time of [Brother C’s] alleged kidnapping, his father was no longer working and supplying [resources] to the NATO forces, he was no longer financially supporting the ANP and did not hold any position in the ANP. His father had not had any contact with the Taliban since 2014 although he continued to reside in the Mansehra area and, according to the applicant, despite the Taliban having no difficulty finding people they were targeting. [Brother C] had resided with his parents in the Mansehra area and continued to attend school and a tutoring centre without any contact with the Taliban. It would have been a lot easier for the Taliban to locate [Brother C] in Mansehra, if they wanted to harm him or abduct him, than in Islamabad.  

15. The country information indicates that document fraud is widespread in Pakistan and that it is relatively easy to obtain fraudulent documents. It also indicates that FIRs are relatively simple to counterfeit. It indicates that reports exist of Police accepting bribes to verify fraudulent FIRs. DFAT does not consider that the existence of an FIR constitutes evidence that the events described in the FIR actually occurred. The country information also indicates that people have paid news organisations to publish false stories.[8] The Tribunal discussed this country information with the applicant and raised this as an issue.

    [8] DFAT Country Information Report 2017 and DFAT Country Information Report 2019.

16. The applicant subsequently lodged a written response in which he stated that his father spoke to the journalist. This may explain the fourth and fifth concerns referred to above but it does not alleviate the Tribunal’s concerns. If the journalist wrote an article relying on information provided by his father, the newspaper article is a self- serving document that has no probative value. The Tribunal is not satisfied that the information contained in the FIR or the newspaper article is accurate or that [Brother C] was abducted.   

17. In his visa application, the applicant claimed that in May 2006 a classmate told him that his father was a financial contributor to the ANP, praised him for his involvement and he and another classmate encouraged him to join the ANP. He claimed that his mother warned him to stay away from politics as it was dangerous and told him that most of her family members who belonged to the ANP had either been killed or had fled Pakistan. He claimed that his passion for helping people and his nation was stronger than his need to appease his mother so he joined the ANP. He claimed that he began discussing the objectives and ideologies of the ANP with his classmates and friends. He claimed that the Taliban will kill him because of his membership of the ANP if he returns to Pakistan.

18. The applicant has provided to the Department a copy of his ANP membership card and a Membership Certification dated [in] February 2015 indicating that his membership was registered [in] May 2006. His evidence to the Tribunal is that he became a member of the ANP in 2006. When asked what he did as a member of the ANP, his answer was non-responsive. When pressed for an answer, he responded that if an ANP leader was coming to their area they encouraged people to join the rally and invited people to meetings. When asked if he did anything else as a member of the ANP, he responded no. His evidence is that he did not get involved in any ANP related activities after he returned to Pakistan from [Country 2] in 2012.

19. The applicant’s minimal level of involvement with the ANP is not consistent with his claims that his passion for helping people and his nation was so strong that he joined the ANP against his mother’s wishes and this raises doubts about the credibility of his claims. He lived in Mansehra from 2006, when he claims to have become a member of the ANP and when his father was a member of the ANP, until 2009 when he travelled to [Country 2], with no problems with the Taliban. He returned to Pakistan in September 2012 and lived there until June 2013 when he came to Australia. He did not have any problems with the Taliban during that period.

20. The applicant has lived in Australia since [June] 2013 and has not claimed to be involved in any ANP related activities here despite his claimed passion for helping his people and his nation. He has claimed that if he returns to Pakistan he will get involved in ANP politics if it is safe to do so. In view of his past and present conduct, the Tribunal has doubts that he was ever a member of the ANP or that he will get involved with the ANP if he returns to Pakistan. The Tribunal is not satisfied that the supporting documents he has provided in relation to his membership of the ANP are authentic documents.

21. The applicant’s conduct prior to coming to Australia has not been consistent with his claims. His evidence to the Tribunal is that he was in [Country 2] when his [Brother A] was shot in the leg. He stated that this made him fear for his own safety. In his undated Statutory Declaration, he stated that when he found out that his brother was shot in 2011 he was very scared, depressed and cried. He stated that he was afraid to return to Pakistan. He stated that he was not aware that he could apply for asylum in [Country 2]. He stated that his father was unable to continue to support him financially so he was unable to apply for another Student visa and was eventually forced to return to Pakistan.

22. In his undated Statutory Declaration, the applicant stated that he was taken into immigration detention in [Country 2] and given a statement to sign. He stated that the statement said he had not complied with the requirements of his Student visa and was deported. He stated that he was told that because he had not been living illegally in the community they would not place a ban on his return and he could apply for a Student visa and return to [Country 2]. This is not consistent with the information in his passport or with the records of [Country 2] government. He has provided to the Department a copy of his Pakistani passport which includes a copy of his [Country 2] Student visa. That visa indicates that his Student visa was valid from [December] 2009 to [July] 2012. He was therefore living in [Country 2] unlawfully when he was detained [in] August 2012.

23. [Country 2] government has provided information to the Australian government that the applicant’s Student visa expired on [a date in] July 2012 and he thereafter continued to live in the community unlawfully. When he was detained [in] August 2012 the document he was given was an Illegal Entry Notice as an over stayer. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it raised concerns in relation to his credibility as a witness and the veracity of his claims. He requested and was granted further time to respond. In his Statutory Declaration dated 10 August 2018, he responded that he did not know why the Tribunal stated that he had not been truthful about his visa history in [Country 2] in his previous statement. He stated that he did say that he was detained and deported and that he was told that they would not put a ban on his return because he had not been living unlawfully in the community and believes this is what he was told.

24. The Tribunal does not accept this explanation. The applicant did not disclose in his visa application filed on 17 July 2014 that he had overstayed his Student visa in [Country 2], had been living in the community unlawfully, had been detained and deported from [Country 2]. It was not until his undated Statutory Declaration was filed with the Tribunal on 18 July 2018 that he disclosed that he had been in immigration detention in [Country 2] and was deported to Pakistan. Even then he stated he was given a statement which said that he was being deported from [Country 2] because he had not complied with a requirement of his Student visa and was told that a ban would not be placed on his return to [Country 2] because he had not been living in [Country 2] illegally.  

25. The evidence before the Tribunal clearly indicates that the applicant’s Student visa had expired on [a date in] July 2012 and he was living in the community unlawfully at the time he was detained [in] August 2012. Further, the statement he was given was in relation to being an over stayer. In these circumstances, the Tribunal does not accept that he was told that because he had not been living illegally in the community a ban would not be placed on his return to [Country 2]. The Tribunal is of the view that he has not made full and frank disclosure of his circumstances in [Country 2] to the Department or the Tribunal and has sought to mislead the Tribunal when he eventually disclosed his circumstances in [Country 2]. His conduct does not reflect well on his credibility as a witness.

1. The applicant’s evidence is that he lived in [Country 2] from [December] 2009 to [September] 2012. His claims are that the Taliban had been targeting his family for years because of their involvement with the ANP and his father’s work as an [an occupation 1] supplying [resources] to NATO forces in Afghanistan. He claimed that his uncle was killed by the Taliban in November 2009 because he was a member of the ANP and his [Brother A] was attacked by the Taliban and shot in the leg in 2011. His evidence is that the situation in Pakistan was becoming worse and worse and his father told him to stay in [Country 2] for as long as possible. His evidence is that his father was unable to continue to financially support his studies in [Country 2]. His Student visa for [Country 2] was only valid until [July] 2012. His evidence is that after [Brother A] was shot he was concerned about his own safety and was scared to return to Pakistan. However, he did not seek asylum in [Country 2].

2. The Tribunal raised as an issue with the applicant its concern that he did not apply for asylum in [Country 2] despite his claims that he was fearful for his own safety after his [Brother A] was shot in 2011 and was scared to return to Pakistan. In his undated Statutory Declaration, he responded that he was not aware that he could apply for asylum in [Country 2] and, if he had known about this option, he would have done so. In written submissions dated 20 September 2018, his migration agent submitted that due to his young age and the stress he was under he was not able to take steps to apply for a further visa and did not seek advice from a migration agent. He submitted that, as a result, his Student visa expired, he became unlawful and remained in the community for about a month until he was detained and deported.

3. The Tribunal accepts that the applicant was young at the time and may have been stressed. However, he has proved himself to be a resourceful person in his ability to live in a foreign country with a very different culture and language to his own, to obtain accommodation, to study in a language that was not his mother tongue and to obtain employment in [Country 2]. In these circumstances, the Tribunal is of the view that if he genuinely feared for his safety in Pakistan he would have made some inquiries or done some research on the internet about where to obtain immigration advice, including free immigration, and obtained that advice. Further, even if he had not obtained immigration advice prior to being detained, the Tribunal would expect him to have indicated to [Country 2] immigration authorities, when they were discussing deportation with him, that he feared for his life if he was deported to Pakistan. The Tribunal is of the view that his failure to apply for asylum in [Country 2] is not consistent with his claims and raises concerns in relation to the credibility of his claims.

4. The applicant’s conduct after to coming to Australia has not been consistent with his claims. The records of the Department indicate that he arrived in Australia [in] June 2013 on a [Student] visa. This was a temporary visa and required him to leave Australia before that visa expired. The Tribunal would expect that if his life was at risk in Pakistan and he was fearful about returning to Pakistan, he would have obtained some immigration advice soon after his arrival in Australia and applied for a Protection visa. However, he did not apply for a Protection visa until 17 July 2014 over a year after his arrival in Australia. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his conduct was not consistent with his claims and his delay in applying for protection raised concerns in relation to the credibility of his claims.

5. In his undated Statutory Declaration, the applicant stated that he just wanted to stay in Australia and did not apply for protection because he did not know it was an option. He stated that subsequently an Afghan friend, who had also applied for a Protection visa, told him about Protection visas and referred him to his former migration agent who helped him to lodge an application for a Protection visa. In his Statutory Declaration dated 10 August 2018, he stated that he was fearful about returning to Pakistan before lodging his application for a Protection visa but did not know what to do. He stated that he was stressed, not sleeping and did not feel he could talk to other people about his problems. 

6. In written submissions dated 20 September 2018, the applicant’s migration agent submitted that the applicant has consistently put forward to the Department and the Tribunal that he feared returning to Pakistan but was unaware of his option to apply for protection until his Afghan friend told him about it. He submitted that, whilst his delay in applying for protection is a relevant consideration for the Tribunal, it should be cautious about placing excessive weight on this issue. He submitted that he was stressed and his decision making would have been affected by his mental health.

7. The Tribunal has had regard to these submissions but does not accept them. The applicant’s evidence is that he was enrolled in a 10 weeks English course followed by a Bachelor [degree]. His evidence is that he failed the first two subjects he was enrolled in and then changed his enrolment to a [Diploma] but could not complete this course either. He stated that he missed a lot of classes and kept receiving emails from his College that they would report him to the Department. His failure to attend classes and complete the courses he was enrolled in put him at risk of having his Student visa cancelled for breach of conditions of that visa. The Tribunal is of the view that his experience of being deported from [Country 2] would have made him concerned about being deported from Australia as well for not complying with the conditions of his Student visa. This raises concerns for the Tribunal that this was his motivation in applying for a Protection visa.

8. The applicant has provided to the Department a Medical Certificate dated [February] 2015 from his treating doctor at the [named] Medical Centre. It indicates that he is suffering from anxiety, stress and depressive symptoms due to a Post Traumatic Stress Disorder (PTSD). It indicates that he experienced and witnessed events which threatened his and his family’s lives and safety in Pakistan. It indicates that he reports feelings of intense fear, helplessness, anxious moods and stress and was referred to a Clinical Psychologist for psychological treatment. The applicant has never claimed to the Department or the Tribunal that he experienced and witnessed events which threatened his and his family’s lives and safety in Pakistan.

9. The applicant’s evidence is that he personally had no problems whilst he was in Pakistan. He claims that when his [Brother A] was attacked and shot in the leg in 2011 he was living in [Country 2] and the problems his father had in 2014 and his [Brother C] being abducted in 2016 or, alternatively, in 2017 occurred whilst he was living in Australia so these are all not incidents he witnessed and had direct experience of. He was not aware of his [Brother B] having a problem in Pakistan until he was informed of it years later in Australia in 2018. The Tribunal is concerned about the inaccuracy of the history that he has provided to his treating doctor and that his treating doctor has acted on this information to prescribe medication for him and refer him to a Clinical Psychologist for treatment.

10. In his submissions dated 18 July 2018, the applicant’s migration agent submitted that the delegate was incorrect and unreasonable in not placing any weight on this evidence. He submitted that the treating doctor was qualified to make the diagnosis of PTSD. He submitted that PTSD symptoms can be experienced by a person who has not witnessed harm personally and it is reasonable that these symptoms could be experienced by someone in the applicant’s position. He submitted that the applicant also claimed that he was suffering from anxiety and depression.  

11. The Tribunal has considered these submissions. However, the Tribunal notes that the applicant’s treating doctor’s diagnosis is based on an inaccurate history provided to him and it is therefore flawed. In view of the inaccurate history provided to the treating doctor and the many concerns the Tribunal has in relation to the applicant’s credibility and his manufacturing of evidence, the Tribunal has concerns that he also fabricated the symptoms he reported to his treating doctor. It is not the role of his treating doctor to test the veracity of the information provided to him by the applicant. The Tribunal therefore places no weight on this evidence.   

12. The applicant has provided to the Tribunal a letter dated 12 October 2016 from the [named medical] Centre. It is signed by a Mental Health Clinician. It indicates that he was referred for treatment by his General Practitioner for supportive counselling as he suffers from depression. It indicates that he had difficulties with his living conditions in Australia which continue to cause him substantial distress. It indicates that he was worried about his brother who had been kidnapped by the Talban and was afraid to return to Pakistan. It refers to the symptoms he has reported and noted that he recognises that his current emotional state is determined by his uncertainty about his application before the Department. It concludes that his condition would be responsive to a change of circumstances.

13. This document tends to indicate that the history provided by the applicant to the Mental Health Clinician and the reasons he was seeking counselling are different to those he provided to his treating doctor. It is not clear from the letter what relevant qualifications and work experience the Mental Health Clinician has and whether he is qualified to make a mental health diagnosis. In any event, the letter does not indicate that a mental health diagnosis had been made by him.       

14. The applicant has provided to the Tribunal a Summary of Psychological Treatment dated [in] August 2018 from [a welfare agency]. It indicates that he reported that he experienced numerous highly traumatic events in his country of origin. He reported that some family members had been killed by the Taliban and his parents are in grave danger. It indicates that he is apprehensive and anxious about his future, worried about his family as they are not able to provide for themselves and are exposed to extreme danger. It refers to symptoms he reported and his counselling treatment.

15. This document was prepared by a Clinical Psychologist and indicates that the type of intervention is psychological assessment and brief psychological treatment. It does not indicate that the applicant has been diagnosed as suffering from PTSD or any other mental disorder. It indicates that the history provided by him to the Clinical Psychologist is significantly different to his claims for protection. For instance, he informed the Clinical Psychologist that he experienced numerous highly traumatic events in Pakistan. His evidence to the Tribunal is that he did not experience any problems in Pakistan. He has claimed that his father and brothers [Brother A] and [Brother C] had problems when he was outside of Pakistan. He has claimed that his brother [Brother B] was attacked by the Taliban [in] April 2013, when he was living in Pakistan, but he was not aware of this until 2018 when he was in Australia.

16. The applicant informed the Clinical Psychologist that family members had been killed by the Taliban. His evidence to the Tribunal is that an uncle was killed by the Taliban in the Swat Valley in 2009. He has not claimed that any other family members were killed by the Taliban. The Tribunal has grave concerns that he has provided an inaccurate history to his treating doctor and treating mental health practitioners and about his motivation for doing so. The Tribunal is of the view that if he had a genuine mental health disorder and was genuinely seeking counselling for the purpose of addressing his problem, he would have provided an accurate history to his treating doctor and treating mental health practitioner.

17. The Tribunal is of the view that the applicant manufactured or exaggerated his history and symptoms for the purpose of fabricating evidence for his own gain. This also raises concerns in relation to the accuracy of the supporting documents that he has provided from Pakistan. The Tribunal does not accept that his delay in applying for protection in Australia had anything to do with his mental health issues.

100.   The Tribunal raised as an issue with the applicant its doubts that he would be targeted by the Taliban because of his father’s membership of the ANP and/or because his father delivered [resources] to the NATO forces in Afghanistan. The Tribunal noted that he lived in Pakistan for most of his life and nothing happened to him. The Tribunal noted that he would have been most at risk at the time his father was working and supplying [resources] to NATO forces in Afghanistan. The Tribunal noted that even after he returned to Pakistan from [Country 2], lived in Mansehra for 2 months and in Abbottabad for 6 months nothing happened to him. The Tribunal noted that it was unlikely that something would happen to him now so many years later.

101.   The applicant responded that in 2013 Bashir Bilour was killed by a suicide bomber and 5 years later his son was killed in a suicide attack. He stated that the Taliban does not care how long it takes. He stated that they look at the reason for their animosity towards someone. He stated that when you return they plan their attack. He stated that when he returned to Pakistan from [Country 2] the Taliban was in the hills. He stated that when the armed forces started targeting the Taliban the IDPs moved from their area to the lower districts. He stated that the Taliban moved within those people and cannot be identified. When the Tribunal pointed out his earlier evidence that it was easy to identify the Taliban from their beards and what they wear, he responded that he agreed. He stated that most people have beards but that does not mean that they are Taliban. He stated that they are religious and the army cannot target everyone with a beard. He stated that the Taliban work according to a plan and when they have a chance they attack. He stated that their main purpose is to harm people.

102.   The applicant requested and was granted time to provide a further written response. In his Statutory Declaration dated 10 August 2018, he stated that the situation is dangerous for him now because of his father’s high profile involvement in the ANP including in the recent elections. He stated that he could easily be targeted by the Taliban because he is known to be his father’s son. He stated that he is also passionate about the ANP and would become involved again if it was safe.

103.   The country information indicates that Bashir Bilour was a leader in the ANP and a Senior Minister in Pakistan and was killed in Peshawar in December 2012 in a suicide blast.[9] The country information also indicates that one of his sons, Haroon Bilour, was an ANP candidate for the 2018 election and was killed in a suicide bombing while campaigning.[10] The country information tends to indicate that Bashir Bilour was targeted because he was a senior leader in the ANP, a Senior Minister and a candidate in an upcoming election in 2013. The country information tends to indicate that Haroon Bilour was targeted because he was a prominent member of the ANP and a candidate in an upcoming election in 2018. The Tribunal does not accept the applicant’s evidence that Haroon Bilour was killed because he was the son of Bashir Bilour.

[9] Bashir Bilour killed in Peshawar suicide blast, The Express Tribune, 22 December 2012. ( Taliban opponeni in Pakistan killed by bomb as he campaigns, The New York Times, 10 July 2018. (  The Tribunal discussed relocation with the applicant and asked him whether he had considered it. He responded that he did not think there was any place in Pakistan that was safe. He stated that the Taliban has informants and have merged with the TTP. He stated that he suffers from anxiety and cannot work. He stated that there is racism and Police harassment in Punjab so he would not relocate there. He stated that his father tried to relocate his brother to Islamabad. He stated that even if you go into hiding for 10 years the Taliban will find you if you are on their list. He stated that you cannot trust religious people in Khyber Pakhtoonkhwa as they are all connected. He stated that there are still some madrassas that are preparing people for extremism.

105.   In his submissions dated 18 July 2018, the applicant’s migration agent submitted that the applicant’s traits and profile is such that it would be unreasonable for him to relocate to another part of Pakistan away from his tribal and family networks in Khyber Pakhtoonkhwa on the basis of his mental health and lack of any family or tribal links. The Tribunal has considered these submissions. For the reasons given above, the Tribunal does not accept that the applicant has a valid diagnosis of PTSD. The Tribunal accepts that his living conditions in Australia cause him substantial distress. The Tribunal accepts that he is anxious about the uncertainty of his immigration status in Australia and apprehensive about his future. The Tribunal accepts that his condition would be responsive to a change of circumstances.

106.   The Tribunal does not accept that the applicant’s mental health prevents him from working or from relocating to another part of Pakistan if he wishes to do so. The Tribunal does not accept that he is of adverse interest to the Taliban because of his traits or profile or that he is on a Taliban hit list. The Tribunal notes that if he does not wish to live with his parents on his return to Pakistan, he has siblings who live in the Mansehra district. He has also lived and studied at Abbottabad during various periods in his life. He also has an uncle in Karachi who has been supporting his parents. The Tribunal is not satisfied, on the evidence before it, that any discrimination he may encounter if he chooses to move to the Punjab Province would amount to serious harm or significant harm.

107.   In his visa application, the applicant claimed that he has been living in Australia since June 2013, the Taliban believe that he has been brainwashed by Western beliefs and culture and is now part of Western society. The Tribunal has considered whether he is at risk of serious harm or significant harm as a returnee from a Western country if he returns to Pakistan. DFAT assesses that, despite growing Islamisation in the areas in the FATA and Khyber Pakhtoonkhwa, Western influence remains pervasive in many parts of Pakistan. It assesses that there is no evidence that indicates that individuals would be subject to discrimination or violence as a result of them having spent time in western countries.[11] More recently, DFAT has assessed that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate or because of having lived in a Western country.[12]

[11] CXBD6A0DE1108: "Pakistan - failed asylum seekers", Department of Foreign Affairs and Trade, 27

[12] DFAT Country Information Report, 1 September 2017 and DFAT Country Information Report, 20 February 2019.

108.   The applicant’s evidence is that he returned to Pakistan from [Country 2] [in] September 2012, after having lived in [Country 2] for about 3 years, and resided in Pakistan until [June] 2013 when he left for Australia. He has not claimed to have had any problems during that period because he was a returnee from a Western country. This tends to support the assessment made by DFAT. The Tribunal is not satisfied, on the evidence before it, that he would be at risk of serious harm or significant harm as a returnee from a Western country if he returns to Pakistan.

109.   The Tribunal has considered the oral and written submissions made by the applicant’s former and current migration agents. The Tribunal has also considered the country information provided by the applicant and other country information.

110.   The Tribunal has considered the Tribunal’s Guidelines on the Assessment of Credibility and the Guidelines on Vulnerable Persons when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Reports on Pakistan and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

Findings

111.   Having considered all the claims, the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated claims and evidence for the purpose of obtaining a Protection visa.

112.   The Tribunal accepts that the applicant was born on [date] at [Town 1] in Mansehra district in Khyber Pakhtunkhwa Province in Pakistan. The Tribunal accepts that he has never married. The Tribunal accepts that he completed High School and undertook tertiary studies in Pakistan. The Tribunal accepts that he travelled to [Country 2] [in] December 2009 as the holder of a Student visa. The Tribunal accepts that he studied English in [Country 2] and also [worked]. The Tribunal accepts that his Student visa expired [in] July 2012 and he thereafter remained in [Country 2] as an unlawful non-citizen. The Tribunal accepts that he was deported from [Country 2] on [a date in] September 2012.

113.   The Tribunal accepts that after the applicant returned to Pakistan in 2012 he initially lived in Mansehra and then lived in Abbottabad where he studied English and undertook an IELTS test. The Tribunal accepts that he then obtained a Student visa for Australia and travelled here [in] June 2013. The Tribunal accepts that he enrolled in a Bachelor [degree] and failed the subjects he undertook in the first semester. The Tribunal accepts that he then enrolled in a [Diploma] which he did not complete. The Tribunal accepts that he did not attend classes and received letters from his education provider that he would be reported to the Department. The Tribunal accepts that he subsequently applied for a Protection visa.

114.   The Tribunal accepts that the applicant’s father worked as an [occupation 1] for [Business 1] from December 1994 to May 2014. The Tribunal accepts that [Business 1] had a contract to supply [resources] to an Afghan company called [Business 2] which in turn had a contract to provide [resources] to NATO forces in Afghanistan. The Tribunal accepts that in March 2014 [a vehicle] the applicant’s father was [traveling in] was stopped by militants and after he and his [colleague] exited the vehicle and ran a safe distance away the [vehicle] was [attacked]. The Tribunal does not accept that this was a personal attack on the applicant’s father but rather an attack on NATO and Western forces occupying Afghanistan. The Tribunal accepts that the applicant’s father stopped working as an [occupation 1] for [Business 1] in May 2014 because he felt that it was too dangerous to continue to do so.

115.   The Tribunal does not accept that in May 2014 the applicant’s father was attacked on his way home. The Tribunal does not accept that the Taliban left a note on the doorstep of his family home threatening to kill all members of his family because his father delivered [resources] to NATO forces. Alternatively, the Tribunal does not accept that his father’s attackers went to his family home, took his father’s salary slips and other important documents and left a threatening Notice on the door. Alternatively, the Tribunal does not accept that his father’s attackers went to his family home, took documents in relation to his salary and put a poster on the wall which stated that he belonged to a Communist family, his activities in the community were against their religion, he was a supplier to NATO, helping NATO or America was against Islam and that he should prepare himself for further attacks because his brother was killed. The Tribunal does not accept that he thereafter did not live in his home and moves continually from place to place to avoid being attacked by the Taliban.

116.   On the evidence before it, the Tribunal is not satisfied that the applicant will be targeted by the Taliban because his father used to deliver [resources] to NATO forces in Afghanistan. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for this reason if he returns to Pakistan now or in the reasonably foreseeable future.

117.   The Tribunal accepts that the applicant’s father has been a member of the ANP for a considerable period of time. The Tribunal accepts that, when he was working, he made financial contributions to the ANP. The Tribunal accepts that [in] May 2018 he was appointed the [Official 1] of the ANP Union Council for [Town 1]. The Tribunal accepts that he spoke at a rally in Mansehra condemning a terrorist attack in Peshawar [in] July 2018. The Tribunal accepts that he was nominated to be the [Official 2] for [named] district for the upcoming election in April or May 2019.

118.   The Tribunal accepts that the applicant’s father may be known or become known in [Town 1] or even in the district of Mansehra as a result of these appointments. The Tribunal accepts that these appointments may have heightened his profile but does not accept that they make him a high profile political figure. The Tribunal notes that he is not a candidate for the ANP who would attract the adverse attention of the Taliban for this reason.  His main role is to support the ANP candidate during an election campaign by encouraging ANP members to attend a meeting or rally at which he introduces the candidate and the candidate speaks. The Tribunal accepts that, during elections, this may increase his risk of harm from the Taliban because of his association with the ANP candidate.

119.   The country information indicates that, like other parties in Pakistan,” the ANP can be affected by politically motivated violence. It is also the target of violence from militant groups. The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and counter-insurgency operations in the former FATA and Khyber Pakhtunkhwa, and work to improve the Pakistan-Afghanistan bilateral relationship.”[13] DFAT assesses that ANP members face a moderate risk and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship.[14]

[13] DFAT Country Information Report on Pakistan, 20 February 2019.

[14] Ibid.

120.   The Tribunal has considered whether the applicant will be targeted by the Taliban because his father is a member of the ANP or because his father holds a position in the ANP. The country information does not support his claim that family members of ANP members or leaders are targeted by the Taliban. On the evidence before it, the Tribunal is not satisfied that the applicant will be targeted by the Taliban because his father is a member of the ANP or because his father holds a position in the ANP. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for these reasons if he returns to Pakistan now or in the reasonably foreseeable future.

121.   The Tribunal accepts that the applicant’s uncle, who lived in the Swat Valley, was killed in 2009. On the evidence before it, the Tribunal is not satisfied that he was a member of the ANP or that he was killed by the Taliban for that reason.

122.   The Tribunal does not accept that the applicant’s [Brother A] was attacked by the Taliban in 2011 and shot in the leg. It follows that the Tribunal does not accept any of his claims that flow from this.

123.   The Tribunal does not accept that the applicant’s [Brother B] was attacked by the Taliban [in] April 2013 when shots were fired at a car he was travelling in. It follows that the Tribunal does not accept any of his claims that flow from this.

124.   The Tribunal does not accept that the applicant’s [Brother C] was kidnapped when he went to Islamabad in May 2018 or, alternatively, in 2017. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal accepts that a FIR was lodged with the Police in Islamabad and that an article was published in a newspaper relying on information provided by the applicant’s father to the journalist. For the reasons given above, the Tribunal is not satisfied that the information in these documents is accurate. The Tribunal is of the view that this evidence was fabricated for the purpose of supporting the applicant’s visa application.

125.   The Tribunal does not accept that the applicant became a member of the ANP in 2006 or that he was involved in any ANP related activities in Pakistan. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal accepts that he has not been involved in any ANP related activities whilst living in Australia. The Tribunal is not satisfied that he will be involved in any ANP related activities if he returns to Pakistan or that he will have any desire to do so.

126.   The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm as a returnee from a Western country if he returns to Pakistan now or in the reasonably foreseeable future.

127.   The Tribunal does not accept that the applicant is or was of adverse interest to the Taliban. The Tribunal accepts that there is generalised violence in Pakistan. While the Tribunal accepts that there is some level of risk to him in the context of generalized violence, it finds, on the basis of all the evidence before it, that this risk is remote. The Tribunal does not accept that there is a real chance or a real risk that he would be targeted for harm if he returns to Pakistan.

128.   The Tribunal does not accept that the applicant has a mental health disorder that would prevent him from working or from relocating within Pakistan should he wish to do so.

129.   The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Pakistan now or in the reasonably foreseeable future. 

Does Australia have protection obligations to the applicant under the Refugees     Convention?

130.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his actual or imputed political opinion, membership of a particular social group or any other ground under the Refugees Convention if he returns to Pakistan now or in the reasonably foreseeable future.

131.   Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

Does Australia have protection obligations to the applicant under the complementary       protection criterion?

132.   As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

133.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Pakistan now or in the reasonably foreseeable future.

134.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Pakistan now or in the reasonably foreseeable future.    

135.   Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

CONCLUSION

136.   The Tribunal finds that the applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.

137.   There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

DECISION

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

Linda Symons
         Member

February 2015.