1516709 (Refugee)

1516709 (Refugee) [2018] AATA 2591 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1516709
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:C. Packer
DATE:24 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 May 2018 at 6:55pm
CATCHWORDS
Refugee – Protection Visa – Pakistan – Race – Ethnic Pashtun – Muslim Sunni – Political profile – Pro-military and pro-Pakistan government – Fear of harm from Lashkar-e-Islam and other militants in Pakistan – Membership of a particular social group – People perceived as holding a pro-Western political opinion or affiliation – Returnees from a Western country – Vulnerable witness– Relocation reasonable – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65,376, 424AA, 438

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a man aged [age], born in Pakistan and a citizen of Pakistan.
The applicant arrived in Australia on 17 January 2013, as a holder of a Student [visa], and he had travelled on a Pakistan passport issued [in] 2010 and valid to [2015]. He last arrived in Australia on 28 July 2014.
On 21 January 2015 the applicant applied for a Protection (Class XA) visa.
On 11 August 2015 the applicant attended an interview with the delegate.
[In] November 2015 the delegate refused the application.
On 4 December 2015 the applicant applied for review of the delegate’s decision.
On 6 July 2017 and resumed on 13 July 2017 the applicant attended a Tribunal hearing.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on his fear of harm from Lashkar-e-Islam and other militants in Pakistan, arising because of his work and political/social profile. After considering his evidence and the material before the Tribunal, I accept that he faces a real chance of harm in his home area in Khyber Agency. However, I find that he can relocate elsewhere in Pakistan where he would not face harm and so the real chance of persecution does not relate to all areas of Pakistan. I find that if he relocates elsewhere in Pakistan there is not a real risk he will suffer significant harm, and relocation is reasonable. My assessment follows.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. In the written application, the applicant stated that he was born and raised in [Peshawar], Khyber Pakhtunkhwa province, Pakistan. In about 1998 the family relocated to a family home in [Village 1] in Khyber Agency that is not far from Peshawar. He is a Pashtun and a Muslim Sunni. He is married with his wife and son, parents [and siblings]; all living at [Village 1], [Khyber Agency] and that is where the applicant last resided in Pakistan. He stated he had worked in Pakistan for government and other agencies in a number of [areas]. He has attained a number of tertiary qualifications. At the hearing the applicant said his family and large extended family continue to reside in a family compound at [Village 1]. In Australia he has worked as [an Occupation 1] for several years.
The applicant’s protection visa application showed that he had trips out of Australia to Pakistan from 6 November 2013 to 16 February 2014, and from 16 June to 28 July 2014.
Country information[1] shows that Pakistan is the sixth most populous country in the world with a population estimated to be around 193 million. Pakistan’s population is young, fast-growing, and rapidly urbanising. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). The FATA is comprised of 7 tribal agencies: Bajaur; Khyber; Kurram; Orakzai; Mohmand; North Waziristan and South Waziristan. Approximately half the population of Pakistan lives in Punjab province, with around 27 per cent living in Sindh, 13 per cent in Khyber Pakhtunkhwa and six per cent in Balochistan. Less than five per cent of the population lives in the FATA and the Northern Areas of Pakistan collectively. Pakistan is ethnically and linguistically diverse with the largest linguistic groups being Punjabis (45%), Pashtuns (15%), Sindhis (14%), Seraikis (8%) and Mohajir (7.5%).
[1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, [ of claims
The applicant claims to fear harm in Pakistan from Lashkar-e-Islam and other militants. His key claims as summarised are:
·In 2009 he worked as an [occupation] for a [project] [in] the Khyber Agency. During a field visit in Bara Tehsil he had a tense exchange with two armed youngsters who were members of Lashkar-e-Islam (locally known as ‘Tanzeem’).
·After he was promoted to an office-based [position], in 2009-2010 he became suspicious he was being followed and observed by unidentified men.
·In October 2010 he joined [a committee] and in 2011 he received an accusatory and threatening Lashkar-e-Islam letter that had been handed to a relative in a [Village 1] market, and later their threatening phone call that also asked for money.
·On 17 January 2013 he entered Australia on a Student [visa], but returned to Pakistan for two visits. The first visit home from November 2013 to February 2014 was uneventful. During a second visit home in June 2014 the [brother] revealed he had been receiving threatening phone calls about the applicant in Australia and threatening harm to the applicant and family members.
·[In] December 2014 unidentified assailants shot at the applicant’s car being driven by the brother.
·[In] January 2015 an improvised explosive device was found buried in front of the family compound and defused. A Political Agent/security official advised the brother that confidential reports showed many people were searching for the applicant and it was not safe for him to return.
·He cannot return to Pakistan as he will be targeted everywhere by Lashkar-e-Islam or other militants because of his work, profile and stay in Australia.
·As an ethnic Pashtun he faces discrimination and harm.
In submissions the applicant claims he has a well-founded fear of persecution from Lashkar-e-Islam, Taliban, and other militant and Sunni extremist groups in Pakistan arising from:
·Political opinion: his political opinion, actual or imputed, of being pro-military and pro-Pakistan government.
·Political opinion: his political opinion, actual or imputed, of being anti-LeI/TTP/other similar militant groups.
·Political opinion: his political opinion, actual or imputed, of being pro-Western and progressive, and pro-international community.
·Membership of a particular social group, of people perceived as holding a pro-Western/pro-United States political opinion or affiliation.
·Membership of a particular social group, of past or present NGO workers, aid development workers, or people perceived to be affiliated with NGOs.
·Membership of a particular social group, of people perceived as holding a pro-Pakistani military political opinion or affiliation.
·Membership of a particular social group, of people perceived as being opposed to the operation of Sunni extremist groups including but not limited to the TTP and Lashkar-e-Islam.
·Membership of a particular social group, of returnees from a Western country.
In submissions the applicant claims he has a well-founded fear of persecution from the Pakistan authorities and the community for reason of his race, being of Pashtun ethnicity.
Evidence
The evidence before the Tribunal includes the following material (not all are listed):
·the applicant’s Protection visa application form lodged on 21 January 2015, which includes scant handwritten reasons for seeking protection in Australia
·passport pages; identity, education and employment documents; marriage certificate
·statements and submissions and country information
·correspondence with [two particular organisations] and documents concerning his travel changes
·handwritten diagram of compound in Pakistan
·declarations from witnesses in Australia
·mental health documents and Psychology reports
·a form of a First Information Report (FIR) [in] June 2014 by the brother [to] ‘The Political Agent Khyber Agency’ (re anonymous phone calls); and report by [a named source] about the FIR
·a form of a FIR [in] December 2014 by the brother (re car shooting); and report by [a named source] about the FIR
·statement by the brother
·Daily Situation report, Khyber Agency dated [January] 2015 (re explosives); letter from the Political Agent Khyber of [January] 2015
·car ownership transfer document dated [November] 2013
·photos of car riddled with bullet holes and of road outside the family compound, copy of jpeg file with photos modified 31 December 2014, text messages
·applicant’s email on 19 January 2015 to [an organisation] asking for flight on 20 January 2015 to be cancelled
·the Protection visa decision record (‘delegate’s decision’) dated 16 November 2015, which is the subject of this review
·the application for review, which has attached to it a copy of the delegate’s decision
The applicant was invited to appear at a hearing on 14 June 2017, however, the representative requested the hearing be deferred for at least a week and this request was granted. The applicant appeared before the Tribunal to give evidence and present arguments, on 6 July 2017. The hearing was not completed and so was adjourned and resumed on 13 July 2017. The hearing was conducted in English. The representative attended.
At the hearing I had before me a Psychologist report dated 5 July 2017 and other medical information concerning the applicant, as well as his statement in which he described his deteriorated mental health. This information led me to treat him as a vulnerable witness. At the start of the hearing on 6 July 2017 I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. Later in the hearing I asked whether he had understood everything said, and he indicated he had. Similarly, at the resumed hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that at the hearings he was competent to give evidence and had a full opportunity to put forward his story and arguments. I discuss the applicant’s mental health in further detail below.
The Department attached a notification dated 13 June 2017 said to be under s.376(1)(b) of the Act, stating that information had been given in confidence, and that the Tribunal should not disclose it to relevant parties without appropriate consideration. The certificate referred to ‘source information received via departmental webform [in] APR 2017 contained in TRIM reference [number]. I advised the applicant of the existence of the certificate and discussed the information at the end of the hearing before adjourning. The Department subsequently provided a notification dated 6 July 2017 under s.438(1)(b) of the Act with a reference to the same information. On 7 July 2017 the Tribunal provided a copy of this fresh certificate to the applicant. At the resumed hearing on 13 July 2017 I used the s424AA procedure to discuss the key points of the information. I advised the applicant that I was satisfied the certificate was validly issued due to the information given in confidence. The applicant responded with a discussion about his bitter dispute with a former flatmate, and he provided documents concerning the dispute. He argued that he believed the former flatmate had contacted the Department “and had told lies about me.” He did not argue that the certificate was not valid.
After considering the applicant’s explanations, and the anonymous nature of the information, and my following findings about the evidence before the Tribunal, I am not satisfied that the information in the dob-in is reliable. For that reason I have disregarded the information in its entirety and give it no weight.
Country information
I have carefully considered the submissions and country information provided and cited by the applicant and his representatives. At the hearing I referred to country information that included[2] the reports concerning Pakistan provided by International Crisis Group CrisisWatch and South Asia Terrorism Portal (SATP), as well as the Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, January 2016. The DFAT Country Information Report Pakistan, 1 September 2017, was published after the hearings. In a letter dated 12 December 2017 the Tribunal brought the applicant’s attention to the report as well as extracting parts of the report and indicating they may be of particular interest, and also referred to the ongoing monthly CrisisWatch and SATP reports. A submission dated 19 December 2017 responded with additional arguments and information.
[2] The monthly summaries of conflicts in Pakistan provided by International Crisis Group CrisisWatch, Pakistan, using filters for country and range of months, [ The summaries of conflicts and events in Pakistan provided by South Asia Terrorism Portal, using filters for country, region, and range of years, [ of claims: credibility
The applicant claims to be a national of Pakistan. I sighted his Pakistan passport at the hearing and a partial photocopy was made. All the available evidence, including the applicant’s oral evidence and familiarity with Pakistan, supports his claim to be a Pakistan national. Pakistan is therefore the receiving country for the purpose of assessing both the applicant’s protection claims, and his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the identity claimed.
His mental health
At the hearing I had before me a Psychologist report dated 5 July 2017 and other medical information concerning the applicant, as well as his statement in which he described his deteriorated mental health. The Psychologist report dated 5 July 2017 has key points:
·The applicant commenced psychology counselling in January 2016 and attended sessions “intermittently on a fortnight-monthly basis”.
·The applicant was diagnosed by his medical doctor with anxiety and depression, and he has been treated with cognitive behavioural therapy.
·His anxiety and depression symptoms include sadness and despair, fatigue and sleep disturbances.
·His symptoms are related to: difficulty seeing a future for him and his family in Australia; fear of being harmed/killed by extremists; worry about his wife and children; the mother’s recent death; agitation regarding his Protection visa application. His anxiety and depression is consistent with his personal history as explained to the psychologist.
·Prognosis: it is very likely he “will continue to remain vulnerable to suffer anxiety and depression whilst his current situation continues”.
·Future treatment: the psychology treatment sessions are vitally important and their cessation would be significantly detrimental to his fragile mental health.
·Relocation to Islamabad or Lahore would predispose him to potentially suffer a very serious breakdown of his mental health as he has no family supports apart from his existing supports in Khyber Agency.
Other medical and mental health evidence provided included: mental health care plans (2016, 2017); completed questionnaires about stress levels; medical notes from 2015 and 2016. The medical notes talk about many things told to the doctor including: his fear of returning; he is struggling with being separated from his family; he fears for their safety; he was lucky not to be killed by the Taliban; he worries about his uncertain future and his application outcome; he lacks social and family support here; his mother was ill; militants shot his car and mined the front of his house; he worked as [an Occupation 1] at [a workplace] for up to 3 days/week and up to 10 hour/shift. A doctor’s letter dated 30 June 2017 discussed his mental health, with key points:
·The applicant attended the clinic in March 2015 and was diagnosed with anxiety/depression disorder.
·He discontinued anti-depressant medication after a short period.
·He was referred to a clinical psychologist for ongoing treatment.
The applicant’s statement dated 29 June 2017 discussed his mental health, with key points:
·His mental health had deteriorated since he arrived in Australia. He is constantly anxious and depressed and cannot see the way forward. He feels hopeless and fearful of the future.
·He stopped taking sleeping tablets as they were ineffective.
·He commenced seeing a psychologist in January 2016.
·He does not know how he would restart his life in another part of Pakistan without the support of his extended family and living in constant fear of being tracked down by extremists. He would not be able to cope or support his family.
The submission of 19 December 2017 submitted the applicant continued to have troubled and broken sleep, suffer from anxiety and restlessness, and experience symptoms of depression consistent with the previous diagnosis.
In sum, I have given appropriate weight to the expert reports and medical information. I do not take what he told the expert as determinative of his credibility and the truthfulness of his narrative. Based on the reports and information and in particular the report of 5 July 2017 together with the applicant’s evidence at the hearing, I accept that the applicant has some psychological problems. I acknowledge that his psychological problems have been and are attributable to depression, concern for his safety in Pakistan, concern for his family in Pakistan, his mother’s illness and then death, his social isolation and unsettled circumstances and future here, and his unresolved migration status. In Australia the applicant receives treatment for his psychological problems that has for periods included medication although he is reported to have discontinued such medication. The most recent prognosis is that he will need counselling into the future if his current circumstances continue, and the counselling sessions are vitally important to his mental health.

At the hearing I discussed what he was doing in Australia and he stated he worked as [an Occupation 1], and he described undergoing a month course a few years ago. I asked whether he had answered a question about his mental health before he became registered as [an Occupation 1] and he stated he had not. He stated he started work from March 2015 and had worked ever since as a casual [Occupation 1]. The medical notes show that he had discussed with his doctor his work as a casual [Occupation 1]. At the hearing I also discussed the key points of the psychology report and indicated that it seemed the report’s discussion about relocation in Pakistan was written to support a migration outcome. When I asked what he wanted to say about his mental health the applicant said he has to work to pay his bills and he has a responsibility to support his family. He forwards $300 each month to his wife and he has sent $1,000 to his brother. He stated he was unable to get work at [a particular] organisation because he did not have permanent residence in Australia, and I pointed out it appears if this application is successful he envisages getting such work and working fulltime. In sum, the applicant’s mental health has not prevented him from working in Australia over the past few years and from earning enough to send remittances to his family in Pakistan, and from envisaging working into the future.
As well, I have considered the most recent expert opinion about the effects on the applicant should he return to Pakistan and I note that the expert opined that relocation to a Pakistan city would predispose him to potentially suffer a very serious breakdown of his mental health as he has no family supports apart from his existing supports in Khyber Agency. I have also given consideration to this opinion about a potential lack of family support, in the following discussion.
His work and activities in Pakistan to January 2013
The applicant’s narrative is centred on his fear of harm from Lashkar-e-Islam and other militant and Sunni extremist agents in Pakistan, arising from his work and political/social profile. In his narrative he came to the attention of Lashkar-e-Islam in 2009 when participating in a field visit in Bara, and this escalated into their adverse attention by 2010, culminating in a threatening letter and phone calls in 2011. He has given detailed information about his employment and work in FATA (largely in Khyber Agency) and Peshawar. Based on his detailed evidence and the material before the Tribunal I accept that he had the employment and undertook the activities that he claims.
As discussed at the hearing, country information[3] shows Lashkar-e-Islam is a Deobandi group based in Khyber Agency. The group’s main aims are said to be to implement Sharia in the Khyber Agency; eliminate “social vices” from the society; and they justify use of force for religious ends. As discussed at the hearing, country information shows that after the group had been banned by the Pakistan government in 2007 it had been targeted in military operations from 2008 to 2010 and the group had largely been confined to the Tirrah valley in Khyber Agency. At the hearing the applicant pointed out on a map that Tirrah valley was to the south-west of Bara.
[3] TRAC article, Lashkar-e-Islam, 28 August 2012, [>
In sum, in light of my finding that the applicant had the work he claims and the country information that shows Lashkar-e-Islam had heavily influenced Khyber Agency over several years to 2010, I cannot discount the possibility that Lashkar-e-Islam had formed an adverse interest in the applicant. I cannot discount the possibility that during a field visit to Bara Tehsil he had a tense exchange with two armed youngsters who were Lashkar-e-Islam members, and by 2009-2010 he had been followed and observed albeit by unidentified men, and he received a threatening letter and phone calls in 2011 from Lashkar-e-Islam members as he claims.
His evidence is that after he refused to comply with the demands of Lashkar-e-Islam, there had been no adverse occurrences up to the time he departed Pakistan and entered Australia [in] January 2013.
His time in Australia and subsequent trips home
In the applicant’s narrative he took his wife and child back to [Village 1] in November and that trip home from November 2013 to February 2014 had been uneventful. It was only during the applicant’s second trip home in June 2014 that a brother said he had received threatening phone calls where the anonymous callers: asserted the applicant was an agent for the Jewish lobby and had worked for NGOs in Pakistan and was working for a Jewish NGO in Australia; demanded the applicant leave the NGO immediately; threatened the brother and demanded the brother withdraw children from [a particular school] and place them in a madrassa; and threatened to punish the whole family.[4] At the hearing the applicant stated the brother then suggested they take a trip away from [Village 1] and so the brother booked a place in Murree and the entire family [went] to Murree. The applicant’s evidence is that after a month in Murree during Ramadan the applicant travelled to Peshawar and he departed for Australia, and the family stayed for a little longer before returning to the family home.
[4] Threats received by the brother as described in the brother’s report to the Political Agent
But as I pointed out at the hearing, ostensibly the family had just organised a costly holiday there in light of country information[5] that shows Murree is a mountain resort town located in ranges just 30kms from Islamabad. The applicant’s response that they had not fled to Murree but rather this had been a temporary and inexpensive arrangement while they considered what was going on, and this had been the only place the brother could book at short notice as Swat had been booked out, was not persuasive. Nonetheless, in light of my foregoing findings that in 2010-2011 Lashkar-e-Islam had formed an adverse interest in the applicant, I cannot discount the possibility that locally they had maintained an adverse interest in him and sought to intimidate him by making threats to the brother who had always lived in the home area. Indeed, by 2014 Lashkar-e-Islam had also gained an adverse interest in the brother because of the brother’s children’s schooling; and they made phone threats to the brother that they “would take strict action against my whole family”[6] and “they would take serious action against my family and me”[7].
The car shooting [in] December 2014
[5] Wikipedia (used with caution), [ Phone threats received by the brother as described in the brother’s report to the Political Agent
[7] Brother’s statement as translated
In the applicant’s narrative, his return flight was booked for 4 January 2015, but [in] December 2014 unidentified men shot at the applicant’s car while it was being driven by the brother in [a certain] area of [Village 1]. In the car had been the brother (the same brother who had received the threatening phone calls), brother’s family, and applicant’s family. To support this claim he provided photos of a bullet-ridden car and the brother’s statement to the Political Agent. He produced to the Tribunal additional material including: a car transfer document that ostensibly showed he had purchased the car; copy of jpeg file with photos modified 31 December 2014; copy of brother’s text [in] December to “call me immediately”; text message to [an organisation] [in] December about the occurrence; two witness statements in Australia that attest the applicant had spoken to them about the occurrence. After carefully considering the applicant’s evidence and explanations and the supporting material he has provided, I accept that the car was shot at [in] December 2014.
However, I do not accept that the applicant had been the target for the following reasons, and I discussed my concerns at the hearing:
·The brother was driving the car (and passengers included his family) and so ostensibly was the target.
·The applicant had not been in [Village 1] for a significant time before the shooting. While the applicant claims he had been closely connected to the car as he drove it about during the first trip home (November 2013 to February 2014), his evidence is that he had spent only a few days in [Village 1] during the second visit (June-July 2014). It is difficult to accept his infrequent driving of the car even if distinctive in the past year led militants to closely link the car to the applicant and led them to assume the applicant had returned to Pakistan and was driving the car and so led them to start shooting on first sight.
·The brother’s statement to the Political Agent gives scant details about the shooting and does not mention that a gunman said the applicant’s name before shooting. At the hearing the applicant explained that the brother was not entirely sure he heard the applicant’s name and so did not swear to it. However, the lack of any mention of this in the brother’s official report does not support the claim.
·The applicant and representative submit that the applicant had the greater adverse profile and so the militants must have meant to shoot at the applicant. However, the brother’s evidence is that the phone threats had also been made against the brother and indeed he had been warned that serious action would be taken against him and his family unless he withdrew the children from [a particular school] which he failed to do.
The improvised explosive device (IED)
In the applicant’s narrative, following the car shooting [in] December 2014 the applicant’s return flight was rebooked for 20 January 2015, but [in] January 2015 the brother phoned to say an IED had been discovered buried outside the family compound gate and defused. In his narrative this IED had been directed at him. At the hearing I discussed my concerns that it was difficult to accept militants used significant resources in digging and placing an IED outside a gate where it could be easily discovered. The photos of the area outside the compound gate show a hard gravel and cement-like surface with no indication of disturbance. Nonetheless, as I accept that the local militants had targeted the brother and family when the militants shot at them [in] December 2014, I cannot discount the possibility that just a few days later an IED had been discovered near the family compound.
The brother’s undated statement talks of a conversation he claims he had with the Political Agent/security official in which he was told: many people seem set on killing the applicant; the applicant should not return; and the brother and family should not move away as it would not be an effective solution. At the hearing I pointed out that country information[8] shows false and fraudulent documents are prevalent and easily obtained in Pakistan, and I discussed how the weight I give them would depend on such things as their provenance and how he got them. At the hearing when the brother’s letter was discussed, the applicant stated the brother wrote it so that the applicant could provide it to support his application. But as the foregoing discussion and findings show, the brother had previously complained about the militants’ direct threats that they “would take strict action against my whole family” and “they would take serious action against my family and me”. The brother’s previous statements show that the militants had also been set on harming the brother as well as the whole family. I find the brother has been selective in his letter by only referring to the danger the applicant was in, and not referring to how the brother and entire family had also been threatened by militants. I do not accept that the IED was directed at killing the applicant but rather, directed at the brother and the whole family that lived in the family compound. Indeed, while the Political Agent’s letter dated [January] 2015, sourced by the brother, refers to the applicant and the family being threatened and several attempts made “to harm them and their house”, the Political Agent’s daily situation report refers to the family house as being the house of the brother. In sum, I accept that the Political Agent/security official advised the brother that the family- that included the brother and applicant- were in danger, but do not accept that the Political Agent/security official orally advised that many people were searching for the applicant and it was not safe for him to return.
Since January 2015
[8] DFAT report Pakistan January 2016 and repeated in the DFAT report September 2017 (para 5.43, 5.44)
In the applicant’s statement dated 29 June 2017[9] and at the hearing the applicant’s evidence was that there had been no other violent occurrences directed at the family or family compound since January 2015. When I pointed out that the brother continued to send the children to [a particular school] and yet nothing had happened to the family for some time, he stated that the brother appears to be under stress and he spoke of his speculation that perhaps the brother is paying protection money to the militants. However, he also stated in the statement that despite the brother asking for money and the impression the applicant got from talking with the brother’s wife, the brother “tells me that everything is alright”. In sum, despite the applicant and brother and whole family being threatened with harm, and the brother being shot at and having an IED planted outside the family compound, based on the material before the Tribunal, militants have not taken any further action against the family since the last occurrence in January 2015. Despite the phone threats received by the brother and the violent occurrences, since January 2015 the family have continued to live in the family compound without harm. I have considered but do not find persuasive the applicant’s reasons for his speculation and I do not accept the applicant’s speculation that the brother may be paying protection money. Nor do I accept that the fact that there have been no further attacks against the family shows that the attacks had been directed at the applicant.
Conclusion- credibility
[9] Para 122
Having considered the claims and evidence, I accept the applicant’s claim that he came to the adverse attention of militants following his work for government and agencies up to 2012 as he has described in the application and to the Tribunal. Based on the applicant’s evidence, the militants appear to have been members of Lashkar-e-Islam and country information shows that group have been based and active in Khyber Agency. I accept that the applicant had not been attacked or harmed at any time up to his departure for Australia [in] January 2013.
I accept the brother started to receive phone threats about the applicant in Australia, but also that the brother and whole family had been personally threatened because of the brother’s actions in schooling his children. I accept that when the applicant visited Pakistan from November 2013 to February 2014 and from June to July 2014 he was not attacked or harmed despite the phone threats received by the brother.
I accept that while the applicant was in Australia, militants shot at the brother while out driving with family members and then planted an IED outside the family compound. However, I have considered but do not accept that these threats and violent occurrences were directed solely at the applicant, but rather, based on all of the material provided by the applicant and before the Tribunal, I find the threats and violent occurrences had been directed at the whole family that included the brother who had actually received the threatening phone calls and been given ultimatums about the children’s schooling, and who had been driving the car when it was shot at and who had been living in the family compound throughout this period. I accept that the Political Agent/security official advised the brother that the family- that included the brother and applicant- were in danger, but do not accept that the Political Agent/security official orally advised that many people were searching for the applicant and so it was not safe for him to return.
I accept that militants have not taken any further action against the family since the last occurrence in January 2015, and that despite the phone threats received by the brother and the violent occurrences, since January 2015 the family have continued to live in the family compound without harm. I have considered but do not accept the applicant’s speculation that the brother may be paying protection money to the militants. Nor do I accept that the fact that there have been no further attacks against the family shows that the attacks had been directed at the applicant.
Given the delay between the hearings and this decision I have considered any possible effect the delay may have had on my assessment of the evidence or my reasoning process. Immediately before writing this decision I listened to the recordings of the hearings. In my foregoing credibility assessment and findings I have accepted almost all of the applicant’s narrative and evidence. In sum, I am satisfied that the delay has caused no adverse effects on my assessment of the evidence or my reasoning process.
Conclusion
Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a mature, married man with children, a Pashtun and a Muslim Sunni. He is well educated and knows several languages, and has extensive work experience in Pakistan. His immediate and extended family continue to live in [Village 1] in Khyber Agency- an area that is not far from Peshawar. He came to Australia [in] January 2013, has studied and then worked here as [an Occupation 1], and has now been living in Australia for more than five years.
I consider that if the applicant returns to Pakistan he would first seek to return to the family home in [Village 1]. However, country information shows that the security situation there is fluid. In light of my foregoing discussion and findings I find that he has come to the adverse attention of Lashkar-e-Islam in Khyber Agency in the past and find that there is more than a remote chance that he will again come to their adverse attention if he returns to the home area in [Village 1].
However, a person has a well-founded fear of persecution if the real chance of persecution relates to all areas of a receiving country (s.5J). Accordingly, I have gone on to consider whether the applicant faces a real chance of persecution in all areas of Pakistan. At the hearing I discussed security conditions in major cities away from Khyber Agency and Peshawar, and my discussion focussed on Lahore and Islamabad. My discussion encompassed the January 2016 DFAT report, however, the September 2017 DFAT report does not raise new issues with regards to areas for relocation in Pakistan. The September 2017 DFAT report shows that Lahore and Islamabad are major cities with large and diverse populations and both are viable areas for relocation:
5.14    Large urban centres such as Karachi, Islamabad and Lahore tend to have ethnically- and religiously-diverse populations, and offer a level of anonymity for people seeking refuge from violence by non-state actors. However, groups such as the Ahmadis, who face significant levels of official discrimination, face similar issues in all parts of the country.
5.15    Lahore has a population of around 10 million people. While it remains a majority-Punjabi city, there are significant numbers of some other ethnic groups, particularly Pashtuns. There are few Hazaras or Turis in Lahore. While security incidents can occur- such as the 2016 Easter Sunday attack- the security situation in Lahore tends to be better than other areas. Representatives of the Pashtun community told DFAT that Lahore was safer for Pashtuns than other parts of the country. Similarly, representatives of the Shi’a community told DFAT that Lahore and Islamabad were the safest parts of the country for Shi’a. Representatives of the Lahore Christian community told DFAT that the security situation has improved and that the government is genuine in its attempts to provide Christians with state protection, although some risks- particularly of communal violence and societal discrimination- remain.
5.16    Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country. There is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare. Such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders.

As discussed at the hearing, I consider Lahore and Islamabad are viable areas for the applicant to relocate to because they are in Punjab and a significant distance from [Village 1] and the Khyber Agency, and are large cities that have ethnically-diverse populations. Their distance from the Khyber Agency and size and diversity ostensibly offer a level of anonymity for the applicant.
On returning to Pakistan the applicant will first need to get to Lahore or Islamabad. His Pakistan passport he used to enter Australia has expired, but at the hearing he stated he had applied for a new passport. As discussed at hearing, he will be able to travel to Pakistan on his Pakistan passport, and should he return voluntarily he will typically be processed like any other returning citizen. Should he be returned involuntarily the Pakistan authorities will be aware he is a returnee who had attempted to migrate to Australia, but in light of the country information I do not accept that he will attract the adverse interest of the Pakistan authorities beyond being questioned and soon released as the Pakistan authorities have no interest in such overstayers. I find that when the applicant enters Pakistan he will not face a real chance of harm from the Pakistan authorities. As discussed at the hearing, this is because he departed Pakistan legally on his Pakistan passport- and so has not committed any Pakistani immigration offences. While he would return to Pakistan as a returnee from the West, and as a failed asylum seeker who had sought Australia’s protection, and as a returnee who had been in Australia on a Student [visa] and had studied and worked in Australia, country information shows this would not lead him to face a real chance of harm. My discussion at the hearing drew on the January 2016 DFAT report, and subsequently the September 2017 DFAT report does not raise new issues with regards to his profile on returning to Pakistan as a returnee who had sought Australia’s protection:
5.19 In practice, returnees tend to leave Pakistan on valid travel documents and therefore tend not to commit Pakistani immigration offences. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. Only those who are returned involuntarily or are travelling on emergency travel documents are likely to attract attention from the authorities upon arrival.
5.20 DFAT understands that those returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people tend to be released within a few days, either having been bailed by their families or having paid a fine, although there are provisions for jail sentences. Those wanted for a crime in Pakistan or who have committed a serious offence while abroad may be arrested and held on remand, or required to report regularly to police as a form of parole.
DFAT assesses 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. [5.21]
I find there is not a real chance the applicant will face harm in Lahore or Islamabad because of being a returnee (whether or not voluntary) who had attempted to migrate and was a failed asylum seeker from a western country, or because he was a returnee who had been in Australia on a Student [visa] and had studied and worked in Australia. This is because, as discussed at hearing, country information shows there is a great movement of people in and out of Pakistan including students studying and working overseas including in Australia, and a large number of Pakistanis who seek to migrate or reside overseas, and the applicant’s stay outside of Pakistan and in Australia, even if known, would not be considered remarkable would not cause him to be harmed on his return. My comments drew on the January 2016 DFAT report- and the September 2017 DFAT report does not raise new issues with regards to his profile on returning to Pakistan as a returnee who had lived in the West:
3.139 Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship), and western-branded retail chains operate throughout the country. Both Urdu and English are official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives.
3.140 DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.
As discussed at hearing, country information[10] shows while there had been militant attacks in Lahore including after the January 2016 DFAT report Pakistan, the attacks had been largely against the authorities such as police and soldiers, and Islamabad with its very high level of security has suffered scant militant/sectarian attacks and violence in recent years. Following the hearing, a Tribunal letter dated 12 December 2017 brought to his attention the September 2017 DFAT report Pakistan as well as the monthly summaries of conflicts in Pakistan provided by International Crisis Group CrisisWatch and South Asia Terrorism Portal. These sources continue to support my discussion at the hearing that Lahore has suffered some militant/sectarian attacks in recent years but those have largely been against high profile targets such as police, soldiers, the Assembly: and Islamabad has suffered scant militant/sectarian attacks and violence in recent years.
[10] CrisisWatch, Pakistan; SATP Pakistan; January 2016 DFAT report Pakistan
I acknowledge that attacks and occurrences may be under reported in any location including in Lahore and Islamabad, and indeed, the September 2017 DFAT report states that statistics of terrorism ‘largely derive from news reports, and may understate the number of casualties’ (para 2.33). However, that is why I also considered and discussed with the applicant at hearing country information from sources other than DFAT including CrisisWatch and SATP.[11] Those sources show that significant personal attacks are reported in Pakistan where there is a large press that reports such matters, and such sources keep detailed regional statistics, deaths and injuries. The reports ostensibly show that detailed regional statistics about terrorist attacks are compiled in Pakistan and while there may be some under-reporting of attacks, the reports and statistics from authoritative sources are nonetheless evidence-based and largely accurate.
[11] CrisisWatch, Pakistan; South Asia Terrorism Portal
The applicant and representatives submit[12] that the September 2017 DFAT report is “fundamentally circumspect in its assessment of the overall security situation in Pakistan” and quoted the following:
2.36 Several interlocutors in Pakistan told DFAT that the underlying conditions for militancy-particularly weak judicial and law enforcement institutions and economic under-development -have not been addressed, and speculated that violence would likely increase again after a period of relative calm.
2.37 DFAT notes that there has been an increase in the frequency and severity of terrorist attacks across Pakistan since late 2016. Between 13 and 16 February 2017, a series of separate incidents in Lahore (Punjab province), Quetta (Balochistan province), Peshawar (Khyber Pakhtunkhwa province) and Sehwan (Sindh province) killed at least 100 people and left several hundred others injured. In response to these attacks, on 22 February, 2017, the Pakistan Army announced Operation Radd-ul-Fasaad (the successor to Operation Zarb-e-Azb), a nation-wide anti-terrorism operation in accordance with the NAP, which has expanded the role of the army in counter-terrorism operations in Punjab province. Attacks continue to occur, such as a suicide attack targeting police in Lahore on 24 July 2017, which killed 26 people and injured more than 50 others.
[12] Submission of 19 December 2017
The applicant and representatives submit that there is other commentary about terrorists in Pakistan including commentary published in The Diplomat that wide-scale attacks on Lahore are likely to continue; and the USA has warned Pakistan that Islamabad may be targeted in the future; and SATP that spoke of terror networks thriving across the country. A submission then argues that “On the basis of the information provided by DFAT, and confirmed by the ongoing occurrence (and predicted increase) of sectarian violence in Pakistan, the Tribunal must accept that the relative stability in the urban capitals is transient. As noted by DFAT, the conditions underlying militant violence in Pakistan remain unaddressed.”
I acknowledge that country information shows there have been occasional militant attacks in Lahore and Islamabad, but fewer in Islamabad. But as discussed at hearing, country information[13] shows that the very great and ongoing security provided by police/army throughout the city has for many years discouraged militant attacks, and the September 2017 DFAT report and other commentary does not raise new issues that change this assessment.
[13] CrisisWatch, Pakistan; South Asia Terrorism Portal
As well, at the hearing the country information into 2017 was discussed and the Tribunal pointed out that a surge of terrorism in early 2017 including some big attacks on Lahore had led to the new military operation Radd-ul-Fasaad that was ongoing, and that operation had a focus on Punjab province. As I also pointed out at hearing, country information and the detailed reports showed the military conducting counter insurgency operations in Pakistan, and the military had consistently conducted a lot of attacks on militants both in FATA and throughout Pakistan. I consider that the reports of military and in particular counter-terrorism operations in Punjab and throughout Pakistan in support of the National Action Plan, as discussed at hearing, show the Pakistan government and military remain committed to addressing the terrorist problem into the reasonably foreseeable future. In light of the foregoing, I have considered but do not accept the submission that the relative stability in the urban capitals of Lahore and Islamabad is transient.
Additionally, as discussed at hearing, such wide-scale attacks on Lahore, a city of over ten million, have largely and specifically targeted high profile targets (ie police and army) and the chance that the applicant would be caught up in such an attack is remote. In sum, I find there is not more than a remote chance that the applicant would be harmed in such a militant attack in Lahore or Islamabad now and in the reasonably foreseeable future.
In my foregoing credibility findings I accept that at the time the applicant departed Pakistan in January 2013 he had gained the adverse attention of militants following his work for government and agencies but had never been harmed. Based on the applicant’s evidence, the militants appear to have been members of Lashkar-e-Islam and country information shows that group have been based and active in Khyber Agency. I find that while the applicant was in Australia, the militants continued to have an interest in him but also gained an adverse interest in the brother and threatened to harm the brother and whole family. I accept that militants shot at the brother while out driving with family members and then planted an IED outside the family compound. However, I have considered but do not accept that these threats and violent occurrences were directed solely at the applicant, but rather, I find the threats and violent occurrences had been directed at the whole family that included the brother who had actually received the threatening phone calls and been given ultimatums about the children’s schooling, and who had been driving the car when it was shot at and who had been living in the family compound and coming and going throughout this period. Nonetheless, in my foregoing credibility findings I accept there is a real chance the militants in the Khyber Agency continue to have an adverse interest in the applicant and would seek to harm him if he returned there. But I do not accept that the militants in Khyber Agency would seek to harm the applicant (or family if they move to be with him) if he lived in distant Lahore or Islamabad for the following reasons as discussed at hearing.
Firstly, Lashkar-e-Islam is centred on Khyber Agency and has come under significant pressure from military operations over the years. The largely local nature of Lashkar-e-Islam, even with their links to other organisations, does not support the claim that the group have or would allocate their resources to search for and then attack the applicant if he returns to Pakistan and resided away from the local area and in a big, better protected city in the reasonably foreseeable future. I do not accept that if he lives in Pakistan in Lahore or Islamabad he would be unable to resist any pressure from the family to travel to his home area for family reasons. Nor do I accept that family visiting him would be closely followed and/or reveal his residence to militants.
Secondly, the work and related activities the applicant undertook up to January 2013 were undertaken in Khyber Agency and Peshawar, and undertaken now several years in the past. The work was local in scope and was not at such a level or of such significance that there is a real chance it would have generated the adverse interest of militants (Lashkar-e-Islam militants or other militants) in areas distant from Khyber Agency and Peshawar at that time.
Thirdly, while I accept the brother and family have come to the adverse attention of Lashkar-e-Islam, I also note that adverse attention is local in nature and ostensibly concerns the children’s schooling. I do not accept that the applicant’s family connections, past local work, and past and current profile, is so significant that Lashkar-e-Islam militants or other militants would place significant resources into seeking and then harming the applicant if he lived away from the local area now and in the reasonably foreseeable future.
In sum, I do not accept that the applicant’s past work and activities, and accusations about his activities, and his past and current profile and family profile, will bring the applicant to the adverse attention of any militants or their agents outside of his home area in distant Lahore and Islamabad now and in the reasonably foreseeable future.
I acknowledge that on returning to Pakistan the applicant may seek to work for government or NGOs in the same field that brought him to the adverse attention of militants in Khyber Agency and Peshawar. The applicant and representatives submit that he is passionate about aid work and his qualifications and work experience will lead him to get such work in the future. However, in light of the foregoing discussion I do not accept that work in that field in Lahore or Islamabad will lead to a real chance of him being accused of blasphemy and/or harmed by militants, the Pakistan authorities or any other agents. Indeed, consistent with my observations about country information concerning militant activity in Lahore and Islamabad, the reports of attacks against NGO/aid workers provided in submissions contain scant reports of such workers harmed in Lahore or Islamabad, but refer in the main to Balochistan, FATA and Karachi.
The applicant and representatives also submit that as a selection of job descriptions show, he would be required to undertake dangerous field work if he did get work in an NGO, and it would be unreasonable to consider that he could “modify his behaviour so as to avoid harm”[14] by not undertaking dangerous field work. However, s.5J(3) of the Act provides that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. As discussed at hearing, Islamabad is the centre of the national government and Lahore is a city of more than 10 million in Punjab province- there are ostensibly many ways he could work in his field of expertise and satisfy his passion for aid work with no concealment, without having to travel to an area for dangerous field work. As well, he is well-educated with good work experience in Pakistan and will be able to bring those skills and qualifications to other fields that also are urban based. In sum, I have considered but do not accept the submission. I find that he can take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution by seeking and getting urban-based work, either an aid position or other type of urban employment, that does not have a need to travel to an area for dangerous field work. And I find that this would not be a modification of behaviour that would fall within the terms of s.5J(3)(a), (b) or (c).
[14] Submission of 19 July 2017
I do not accept that his future work and activities in the reasonably foreseeable future will lead the applicant to face a real chance of harm from any militants, including Lashkar-e-Islam, Taliban, or their agents, or from the Pakistan authorities, or Pakistan community.
The applicant and representatives submit that his Pashtun ethnicity would lead him to face racial profiling, discrimination and harm in Lahore and Islamabad. But as discussed at hearing, there is no material before the Tribunal that shows Pashtuns could not travel to and reside in Lahore or Islamabad in Punjab province, and the January 2016 DFAT report showed the large Pashtun community in Lahore had said that its community members feel safe in Lahore, and the September 2017 DFAT report does not change this broad assessment:
Pashtuns
3.6 The security situation for Pashtuns has improved in line with the general improvement in security across Pakistan. Pashtun-majority areas have traditionally experienced disproportionately high levels of tribal, intra-communal and politically motivated violence, and a high concentration of military operations. However, DFAT assesses that Pashtuns do not face a higher risk of violence than other groups based on their ethnicity. Pashtun community leaders in Lahore told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country.
Indeed, other elements of the applicant’s profile such as being a well-educated man who had lived for a time overseas does not support the contention that he would come to the adverse attention of the Pakistan authorities in Lahore or Islamabad or indeed be of any interest to them. As well, while possible racial profiling, harassment and difficulties in obtaining ID may amount to discrimination, cumulatively it does not rise to the level of serious harm (or significant harm for the purposes of complementary protection). In sum, I do not accept that the applicant’s profile that includes his Pashtun ethnicity and Pashtun Khyber Agency origins will cause him to come to the adverse attention of the Pakistan authorities in Lahore or Islamabad or cause him to face serious or significant harm in Lahore or Islamabad from the authorities, or community, or any other agents now and in the reasonably foreseeable future.

In sum, I do not accept that now and in the reasonably foreseeable future in Pakistan in Lahore or Islamabad in Punjab province there is a real chance the applicant will be pursued to, or come to the adverse attention of, and/or harmed or targeted by the Lashkar-e-Islam, Taliban (TTP), or other militants or their agents or anyone else for reason of any part of his past work, activities, identity or family profile including as a mature, married, educated, liberal Muslim Sunni and Pashtun man from Khyber Agency who may again undertake to work with government or NGOs, and who may again undertake humanitarian activities, who had sought to migrate to Australia and was now returning or returned, either when the parts are considered separately or cumulatively. I do not accept that the applicant’s family, social and political profile when considered cumulatively, will lead in the reasonably foreseeable future to a real chance that he will be targeted for harm by the Lashkar-e-Islam or other militants or their agents in Lahore or Islamabad. In light of the foregoing, I find there is relative stability in the urban capitals of Lahore or Islamabad and not a situation of generalised violence, and I do not consider the relative stability is transient.
In my credibility findings above I accept the applicant has those psychological problems based on the reports and information and in particular the report of 5 July 2017 together with the applicant’s evidence at the hearing. The most recent prognosis is that he will require counselling into the future if his current circumstances continue, and the counselling sessions are vitally important to his mental health. The applicant and his representatives submit that the mental health services he needs would not be available to the applicant in Pakistan because country information shows: Pakistan has one of the world’s lowest ratios of mental health professionals per population; one of the lowest levels of public expenditure on mental health; and there is minimal training in psychotherapeutic techniques.
I acknowledge that the mental health sector in Pakistan is under-developed and under pressure, may be expensive and almost all of it located in the cities. But as I pointed out at the hearing, country information[15] shows medical and mental health treatment and appropriate medication are available in Pakistan and ostensibly would be accessible by him. As I pointed out, a basic internet search shows lists of qualified mental health professionals in Pakistani cities including Lahore or Islamabad. There is no material before the Tribunal that suggests he would be denied treatment or have treatment withheld for any reason. I have considered but do not accept that mental health services would be unavailable to the applicant in Lahore or Islamabad in the reasonably foreseeable future because of the low ratio of mental health professionals per population, or the low level of public expenditure on mental health, or the level of training in psychotherapeutic techniques. I do not accept that the under-developed psychological support and counselling in Pakistan amounts to serious harm (or amounts to significant harm for the purposes of complementary protection). In sum, I find that he can get the medical and mental health treatment that he needs, and appropriate medicine if needed, in Lahore or Islamabad now and in the reasonably foreseeable future.
[15] Pakistan Forward article, Pakistani psychiatrists blame Taliban for driving up mental illness rate, 26 October 2016, [ Search by Pakistan city: PsychologyMatters.Asia website and search engine, [ ; Psychologist/Psychological counselling in Islamabad, Pakistan: Yellow pages of Pakistan, [ and Psychologists in Lahore, [>
In light of the foregoing and having particular regard to the applicant’s mental health needs here, the nature of the symptoms discussed in the reports, and the applicant’s account of his psychological state- I am not satisfied the applicant will have psychiatric disorders that will attract the adverse attention of people in Pakistan such that they will seek to harm him. In Pakistan, I am not satisfied there is a real chance that his future condition will result in him experiencing serious harm such as a threat to his life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens his capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. Nor am I satisfied his future condition will result in a real risk that he will suffer significant harm for the purposes of complementary protection.
When I consider all of the applicant’s personal circumstances including his mental health and future needs together, and all of my findings about his narrative and evidence together, and all of the submissions of the applicant and his representatives, I do not accept that in Pakistan in Lahore or Islamabad he faces a real chance of serious harm or a real risk of significant harm from Lashkar-e-Islam, Taliban (TTP), or other militants, or from the Pakistan authorities or from any other agents or the general community. I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in Pakistan in Lahore or Islamabad, for the reasons he has claimed, when considered singly or cumulatively of:
·Political opinion: his political opinion, actual or imputed, of being pro-military and pro-Pakistan government.
·Political opinion: his political opinion, actual or imputed, of being anti-LeI/TTP/other similar militant groups.
·Political opinion: his political opinion, actual or imputed, of being pro-Western and progressive, and pro-international community.
·Membership of a particular social group, of people perceived as holding a pro-Western/pro-United States political opinion or affiliation.
·Membership of a particular social group, of past or present NGO workers, aid development workers, or people perceived to be affiliated with NGOs.
·Membership of a particular social group, of people perceived as holding a pro-Pakistani military political opinion or affiliation.
·Membership of a particular social group, of people perceived as being opposed to the operation of Sunni extremist groups including but not limited to the TTP and Lashkar-e-Islam.
·Membership of a particular social group, of returnees from a Western country.
·Race. Based on his Pashtun ethnicity, and/or ethnicity and origins as a Pashtun from Khyber Agency.
I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in Pakistan in Lahore or Islamabad for any reason.
As well, in light of the foregoing, for the purposes of complementary protection I am satisfied it would be reasonable for the applicant to relocate to either of those areas. In sum, he has the capacity to relocate within Pakistan to Lahore or Islamabad as they are large and important cities in Pakistan and they are practically, safely and legally accessible. His particular circumstances and experiences show he is a mature man with ongoing work experience who has demonstrated his ability to make his own way in life away from his family. I acknowledge that relocating from Australia to Lahore or Islamabad will be unsettling. Nonetheless, his migration status will have been resolved, albeit not the way he would like, and he would be returning to his home country and a city where there is a sizeable Pashtun community and which is dominated by Sunni Muslims. There are Pashtun communities in those areas if the applicant chooses to associate with Pashtuns on his return, and in light of the country information about communities of Pashtuns in Lahore or Islamabad I do not accept that he will be unable to get any accommodation in those cities because of his social and ethnic profile. He will be able to get the mental health and medical services that he needs now and in the reasonably foreseeable future. He is a Sunni and that is the majority religion in Pakistan and in Islamabad and Lahore: he will be able to practise his religion without difficulty in Pakistan. In Australia he has earned enough to send remittances to his family, and ostensibly can return with some funds. As well, his family have been well-off in the past as shown by the applicant’s account of their lifestyle, and although the brother’s income fluctuates, the family ostensibly are available to provide him some financial support while he seeks to establish himself.
In light of the foregoing I find there is not general insecurity/generalised violence in Lahore or Islamabad and the security situation there now and in the reasonably foreseeable future does not render relocation unreasonable for the applicant with his profile and psychological problems. While as a Pashtun from Khyber Agency he may face difficulties including racial profiling, harassment and difficulties in obtaining ID, I do not accept this level of harm or discrimination makes it unreasonable for him to live in Lahore or Islamabad. Indeed, as earlier discussed, other elements of the applicant’s profile such as being a well-educated man who had returned from a Western country would lessen the chance that the Pakistan authorities in Lahore or Islamabad would have such an interest in him.
I have considered the expert’s opinion that relocation to a Pakistan city would predispose him to potentially suffer a very serious breakdown of his mental health as he has no family supports apart from his existing supports in Khyber Agency. I acknowledge he will not have a family network in Lahore or Islamabad, but in Pakistan he will have easier access to family members including extended family, even if initially just on the phone or online. On arrival he may not have a network of friends in either city, but he has shown in Australia that despite his psychological/social problems he can develop relationships, and in Pakistan in the past he developed work relationships as shown by the work material he has provided.
The submission of 19 December 2017 submits that employment opportunities in urban cities are limited; the roles for which he is qualified to undertake carry a high level of risk; and as “aid work is his passion” if he is forced to undertake such work to make a living this is not reasonable. In light of the applicant’s ongoing work in Australia as a casual [Occupation 1], I am not satisfied that the applicant’s medical and mental health conditions and treatment in the reasonably foreseeable future will prevent or hinder him from working in a range of occupations so that he is able to financially support himself and his family when he returns to Pakistan. As well, on returning to Pakistan if he seeks to reside and work in Lahore or Islamabad he will be familiar with the society and culture. He has fully recognised and high level Pakistani and Australian qualifications and work experience and is able to utilise several languages as his application shows he knows Pashto, Urdu and English. In Lahore with over 10 million and in the capital of Islamabad, there is ostensibly work in the applicant’s field that would not take him out of those areas, and I have considered but do not accept that he will be forced to undertake dangerous aid work. Nor do I consider it would be unreasonable for him to “give up his vocation of aid work” as the submission submits, as there will be work opportunities in other fields in which the applicant could reasonably use his education and skills. It is reasonable to consider that after he has established himself in Lahore or Islamabad he will be able to bring his immediate family over.
In light of all of these considerations I am not satisfied there is a real chance that upon his return he will suffer symptoms any more serious than he has so far shown in Australia or other impairments. The applicant’s medical and mental health conditions and treatment have not prevented the applicant from working in Australia and supporting himself and sending remittances to his family. Nor am I satisfied the impact of the applicant’s return on his mental health would be such as to render the treatment available to him in Lahore or Islamabad ineffective.
In sum, I have carefully considered the submissions of the applicant and his representatives. But having carefully considered all of the applicant’s circumstances together, with a particular emphasis on his mental health and treatment, now and in the reasonably foreseeable future, I find that the applicant has the capacity to relocate within Pakistan to Lahore or Islamabad, and for him, relocation is reasonable.
Refugee criterion
In light of the above assessment, the Tribunal finds that in Pakistan the applicant does not satisfy s.5J(1)(c) as the real chance of persecution does not relate to all areas of Pakistan. He therefore does not have a well-founded fear of persecution and therefore is not a refugee as defined in s.5H(1)(a). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Pakistan and to Lahore or Islamabad, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that I find there is taken not to be a real risk that the applicant will suffer significant harm as it would be reasonable for the applicant to relocate to an area of Pakistan, Lahore or Islamabad, where there would not be a real risk that he will suffer significant harm (as per s.36(2B)(a)).
Overall Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she 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

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 because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.

Complementary protection

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

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

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

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.

The Secretariat of the World Congress against Extremism and Takfiri Movements article on Lashkar-e-Islam, 11 September 2016, [ Pakistan, [ ;
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Key Legal Topics

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Immigration
Statutory Interpretation

Legal Concepts

Judicial Review
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Citations

1516709 (Refugee) [2018] AATA 2591

Cases Citing This Decision

Cases Cited

Statutory Material Cited

[2018] AATA 2591

24 May 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction