1517717 (Refugee)

1517717 (Refugee) [2017] AATA 1497 (31 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517717
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:C. Packer
DATE:31 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 July 2017 at 10:24pm
CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Sunni Muslim – Political opinion – Anti-Taliban activist – Social group – Member of village defence committee – Supporter of female education – Western lifestyle – Credibility – Bogus documents
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 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

The applicant is a man aged [age], born in Pakistan and a citizen of Pakistan.
The applicant arrived in Australia [in] March 2014, as a holder of a [temporary] visa, and had travelled on a Pakistan passport issued [2013] and valid to [2018].
[In] April 2014 the applicant applied for a Protection (Class XA) visa.
[In] May 2015 the applicant attended an interview with a delegate of the Minister for Immigration.
[In] December 2015 the delegate refused the application under s.65 of the Migration Act.
On 22 December 2015 the applicant applied for review of the delegate’s decision.
On 30 March 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.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application and his statement dated [June] 2014 provided some basic background information. In the written application, the applicant claimed that he was born and raised in [Village 1], Swat district in Khyber Pakhtunkhwa province. He is married with [number] children. His father lives with the family in Swat, and the mother is deceased. The applicant completed [Senior school] and lived in Swat until he moved to Karachi in 2008. He claims to have been a [school teacher] in Swat, and then from 2008 to 2014 worked for [Employer 2] as a [Occupation 2]. The applicant’s protection visa application showed travel to a [number] of countries as a [Occupation 2] between 2008 and 2014. He entered Australia on a [temporary visa]. At the hearing the applicant said his wife and children and father continue to live in Swat but are in hiding as they regularly move between the homes of the wife’s relatives. He said that in Australia he works as a [Occupation 3] and also does charitable work.
Summary of claims
The applicant claims that in Pakistan:
·In May 2007 he had been abducted by Taliban Village Commander [Mr A] and for [number] days held captive and tortured because he had spoken out against the Taliban and had refused to give them donations when asked at the Mosque.
·After this he spoke out against the Taliban to everyone, until in February 2008 he got a Taliban letter threatening him harm unless he stopped talking against them.
·He became a [school] teacher at the [school] in [Village 1]. Then the Taliban announced that girls were banned from attending school (he says this announcement was in April 2008 by Maulana Fazlullah via Fazlullah’s FM station). In defiance of the ‘ban’, he and another teacher [Mr B] drove girls to and from the school. But after a few weeks talibs stopped the vehicle, beat them and the girls, and shot dead [Mr B]. His beating stopped when he told the talibs he would resign his teaching job.
·He went to Karachi and immediately started work for [Employer 2]. He was a [Occupation 2] for periods from 2008 up to his final trip to Australia.
·After he returned to the village in August 2009 he became a member of the Lashkar and Peace Committee for [Village 1]. He took on responsibility for providing the names of local talibs to the Pakistan army. Because of this, [in] November 2013 the Taliban phoned him and warned him they will soon target him and the family. He therefore left the family with relatives in Swat and he went to Karachi.
·While he was in Karachi the family home was partially damaged because of Taliban arson.
·His family continue to regularly move between relative’s homes as they are in fear of the Taliban.
The applicant claims he has a well-founded fear of returning to Pakistan arising from his:
·     Religion: He fears the Taliban will harm him because he is a Sunni Muslim who actively fought for the right of education for women and had accordingly been targeted in 2008.
·     Political opinion: He fears the Taliban will harm him because of his political opinion (actual or imputed) as an anti-Taliban activist who had handed Taliban names to the army, and had joined the Village Defence Committee and the Lashkar (tribal militia).
·     Political opinion: He fears the Taliban will harm him because of his political opinion (actual or imputed) as a supporter of female education.
- Membership of a particular social group, of: the Village Defence Committee; the lashkar; asylum seekers who had lived outside Pakistan for a lengthy period and are imputed with a Western lifestyle.
Evidence
The evidence before the Tribunal includes the following material:
·The applicant’s Protection visa application form lodged [April] 2014 and statement dated [June] 2014 which includes reasons for seeking protection in Australia.
·Passport pages for two Pakistan passports.
·The Protection visa decision record (‘delegate’s decision’) dated [December] 2015, which is the subject of this review.
·The application for review, which has attached to it a copy of the delegate’s decision.
·[Occupation 2 record of service]
·Identity documents including: National identity card; Marriage certificate; [child]’s Birth certificate; IDP registration; educational certificates
·[Letter] dated [April] 2014 concerning the wife’s work as a [Occupation 4], and photos
·Office of the Peace Committee [Village 1] Certificate dated [April] 2014
·Death Certificate for Mr [B] dated [2016]
·Letter from the Principal of [School] dated [April] 2014
·Statement from [Mr C] of [Village 1] Village Council dated [January] 2017
·Letter dated [March] 2017 from [charity], concerning his charitable work
·Email dated [October] 2015, containing answers to the delegate’s written questions
·Submissions provided 30 March and 13 April 2017
·Medical documents and reports, including Psychologist reports dated [April] 2017 and [May] 2015; Psychiatrist report dated [April] 2015, Dr [F]report dated [April] 2015
·Country information including the country information and sources referred to and cited by the applicant and his representatives
The Department had not issued a certificate under s438 of the Act.
The hearing
The applicant appeared before the Tribunal to give evidence and present arguments, on 30 March 2017. His [representative] was also present. The hearing was conducted with the assistance of an accredited interpreter in the Pashto and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation.
A witness, his treating Psychologist Ms [D] gave evidence. Another witness, his treating Psychiatrist Dr [E] did not appear and I decided not to telephone that witness as Dr [E]’s written report had been provided. As well, I had heard Ms [D]’s evidence that detailed the applicant’s mental health problems and had her report. I provided two weeks for further information to be provided and pointed out that this enabled Dr [E] to update his/her report if needed, but no update or additional report was provided post-hearing.
At the hearing I had before me reports concerning the applicant’s mental health and the witness Ms [D] appeared to give evidence. That led me to treat the applicant as a vulnerable witness. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was and that his mind was clear. Ms [D] gave her evidence and then sat at the back of the room throughout the hearing to support the applicant. During the hearing the applicant a few times said he could not remember details of past events and people, or asked me to repeat a question as he did not understand, but otherwise he appeared to remember dates/years and discussed events in his narrative. He appeared engaged and to fully understand questions and if he didn’t he asked for the question to be repeated. He gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.
The documents he provided
The applicant provided documents- mainly letters- from various sources in Pakistan to support his claims. When assessing what weight to give the documents I have taken into account a range of key considerations including the documents’ format, provenance, when they were dated and provided, consistency, and in light of my consideration of the applicant’s credibility. As I said at the hearing I also considered them in light of country information that shows in Pakistan false and forged documents are prevalent and easily obtained. My comment encompassed the Department of Foreign Affairs and Trade (DFAT) report DFAT Country Information Report Pakistan, 15 January 2016, that states in part:
5.28 The most reliable forms of documentation in Pakistan are passports and Computerised National Identity Cards (CNICs). Other common forms of documentation include domicile, birth, death and marriage certificates. Drivers’ licences are generally considered a less reliable form of identification.
5.46 Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. For example, it is relatively simple to fraudulently produce police-issued FIRs using existing FIR book numbers. FIRs are hand-written standard forms. There is credible evidence of police in Pakistan accepting bribes to verify fraudulent FIRs. The existence of an FIR does not therefore constitute evidence that the described events actually occurred.
5.47 More broadly, DFAT is aware of numerous cases of false school and academic records, birth certificates, death certificates, medical records, bank records and documents issued in a legitimate format without proper verification by Pakistani authorities. Pakistan journalists have advised DFAT that people can publish false stories in newspapers for a fee, although this trend appears to be in decline.
Of the documents provided, the following were particularly relevant to his narrative: the Office of the Peace Committee [Village 1] Certificate dated [April] 2014; Death Certificate for Mr [B] dated [2016]; Letter from the Principal of [School] dated [April] 2014; Statement from [Mr C] of [Village 1] Village Council dated [January] 2017. The documents including those called certificates are in letter form and as they are not official documents cannot be compared against other similar official documents for consistency. However, I have concerns with the provenance and form of the documents overall. As I discussed at the hearing, based on their dates all of the documents he provided to support his claims were prepared after he arrived in Australia. He explained this was because when he came to Australia he had left any proof behind in Pakistan and so he got the father to gather and send proof. He had previously claimed there was a house fire that destroyed the Taliban threat letter and so he no longer had that piece of evidence. However, that all of the documents had been prepared and signed after the applicant’s entry to Australia and none were contemporaneous with the events they discussed, did not support his explanation of having left proof behind. As well, when I explored what other evidence he might be able to access such as evidence of his claimed many years as a teacher, he quickly discounted each of my suggestions and appeared to give no real consideration to what other supporting evidence might be in existence in his village.
At the hearing the applicant stated that he had told his father what documents he needed and the father had procured them from people in the village. But as I pointed out, every letter was in English despite each document having ostensibly been prepared by a different villager in a small village in rural Pakistan. The applicant explained there are many educated people in the village, but I note the applicant’s evidence at the hearing that he did not have English language ability at the time he left Pakistan despite his claimed work as a teacher. In sum, the letters unusually all in English, prepared months or years after the applicant had last been in the village, and at the behest of the applicant/father for the purposes of supporting the applicant’s refugee matter in Australia (indeed the Office of the Peace Committee [Village 1] Certificate even requests that “your government” give him safety) are not from authoritative or independent sources and are not convincing.
The interpreter at the delegate’s interview
A submission submitted that at the delegate’s interview the applicant had difficulties with the interpretation because the interpreter was an Afghani and not a Pakistani Pashtun, and this meant the applicant was not afforded procedural fairness. At the hearing I asked the applicant about the interpretation at the delegate’s interview. I asked whether at that interview he had said he understood the interpreter and the applicant replied that he had but later on there had been some mistakes in interpreting. I asked whether he said at the time there were mistakes, and he replied he had not but rather he asked them to repeat. I asked whether after the repeat he had then understood and he replied he had. The applicant then explained that the interpreter at the delegate’s interview had a different dialect as he was from Afghanistan but when problems arose the interpreter repeated what was said so that the applicant then understood. Based on the applicant’s evidence about how the interview proceeded I consider that any interpreting difficulties had been resolved at the time as the interview progressed. I reject the submission that the applicant was not afforded procedural fairness at the delegate’s interview.
Assessment of claims: credibility
The applicant claims to be a national of Pakistan. I sighted his Pakistan passport at the hearing and partial photocopies were 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 country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds.
On returning to Pakistan the applicant would most likely first travel to Swat district in Khyber Pakhtunkhwa province where his family and other relatives live. His home is in [Village 1] that he said has about [number] villagers. Swat district has a population of more than 1.25 million and Khyber Pakhtunkhwa province has an estimated population of more than 27 million. But he might also seek to live in a large city such as Islamabad or Lahore, or indeed in Karachi where he has stayed particularly from 2008 on many occasions.
The applicant’s mental health
A Psychiatrist Dr [E] in a report dated [April] 2015 indicated the applicant had been diagnosed as suffering from [conditions]. As discussed above, Psychiatrist Dr [E] did not appear at the hearing and I decided not to telephone that witness as a report was before the Tribunal. I provided two weeks for further information to be provided and pointed out this enabled Dr [E] to update the report if needed, but no update was provided post-hearing. The report was prepared for this refugee matter and on the basis of consults since December 2014. The key features of the report are:
·The report recited the applicant’s narrative about his life in Pakistan, told at his sessions.
·In Australia he found it very isolating both socially and mentally. “Life has been very isolating and must be very difficult for him with no social support and poor command over English language”.
·The applicant spoke about [his symptoms].
·[symptoms and opinion deleted].
·He had been prescribed [medications]. He would continue to have sessions at 6-8 week intervals, and continue to have psychological input. He would try to make use of resources in the community, take English lessons, and go out with his flatmate.
The key features of a medical report dated [April] 2015 from the applicant’s treating doctor Dr [F] are:
·The applicant had been a patient for 6 months.
·He suffered from [conditions].
·He had been on [medications] in this period.
·Going back to Pakistan ‘will be fatal for him as per his safety and more detrimental for his emotional and psychological condition’.
A Psychologist Ms [D] in letters dated [May] 2015 and [April] 2017 and in evidence at the hearing indicated the applicant had been diagnosed with [conditions]. The key features of the letter dated [May] 2015 are:
·He had consulted on 11 occasions since December 2014, and had been very committed to the process of counselling.
- He experienced [details of symptoms]. The letter recited the applicant’s narrative about his life in Pakistan, given at his sessions, and his fears of what would happen on return.
·He misses his family terribly and is constantly worried about their safety and wellbeing.
·His quality of life is significantly impacted by the [symptoms], however, he is keen to better his life and implement strategies recommended.
·He lives in constant fear of the Taliban and is convinced they will kill him.
·“It is my belief that the threat that returning to Pakistan would impose on him, would severely affect his mental health.” “I am further concerned that a return to Pakistan will impact on his sense of safety and increase his distress and could trigger an acute stress response.”
·The supports he has here, significant to his ongoing treatment, are: his doctor, psychologist, house mates.
·His [symptoms] may make it difficult for him to give evidence.
The key features of Ms [D]’s evidence at the hearing are:
·In his case sensory stimuli can evoke fear, and can be triggered by hearing news and even this hearing.
·His trouble concentrating should be taken into account. He has memory loss issues.
·‘I don’t know the truth of the matter but his perception is that if he returns that will have an effect on his mental health’.
·She does not know what treatment is available in Pakistan, but he has good support structures here and they would be hard to replicate elsewhere. His [condition] could not be effectively treated in Pakistan if he felt unsafe.
·She agreed he would also be assisted if he lived with his family but the issue is him feeling safe.
The key features of Ms [D]’s letter dated [April] 2017 are:
·He had attended 24 times between December 2014 and March 2017.
·He had presented with [symptoms]. Compared to 2015 he is now more able to speak to the distressing events and remembers more, as he has felt a greater sense of safety.
·He still suffered from [conditions].
·His overwhelming fear of returning to Pakistan and the Taliban, and the visa uncertainty impairs his recovery.
·Her significant concerns that a return to Pakistan would be highly likely to re-traumatize him, and trigger an acute stress response leading him to [a relapse of his condition]. Relocation would jeopardize his treatment and the gains he had made. He would be removed from supports and his sense of safety severely compromised, and without a baseline for safety, psychological treatment cannot be effective. ‘A decision to not provide refugee status or return [the applicant] to Pakistan will impact significantly on [his] mental health’.
·Living with visa uncertainty and the fear of return to Pakistan has impaired his progress and led to feelings of hopelessness at times, and this could be exacerbated by a negative decision.
·The supports he has here include: his doctor, psychiatrist, psychologist, house mates, Op Shop colleagues, English class friendships.

As I discussed at the hearing, the applicant has self-reported his past circumstances in Pakistan to his mental health experts, and I do not take what he has told them as determinative of his credibility and the truthfulness of his narrative.
At the hearing the applicant appeared well-presented, attentive and articulate. As discussed above, during the hearing the applicant a few times said he could not remember details of past events and people, or asked me to repeat a question as he did not understand, but otherwise he appeared to remember dates/years and discussed events in his narrative.
In sum, I have given appropriate weight to the expert reports. Based on the reports, Ms [D]’s oral evidence and the applicant’s evidence, I accept that the applicant has some psychological problems. I accept that he has received ongoing treatment with mixed outcomes at different times. The evidence strongly suggests and I accept that his psychological problems are attributable to past life experiences (albeit I do not accept that his psychological problems are attributable to the particular occurrences he claims as I discuss later in this decision), [his health condition], his unsettled circumstances and living conditions, social isolation, concern for his family, and his unresolved migration status. As well, I have considered the expert opinions about the effects on the applicant should he return to Pakistan and I note that particular emphasis is given to his stated fear of being harmed and that he would feel unsafe in Pakistan:
- Dr [F]’s opinion that going back to Pakistan ‘will be fatal for him as per his safety and more detrimental for his emotional and psychological condition’.
·Ms [D]’s May 2015 opinion: “It is my belief that the threat that returning to Pakistan would impose on him, would severely affect his mental health.” “I am further concerned that a return to Pakistan will impact on his sense of safety and increase his distress and could trigger an acute stress response.”
- Ms [D]’s opinion at the hearing: ‘I don’t know the truth of the matter but his perception is that if he returns that will have an effect on his mental health’. His [condition] could not be effectively treated in Pakistan if he felt unsafe. He would be assisted if he lived with his family but the issue is him feeling safe.
·Ms [D]’s opinion post-hearing that a return to Pakistan would be highly likely to re-traumatize him, and trigger an acute stress response leading him to [a relapse of his condition], and ‘A decision to not provide refugee status or return [the applicant] to Pakistan will impact significantly on [his] mental health’.
The applicant and his representatives also submit that in light of the applicant’s particular needs and Pakistan’s under-developed mental health sector, the likelihood of him ‘surviving in Pakistan is not foreseeable nor reasonable’, and ‘Given his [diagnosis], the chance of serious harm outweighs the prospect of the applicant subsisting in Pakistan’. I do not accept these submissions as I later discuss.
I acknowledge the applicant’s documented mental health issues and treatment. I have taken this into account when assessing the evidence he has given at different times including when he gave his first statement, at the delegate’s interview and at the hearing. I also acknowledge that interviews might have been constrained by time, the use of interpreters and a lack of full understanding of the refugee process; and a person’s story can naturally change in some details when told a number of times. I consider that undue weight should not be placed on a degree of omission and confusion in the applicant’s accounts provided at different times. Nonetheless, this does not mean that inconsistent or differing evidence is unimportant and should not reflect on my assessment of his credibility.
The applicant’s claims to fear the Taliban
The applicant’s narrative is centred on his activities in [Village 1] in Swat district that were against, or imputed to be against the Taliban. Because of these past activities and his current profile he claims he has a well-founded fear of persecution throughout Pakistan. The applicant’s narrative that concerns the Taliban’s activities and influence in Swat at the time is largely consistent with country information. However, my great concerns with significant elements of his narrative and evidence lead me to find he has fabricated and embellished significant claims, and that he is not a credible witness. I find that he has not in the past and will not in the future come to the adverse attention of the Taliban or other such agents in Pakistan. My assessment follows.
The Taliban Commander abducts him in May 2007 and the later threat letter
In summary, the applicant claims that in May 2007 he had been abducted by Taliban Village Commander [Mr A] and for [number] days held captive and tortured because he had spoken out against the Taliban and had refused to give them donations when asked at the Mosque. At the hearing he pointed to a small [scar] and a [minor injury] that he said were the result of torture, but as I pointed out these could have happened in any number of ways. He also provided letters that made reference to the applicant being against the Taliban: a letter from Mr [C] dated [January] 2017 that says the applicant was “against the views of the militant movement of T.T.P. in Swat” and on their target list; and a letter from [a school] dated [April] 2014 that says “He had threat from Taliban, because he was against them”. My overall concerns with the letters that include this letter are discussed above.
At the delegate’s interview and at the hearing he gave evidence that followed this broad narrative of abduction. But he has given changeable evidence about significant details of this claimed occurrence. As the delegate’s decision shows, at the delegate’s interview he spoke of being abducted by talibs but after a lengthy discussion did not claim that the Taliban Village Commander [Mr A] had been involved. A submission of 30 March 2017 addressed this by saying the applicant had a clear recollection of the occurrence and named [Mr A] and [number] talibs, and submitted his response “may have been caused by the use of the Afghani interpreter”. But as discussed above, based on the applicant’s evidence about how the delegate’s interview proceeded I consider that any interpreting difficulties had been resolved at the time as the interview progressed. At the hearing when I put to him he had not mentioned the Village Commander at the delegate’s interview he explained he does not remember a lot of the time. Yet, a very significant element of this claimed occurrence and of the applicant’s overall narrative of hating the Taliban had been that the village Taliban commander had orchestrated the applicant’s abduction, detention and torture. It was not a minor detail. As well, the applicant’s narrative[1] had been that the Taliban commander and his group took the applicant to their compound to be imprisoned. But at the hearing and delegate’s interview he described being taken to a villager’s house in the village that he said the Taliban had seized by force. When I queried this difference he merely said the house was the Taliban compound. However, as I pointed out, a villager’s house in the village seems quite different to a Taliban compound. And when I asked further questions about the house he at first said he knew the villager whose house he was taken to and they were still living there at the time, before later saying the family did not live there. Other of his evidence about this occurrence raises strong concerns. At the hearing the applicant’s evidence was that the wife and their child personally approached the Taliban as soon as he had been taken but were sent away, and then the wife and child personally returned after [number] days and persuaded the Taliban to release him. But as I pointed out to him this is quite different to his earlier narrative that he was released after [number] days when ‘later on my family through their contacts contacted the Taliban and upon their insistence I was set free from custody’[2]. In the following discussion after I put my concerns, it was only after I made the observation that the negotiator in such circumstances would have been a male member of the family or some village authority did the applicant then say there had been villagers present too. However, in light of his earlier account in the hearing where he only spoke of his wife and child personally negotiating with the Taliban on two occasions, I find unpersuasive this late explanation only made after my observation. The changeable accounts he has given at times about who abducted him, where he had been taken, and how he came to be released raise strong concerns with his narrative and evidence, and his credibility as a witness.
[1] Statement of 11 June 2014
[2] Statement of 11 June 2014
The applicant claims that after he had been held and tortured by the Taliban he then spoke against the Taliban to everyone, until in February 2008 he got a Taliban letter threatening him harm unless he stopped talking against them. He has not produced the letter as he says it was destroyed in a later house fire. However, in his narrative: just months before he had been detained and harmed in the small village by the local Taliban Commander and talibs; the Taliban detained him for a lengthy period in the actual village ostensibly without interference from police or other authorities; he said there were “lots” of talibs in the village, and they had demonstrated they could easily take reprisals against villagers who spoke against them. In light of his narrative, it is difficult to accept that during this time he continued to forcefully talk out against the Taliban to everyone.
In sum, I reject the applicant’s narrative and evidence about these occurrences and the causes. I do not accept that the applicant was abducted by Taliban Commander [Mr A] or other talibs and held captive and tortured for [number] days. I do not accept that he had spoken out against the Taliban, or continued to speak against the Taliban more forcefully after release, or that as a consequence he received a Taliban threat letter. I do not accept that he came to the adverse attention of the Taliban Commander or other talibs or gained their enmity at this time as he claims. Nor do I accept that he had gained a hatred of the Taliban Commander and Taliban that arose because of his treatment at their hands. I give greater weight to the problems I have with the applicant’s narrative and evidence than I do to the letters. I find that the applicant has fabricated this narrative for the purposes of the refugee matter and find that he is not a credible witness.
He was a [teacher] and the occurrence [in] May 2008
Other significant elements of his narrative cause me serious concerns. In summary, the applicant claims that he had been a [teacher] at the [school] in [Village 1]. Then the Taliban announced that girls were banned from attending school (he says this announcement was in April 2008 by Maulana Fazlullah via Fazlullah’s FM station). Because of the announcement of the ban the next day all of the parents stopped their girls from attending school. But in defiance of the ‘ban’, he and another teacher [Mr B] persuaded parents to let them drive girls to and from the school. However, after a few weeks [in] May 2008 some talibs stopped the vehicle, beat them and the girls, and shot dead [Mr B]. His beating stopped when he told the Talibs he would resign his teaching job.
He provided a letter from [the] school dated [April] 2014 in support of the claim to have long been a [teacher] there from August 2000 to May 2008. The letter provides scant detail about the scope of his duties beyond praising his broad abilities, and merely states he resigned after receiving ‘threats’ from the Taliban. My overall concerns with the letters that include this letter are discussed above. At the hearing when I queried why the letter was in English the applicant stated that in [such] schools the teachers mostly use English. However, as I pointed out, he had said that he did not have English language ability in Pakistan and had only learned some English in classes at a Church here. His explanation of the teachers at the school mostly using English did not support his claim to have been a teacher. He also provided a letter from Mr [C] dated [January] 2017 that refers to the applicant being a teacher in ‘[school] and a [Occupation 5]’. The letter does not name the school or when the [Occupation 5] work was done and does not refer at all to the applicant’s long and most recent employment as a [Occupation 2].
He provided a letter titled ‘Death certificate’ from Dr [G] dated [May] 2016 to support his narrative about the violent occurrence [in] May 2008. My overall concerns with the letters that include this document are discussed above. The ‘Death Certificate’ gives little detail beyond indicating that [Mr B] had been shot and died of his wound, and the applicant was present at the civil dispensary. In sum, that the ‘Death Certificate’ is in English, particularly mentions the applicant but oddly just to say he was present, and was prepared a lengthy 8 years after the claimed death, leads me to consider it was prepared solely at the father’s request to be sent to the applicant for the purposes of the refugee matter.
In light of my general concerns with the provenance of the letters, I queried whether there was other evidence that supported his claims. He had provided photos of his wife [working] in the village, but when I asked whether he had photos taken when he was teaching at school, he said no. There were no photos of him at school with other teachers. He said he had no photos with him, and he had never taken photos, and indeed he could not remember whether photos had ever been taken. When I asked whether there might be other documents that would show he had been a teacher, he replied the documents he had provided are the only documents he has. Indeed, he said, [the school] had not ever given the teachers any documents that showed they were teachers. There were no papers that showed he had worked as a teacher, and no employment contract. When I queried whether there would be a payslip he could show, he replied he was paid cash and no payslip was ever given. After I asked he said there was no document given when he terminated his employment, and the school did not give him a reference when he left. When I put to him my concern with his evidence that the school had never given him any document that show he worked there, other than the letter the father got much later, he replied that [some] schools had documents but [this school] did not. However, I disbelieve that during his claimed lengthy [number] year tenure as a teacher that ended in the significant murder of a fellow teacher, there was no contemporaneous evidence produced that showed this. I disbelieve that neither he nor the school had ever created a document in any regard and at any time that showed his long employment and/or the circumstances of his departure. As well, his quick dismissal of all of my suggestions as to contemporaneous evidence that might support his claims including his claim to have been a teacher, added to my concerns.
Significantly, he claims that the Taliban announced that girls were banned from attending school in an announcement in April 2008 by Maulana Fazlullah via his FM station. This momentous announcement made a significant impact across Pakistan and is well-known, but as I pointed out country information[3] shows it was made on 1 January 2009 and was said to take effect from at least 15 January 2009. The applicant’s response was that this announcement had been in April 2008. When I pointed out that Maulana Fazlullah had aired negative views about girls schools before the ‘ban’ but I was talking about the big radio announcement of an actual ban, he merely replied that they had heard the announcement on the radio. When I pointed out he had been [abroad] from June 2008 to April 2009, and was not in Pakistan at the time, he again replied the announcement had been in April 2008. In light of the discussion at the hearing I am satisfied that the applicant was talking about the well-known ban announcement by Maulana Fazlullah and not another earlier discussion on the radio. But the well-known ban was announced by Maulana Fazlullah in January 2009 and not in April 2008 as the applicant claims. The timing of the ‘ban’ announcement is a significant element of the applicant’s narrative about the events that followed including his defiance of the ban, and I find his evidence raises strong concerns with his narrative, evidence and credibility.
[3] Washington Times article, 5 January 2009, Taliban bans education for girls in Swat Valley, [>
At the hearing I discussed other concerns I had with his narrative of having been a teacher. He claims that in 2000 he was appointed to be a [teacher] merely by approaching the School Principal whom he was friendly with and saying he did not have a job. As the delegate pointed out in the delegate’s decision, country information shows that some teachers in some villages in remote areas do not hold a teaching qualification. Nonetheless, the applicant stated he had only completed secondary schooling and had no other qualifications at all beyond attending basic [Occupation 2] training. The applicant replied [it] had looser requirements. However, his explanation that in effect [his school] had lesser requirements for employing teachers is ostensibly incongruous with other of his evidence at the hearing that teaching methods at [this kind of school] were considered better than [other] schools. It is difficult to accept he was appointed to teach [subjects listed] to children of any age in light of his work background as [other labouring work] from 1993, and given that he had no experience at all relevant to teaching or related fields. I find the applicant’s evidence about being appointed in this way to be a [teacher], unpersuasive.
As well, at the hearing I discussed my concerns with the applicant’s story of teaching boys and girls together at a co-educational school during that time. A post-hearing submission cites two articles both dated 5 January 2009, the first about militants demanding an end to co-education, and the second that mentioned the Private School Owners Association imploring a reconsideration of the demand and pointing out that the schools had cooperated with other past demands such as purdah (screening women from men or strangers) and segregating male and female students. A third article dated June 2016 is well after the army intervention in Swat. While the articles show there were some co-educational schools in Swat in 2008-2009, the second article shows that at such schools there was strict segregation and purdah was practised. In sum, the applicant’s description of a private co-educational school teaching boys and girls together without any female teachers, and his narrative of him and another male teacher driving girls to and from school without other family members present, appears highly unlikely in light of the country information and his evidence about his small Taliban dominated village and the aggressive nature of the village Taliban Commander and talibs during that time.
Additionally, I have particular concerns with his evidence that he gave no consideration at all to the possible consequences of his actions such as how the girls had been placed in danger. As I pointed out, country information[4] showed that during this turbulent period in Taliban dominated Swat the Taliban had been attacking and burning schools and in particular girls schools, and he was in a rural village that he said had a large Taliban presence. He then replied that he thought the Taliban would not harm children and he was happy to take the harm. But as I pointed out, a teacher in Swat at the time would have been well aware of the Taliban attacks and their bad actions against schoolgirls. In light of the local circumstances at the time, the applicant’s evidence that he gave no consideration at all to the possible consequences of his actions such as how the girls had been placed in danger beyond thinking the Taliban would not harm children is unpersuasive. His evidence that he gave scant consideration to how he was placing girls in great danger raises strong concerns with his evidence and narrative.
[4] Washington Times article, 5 January 2009, Taliban bans education for girls in Swat Valley, [ UNESCO article, 10 February 2010, Education under attack 2010-Pakistan, [ type="1">
In his narrative he resigned as teacher after the Taliban attacked him and killed Mr [Mr B], and then fled to Karachi, where he immediately shipped out as a [Occupation 2] in June 2008. However, as I pointed out, in his narrative he completed his initial [Occupation 2] training in late 1998 but did not work as a [Occupation 2] because there were no jobs. He replied his number happened to come up when he travelled to Karachi. However, it is difficult to accept his story of mere coincidence that after 10 years of waiting, just as he fled to Karachi because of the Taliban attack, his number came up. As I pointed out to him, the timing of his shipping out in June 2008 strongly suggests that had been the reason for him leaving the village and travelling to Karachi, and not the claimed attack.
In light of my foregoing discussion about the applicant’s claims to have been a school teacher for many years, the timing of Fazlullah’s ‘ban’ announcement, the applicant’s actions after the ban, and the occurrence on 8 May 2008 that led him to travel to Karachi, I reject all of it. I do not accept that the applicant was ever a teacher as he claims, or that he defied Fazlullah’s ‘ban’ by driving girls to and from the school, or that talibs attacked his vehicle and killed [Mr B], or that the talibs beat him and the girls, or that he resigned as a teacher and fled to Karachi as a result. My overall concerns with the letters are discussed above and I give greater weight to the problems I have with the applicant’s narrative and evidence than I do to the letters/death certificate. I find that the applicant has fabricated this narrative for the purposes of the refugee matter and this leads me to find he is not a credible witness.
I cannot discount the possibility that the applicant is otherwise a supporter of female education but do not accept that he showed this support in the way he claims and on the evidence before the Tribunal do not accept that his support ever came to the adverse attention of the Taliban or caused him any difficulties in Pakistan before he departed or will cause him difficulties in the reasonably foreseeable future.
His and the family’s activities after the Taliban were expelled from Swat
The applicant claims that after he returned from an IDP camp to the village in August 2009 he became a member of the lashkar and the Peace Committee for [Village 1]. He stated he had then made it clear to the other members that he would be the one to give the names of the village talibs to the Pakistan army and this is because the Taliban had harmed and tortured him. He claims that because of his actions in handing names to the army, [in] November 2013 the Taliban phoned him and said: he had previously opposed them; talibs had been captured and a talib killed by the army; the wife supported the army in Swat- and so the Taliban would target the applicant and his family. He therefore took the family to relatives where he left them in hiding, and he went to Karachi. He provided two letters to support his claimed involvement- a letter dated [April] 2014 from the Chairman of the [Village 1] Peace Committee that stated the applicant had been a member of the village peace committee, and a letter dated [January] 2017 from the Head of the village council Mr [C] that stated he had been a member of the village defence committee and refers to the applicant being ‘against the views of the militant movement of T.T.P. in Swat’ and on their target list.
Available material shows that the applicant may well have been resident in the village for periods between August 2009 and November 2013. Country information shows that by August 2009 over 1.5 million Swat residents had returned to Swat following the military offensive which supports his narrative of having taken the family home at that time. In sum, I accept that he returned from an IDP camp to the village in August 2009. But the material also shows that he was distant from the village for long periods. His work as a [Occupation 2] led to him having many visits to Karachi as well as spending significant time outside [Pakistan] from 2008 to [2014]. He provided his passport and [Occupation 2 record of service] and these were also discussed in the delegate’s decision and at the hearing. They show that from 2008 after he went to Karachi, he spent lengthy times [abroad]: June 2008 to April 2009; February to September 2011; October 2012 to July 2013; January 2014 to his arrival here. As well, he says he attended in Karachi for courses and the documents support his evidence as they show such other attendances as: [familiarisation] in January 2010; medical examination in January 2011; [certification] in July 2012; medical examination and ‘certificate (ratings)’ in August 2012; and medical examination in December 2013.
However, I have strong concerns with key elements of his narrative and evidence about the events after August 2009. Firstly, in the applicant’s narrative once he joined the village Lashkar and Peace Committee he then took sole responsibility for handing the names of talibs to the Pakistan army. At the hearing his evidence was that he had made it clear to the village committee/councillors and other members that he would give the names to the army and this was because he was in the village militia and in the past had been tortured by the Taliban and was really against them. But as I pointed out, even the letters he had provided showed there was a village committee headed by a Committee Chairman and a village council headed by a Head of Councillors, and in light of this village and committee hierarchy there were many villagers who were well placed and ostensibly willing to advise the army about village talibs.
Secondly, the delegate’s decision shows that at the delegate’s interview he said he had given the names of up to 25 talibs to the army, but when asked could then name just two- the Taliban Commander [Mr A] and Commander’s [relative Mr H]. He said both had been arrested and the subsequent death of [Mr H] had led to the Taliban’s threatening phone call as they blamed the applicant for informing. At the hearing when I discussed his inability to name any more talibs than just two who had the highest profile- the Taliban commander and the commander’s [relative]- he said at first he remembered them because they were in a car, and then, because they were local villagers. Yet his earlier evidence had been there were lots of talibs in the village and he knew them because they were local villagers. At the hearing he also stated he took on the responsibility for informing to the army because he remembered the Talibs well, but when I pointed out he could only name two, he stated it has been a long time and he now forgets, and he did not name any other talibs. I have considered the applicant’s documented mental health issues and treatment but nonetheless find it difficult to accept that when his narrative about handing to the army many names of talibs is examined he has not been able to name or describe any others beyond the two who are in his prepared narrative.
Thirdly, the applicant claims that he demanded and took responsibility for informing to the Pakistan army because the Taliban had earlier harmed and tortured him. But in my foregoing findings I reject his narrative and evidence about being abducted and harmed by the Taliban Commander. I do not accept that he came to the adverse attention of the Taliban Commander or other talibs or gained their enmity and I do not accept that he had gained a hatred of the Taliban that arose because of his treatment at their hands as he claims.
Fourthly, in his narrative he attracted the enmity of the Taliban as they identified the applicant as the one who passed the names to the army and so particularly blamed him for the arrests and [Mr H]’s death. But the village Taliban commander and the commander’s [relative] would have been among the most prominent talibs in the village and they would have been identified as talibs by the army through any number of sources including the village elders and leaders and any number of villagers. His claimed action in his narrative of identifying them to the army would have been insignificant and would not have drawn adverse attention.
Fifthly, his evidence is that the Taliban phoned him [in] November 2013 for the sole reason of telling him they would soon attack him and the family. But as I pointed out to him, it is difficult to accept the Taliban would have so clearly fore-warned him in this way and so provided him with time to arrange for the family to move away and for him to return to Karachi where he often stayed.
Sixthly, I do not accept that the family have been in hiding in Swat. In the applicant’s narrative, during the Taliban phone call the wife had been mentioned as being an army supporter and the talib said the whole family would be targeted, and so since November 2013 the whole family had been in hiding in Swat, and as he said at the hearing, every 8 days or so they move between relative’s homes. To support his claim that the wife had come to the adverse attention of the Taliban in this way, he provided a [letter] dated [April] 2014 that said the wife had served as a [Occupation 4] from January 2010 to December 2013 and that gave no reasons for her ceasing service. Oddly, the letter was prepared and given to the wife months after she ceased service, and my general concerns with letters from the village provided by the applicant are discussed above. Nonetheless, photos ostensibly show the wife [working with] other women and [girls]. In sum, I cannot discount the possibility that the wife had been engaged as a [Occupation 4] in the village after the army’s intervention in Swat. But other of the applicant’s evidence leads me to consider that the wife and family had not been in hiding: when I asked how he got the documents from the villagers he described how his father went into the village to arrange and pick up each document. The documents ostensibly show they were prepared at different times ranging from April 2014 to January 2017. When I pointed out that the father’s repeated trips to pick up documents shows he had no fear of being in the village, the applicant replied that the father is old and infirmed and the applicant is the targeted person. However, the applicant’s narrative had long been that the wife and family had been included in the Taliban death threat. I consider the father’s easy entry to the village on multiple occasions does not support the claim that the father feared to be recognised and was in hiding. Nor does it show he had any fear of being identified and followed which would have easily revealed where the family were hiding. As well, as I discussed it is difficult to accept that moving between relatives’ homes in the home area, where the family are easily identified, would effectively hide the family from anyone with an adverse interest in them including the Taliban. In sum, I do not accept the wife and family are now or were in the past in hiding or moving regularly from house to house.
This finding is reinforced by another document provided by the applicant- as I said at the hearing, the delegate’s decision had discussed how in his [employment] contract dated [January] 2014 (for his last trip when came to Australia) he gave contact details for his [child] in [Village 1]. The applicant replied at first that maybe he did but he does not remember and then that he had to give his home address. When I pointed out that this was an address for the [child] and he could have given a relative’s address, he replied he gave that home address. That for work purposes the applicant provided contact details for his [child] at the family home in the village reinforces my finding that the family were not in hiding. I consider the wife, father and children have never been in hiding because they have no fear of the Taliban and because they have no fear of Taliban reprisals arising from the fact they are the applicant’s family. I do not accept the wife has ever been identified by the Taliban as a target because of her service in a village [workshop].
In sum, my strong concerns with significant elements of the applicant’s narrative and evidence about his activities in the village after the Taliban were expelled from Swat lead me to reject all of it. I reject his claims about him: being in the village militia and in the village peace committee; having an elevated profile and role in the lashkar/committee; taking responsibility for naming the talibs in the village including Taliban leaders; giving any names to the army; gaining the enmity of the Taliban; receiving a threatening phone call [in] November 2013 from the Taliban; moving the family to safety and him fleeing in fear to Karachi. I do not accept the wife has ever been identified by the Taliban as a target because of her service in a village [workshop]. Nor do I accept the claims that flow from his narrative including that while he was in Karachi the family home was partially damaged because of Taliban arson. My overall concerns with the supporting letters are discussed above and I give greater weight to the problems I have with the applicant’s narrative and evidence than I do to the letters. I find that the applicant has also fabricated this part of his narrative for the purposes of the refugee matter and this adds to my concerns that he is not a credible witness.
Conclusion- the applicant’s claims to fear the Taliban
My great concerns with significant elements of the applicant’s narrative and evidence lead me to find he has fabricated and embellished significant claims, and that he is not a credible witness. My overall and particular concerns with the supporting documents and letters are discussed above and I give greater weight to the problems I have with the applicant’s narrative and evidence than I do to the documents. As discussed above, the applicant has self-reported his past circumstances in Pakistan to his mental health experts but I do not take what he has told them as determinative of his credibility and the truthfulness of his narrative. I accept he has been diagnosed with [condition] but do not accept that the condition has arisen because of the occurrences he has claimed- other than his claim to have lived at times in Swat during the Taliban turmoil and to have returned from an IDP camp to the village in August 2009 which I do accept. I find that each of his claims has been fabricated for the purposes of his refugee matter and that he is not a credible witness. I do not accept that:
·In May 2007 he had been abducted by Taliban Village Commander [Mr A] or other talibs and held captive and tortured because he had spoken out against the Taliban and had refused to give them donations when asked at the Mosque, and was released after [number] days.
·After this he spoke against the Taliban to everyone, until in February 2008 he got a Taliban letter threatening him harm unless he stopped talking against them.
·He became a [teacher] at the [school] in [Village 1].
·In 2008 the Taliban announced that girls were banned from attending school but defying the ‘ban’, he and another teacher [Mr B] drove girls to and from the school. But after a few weeks talibs stopped the vehicle, beat them and the girls, and shot dead [Mr B]. His beating stopped when he told the talibs he would resign his teaching job.
·After he returned to the village in August 2009 he became a member of the lashkar and Peace Committee for [Village 1]. He took on responsibility for providing the names of local talibs to the Pakistan army. Because of this, [in] November 2013 the Taliban phoned him and warned him they will soon target him and the family. He therefore left the family in hiding with relatives in Swat and he went to Karachi.
·While he was in Karachi the family home was partially damaged because of Taliban arson.
·His wife and family being targets of the Taliban are in hiding and regularly move between relative’s homes in fear of the Taliban.
Considering his narrative as a whole, I do not accept any part of his narrative concerning why he feared to remain in Pakistan and why he fears to return.
Conclusion
Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a mature Pashtun man from [Village 1] in Swat in Khyber Pakhtunkhwa province. I find he is married and that his wife, [number] children and father all currently live in the family home in the village. I accept that the wife served in a village [workshop] as photos show. I find that the applicant did [other labouring work] in the home area before becoming a [Occupation 2] for [Employer 2]. Thereafter he spent long periods in Karachi and [abroad], and at times returned to the village before returning to Karachi to prepare for his next assignment as a [Occupation 2]. I accept that one of the periods he was living at home was when he and the family returned from an IDP camp to the village in August 2009. I find that he last departed Pakistan [in] January 2014 before travelling to Australia and arriving [in] March 2014, and he has now been in Australia for over 3 years. I accept that the applicant has some psychological problems. But in light of the foregoing credibility findings I do not accept any part of the applicant’s narrative concerning why he feared to remain in Pakistan and why he fears to return.
At the hearing I broadly discussed the security situation in Pakistan and how the DFAT report[5] stated that Operation Zarb-e-Azb had had a big effect at reducing violence around the country. I indicated that other reports[6] show the Pakistan military have continued the offensive against militants. My comments encompassed the DFAT report’s discussion about the military’s counter-terrorism Operation Zarb-e-Azb that commenced in June 2014 and how it had substantially reduced the level of generalised and sectarian violence throughout the country, albeit warning that “sleeper cells remain in many urban centres and continue to target state and civilian infrastructure. The rugged terrain and porous borders in Pakistan’s tribal areas and between Pakistan and Afghanistan present ongoing challenges for maintaining security and enforcing the state’s writ.” Reports from other authoritative sources[7] similarly show that in 2016 there had been a further significant reduction in violent incidents and casualties in FATA and throughout Pakistan. However, in 2017 some big impact terrorist attacks[8] causing high casualties validates DFAT’s warning that although diminished, terrorist cells continue to target state and civilian infrastructure. A government response to the uptick in attacks has been the launch in February 2017 of the counter-insurgency Operation Radd-ul-Fasaad across Pakistan.
[5] DFAT Country Information Report Pakistan, 15 January 2016
[6] The Express Tribune article, Army launches Operation Radd-ul-Fasaad against terrorists across the country, 22 February 2017
[7] FATA Research Centre, FATA Annual Security Report 2016, [ Pakistan Institute for Conflict and Security Studies (PICSS), Annual Security Assessment report 2016, [ European Asylum Support Office (EASO), EASO Country of Origin Information report Pakistan Security Situation, July 2016, [ UK Home Office Country Information and Guidance Pakistan, November 2015
[8] High casualty attacks in Parachinar, Quetta, Balochistan, Punjab Assembly in Lahore.
As I said at the hearing, country information shows violence is greater in Khyber Pakhtunkhwa province than Punjab province. I acknowledge that country information shows the Taliban and other militants have the capacity to undertake targeted killings in Swat of people they have an adverse interest in. But I do not accept that the applicant has ever been identified as a target by the Taliban or other militants, and I do not accept that the applicant, his wife or other family members ever gained the enmity of the local Taliban or any other agents as he claims. The applicant may hold views about female education but in light of the foregoing I am not satisfied that there is any more than a remote chance that as a result he will be targeted and harmed by the Taliban or other militants. I do not accept that he or any family member now has or will have in the reasonably foreseeable future the adverse interest of the Taliban or other militants or their agents for any of the reasons in his narrative.

As I discussed at the hearing, he is a Pakistan national who departed Pakistan legally with a valid Pakistan passport valid to [2018] and so will be able to return to Pakistan without difficulty. He would then be able to make his way to his village in Swat. The applicant would return to his village as a mature, married Pashtun man who had been absent for several years. I find that the wife, children and father live in the family home in the village without fear of the Taliban and so he will have strong family support when he returns. He does not claim to be an apostate. His home area is Pashtun dominated and so his ethnicity will not cause him any difficulties now and in the reasonably foreseeable future.
The applicant had worked as a [Occupation 2] for many years and this led to him being absent from the village for very long periods and at times he lived in distant Karachi. But he does not claim despite ample opportunity that these past absences caused him to come to the adverse attention of anyone when he previously returned to the village. I consider his long absence from the village since 2014 will not be considered remarkable by anyone. As well, as I put to him at the hearing, country information does not show he will face harm on returning to Pakistan because of his long residence in Australia. My comments drew on the DFAT report:[9]
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 chains operate throughout Pakistan. Both Urdu and English are recognised as 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. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West. (3.62)
World Bank data indicates that Pakistan had a net migration rate (the total number of immigrants less the annual number of emigrants) of -1,081,918 from 2011-2015. (2.8)
[9] DFAT Country Information Report Pakistan, 15 January 2016
Pakistan is a diverse country of more than 200 million with an active civil society. There are significant Pakistani diasporas globally, including in countries where English is often used. Many Pakistanis travel between these countries and Pakistan for business, social and family reasons. That the applicant has worked as a [Occupation 2] and travelled to Karachi and [abroad] often, and then lived and worked in Australia and can now speak some English will not cause him any difficulties on his return to Pakistan and his home area. It will not cause him to come to the adverse attention of the Taliban or other militants or any other agent.
In my credibility findings above I accept the applicant has some psychological problems based on the reports, Ms [D]’s oral evidence and the applicant’s evidence. In particular, Ms [D] states he still suffered from [condition] with significant [symptoms]. I accept that his psychological problems are attributable to past experiences and [condition], his unsettled circumstances and living conditions, social isolation, and his unresolved migration status. The applicant and representatives submit the treatment he has accessed in Australia has assisted him but if he returned to Pakistan: he will lose his current support structures; it is highly likely to re-traumatize him and jeopardize his treatment and the gains he had made; his [condition] could not be effectively treated in Pakistan if he felt unsafe; and he will be unable to access any treatment in Pakistan.
I accept that the applicant may experience dislocation upon his return to Pakistan merely because of the journey and the process of re-adjustment. He will lose his support network in Australia (his doctor, psychiatrist, psychologist, house mates, Op Shop colleagues, English class friendships), but then he will immediately gain the very significant support of his wife and children, father and other extended family. His migration status having been resolved- albeit not in the way he wants- the applicant will be returning to the familiar family home and to the close community in which he grew up, surrounded by close family and old friends. He will be familiar with the language, local social mores and village life. He will have settled circumstances and living conditions, and will not face the social isolation that reports he provided show he faced in Australia.
The focus of the applicant’s claims to fear to return to Pakistan concern his fear of Taliban retribution following his past interactions with them. The applicant and his representatives submit that ‘Given his [diagnosis] if returned to Pakistan, the chance of serious harm outweighs the prospect of the applicant subsisting in Pakistan’. But as I reject his narrative, I do not accept that he would be returning to the place where he personally suffered harm at the hands of the Taliban. Nor do I accept that he fears any Taliban retribution on his return as he claims. In light of my foregoing findings and the country information about improved security throughout the country including Swat, when he is living at home with his family I do not accept that he will consequentially have his sense of safety severely compromised or be re-traumatized or feel unsafe. In these circumstances I am not satisfied there is a real risk that he will suffer symptoms any more serious than he has so far shown in Australia or other impairments upon his return.
The applicant and his representatives submit that in light of the applicant’s particular needs and Pakistan’s under-developed mental health sector, the likelihood of him “surviving in Pakistan is not foreseeable nor reasonable”. At the hearing I discussed the DFAT report that stated health care in Pakistan is generally free and accessible to all Pakistanis, although the health care system suffers from a lack of funding and limited capacity. I acknowledge that the mental health sector in Pakistan is under-developed and under pressure and almost all of it located in the cities. But as I pointed out to him, country information[10] shows medical and mental health treatment and appropriate medicines are available in Pakistan and ostensibly would be accessible by him. The applicant agreed, albeit also saying ‘only if I’m left alive’, but in light of the foregoing findings I consider that he does not in fact fear future harm/death at the hands of the Taliban/militants as he claims. There is no evidence before me that he would be denied treatment or that treatment would be withheld from him for any reason. In sum, I find that he will be able to source and access medical and mental health treatment and appropriate medicine in his home province now and in the reasonably foreseeable future, if he chooses to seek such care. As well, as I do not accept he will feel unsafe when he is living at home, I do not accept his mental health treatment will be ineffective or hindered for that reason.
[10] Central Asia Online article, Mental illness among Pakhtuns increases, 6 March 2010, [ 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, [
I am not satisfied that the applicant’s medical and mental health conditions will prevent or significantly hinder him from working when he returns home. Indeed, the evidence that I accept shows he travelled to and from Karachi and worked as a [Occupation 2] on many trips for years between 2008 and 2014. I acknowledge that by [abandoning his position] he has likely breached his work contract with [Employer 2] and so will be unable to return to his work as a [Occupation 2]. But these commercial consequences are not serious harm amounting to persecution. As well he has financially supported himself in Australia through friends’ help but also work. A submission submits the applicant is committed to Australia as is evidenced by his filed Tax returns and paying taxes. At the end of the hearing when I asked him how he financially supports himself in Australia, he stated that he stays with friends and does [Occupation 3] work, although he gave vague answers when I sought further details about who he worked for and what he earned. The applicant’s [work] shows that his mental health issues and treatment have not prevented him from working in Australia.
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 discussed by Ms [D], 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. I am not satisfied that there is a real chance that his future condition will attract persecution that involves systematic and discriminatory conduct and involves 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; denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist[11].
[11] The non-exhaustive list provided in s.91R(2)
When I consider all of the applicant’s personal circumstances together and all of my findings about his narrative and evidence together, I find unconvincing and do not accept his claims that in Pakistan he faces harm from the Taliban or other militants, or because of his medical and mental health conditions or for any other reason. 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 his home area in Khyber Pakhtunkhwa province, for the reasons he has claimed of:
·     Religion: He fears the Taliban will harm him because he is a Sunni Muslim who actively fought for the right of education for women and had accordingly been targeted in 2008.
·     Political opinion: He fears the Taliban will harm him because of his political opinion (actual or imputed) as an anti-Taliban activist who had handed Taliban names to the army, and had joined the Village Defence Committee and the Lashkar (tribal militia).
·     Political opinion: He fears the Taliban will harm him because of his political opinion (actual or imputed) as a supporter of female education.
- Membership of a particular social group, of: the Village Defence Committee; the lashkar; asylum seekers who had lived outside Pakistan for a lengthy period and are imputed with a Western lifestyle.
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 his home area in Khyber Pakhtunkhwa province, for any Convention reason either when looked at individually or cumulatively.
Refugee criterion
In light of the above assessment, the Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if he returns to Pakistan.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
I considered whether on the evidence before me, 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.
I accept the applicant may face dislocation when he returns to Pakistan, as he has not been there since January 2014. But in light of the foregoing I consider the applicant will be able to return to his family and family home without difficulties and make his way in life from the time he arrives. I accept the applicant has some psychological problems and may well continue to have this condition in Pakistan. I acknowledge that in Australia he manages to get a good level of support. But I do not accept that on his return to Pakistan he will be unable to access support as is claimed or that support would be denied him. In Pakistan psychological support and counselling albeit limited is available if he wants to access it, and in addition he will be returning to the close family support of his wife, children and other family. I am not satisfied that the applicant’s medical and mental health conditions will prevent or significantly hinder him from working when he returns home. He has worked in Pakistan as a [Occupation 2] for many years and then worked as a [Occupation 3] in Australia. I do not accept that he will be unable to seek, get and maintain work. I am not satisfied the applicant will have psychological disorders that will attract the adverse attention of people in Pakistan such that he would face a real risk of significant harm.
In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if he is removed/returns to Pakistan.
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in 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, 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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
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.

Pfizer Pakistan, [ in Pakistan, [

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1517717 (Refugee) [2017] AATA 1497

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[2017] AATA 1497

31 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction