1600083 (Refugee)

[2017] AATA 3066

1600083 (Refugee) [2017] AATA 3066 (6 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600083

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Anne Grant

DATE:6 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2017 at 2:30pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Particular social group – Persons who work in education – Polio campaign worker – Person perceived as having Western views – Fear of honour killing – Fear of retribution from ex-fiancé’s uncle – Fear of harm from extremists – Internal relocation

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 438, 499

Migration Regulations 1994, Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 24 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was unrepresented in the review. 

   RELEVANT LAW

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

   Refugee criterion

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

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

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

8. 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.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 criterion

16. 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’).

17. ‘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.

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

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant claims to fear returning to Pakistan because he will be harmed or killed by the Pakistani Taliban because of volunteer work in the local school and the Polio Vaccination Program in and around his home village, and because he is perceived as having westernised views.  He also claims to fear returning to Pakistan because he will be harmed or killed by the Uncle of his former fiancée because he is perceived to have injured the honour of the uncle’s family.

    BACKGROUND

21. The applicant is aged [age] and was born in [a named village] in the Haripur district of Kyber Pakhtunkhwa, Pakistan.  His parents and [siblings] still live there.  He is a citizen of Pakistan.  He attended primary school in his village.  He then moved to Lahore and resided with relatives there (his father’s [relatives]) from [year] to [year], and completed secondary school.  He then studied in [Town 1],  a town approximately [time] minutes from his home village, where he undertook intermediate studies between [year] and [year].   He travelled there by bus from home.   From 2008 to 2011, the applicant attended [a] College in Abbottabad and resided on college grounds in a hostel.  He completed a [degree].  The applicant came to Australia [in] March 2013 on a prospective partner visa, under which he was required to marry [Ms A] within the period of his visa validity, and his last date to arrive in Australia was [in] December 2013.  However, almost immediately on arriving in Australia, the relationship encountered difficulties.  After some months, it became clear that his prospective fiancée was no longer prepared to marry the applicant.   He moved in with a cousin in [a city].  He lodged his claim for protection [in] December 2013. The foregoing background information is accepted as reliable and has been obtained from the applicant, his claim for protection and the information in the Departmental files.

22. In this case, the applicant’s identity and citizenship are not in issue.  The tribunal finds that the applicant is a citizen of Pakistan, of Sunni Muslim faith and has no right to enter or reside in any country other than Pakistan.

23. In considering this review, the Tribunal has the following information and evidence before it:

    ·The applicant’s application for protection including his accompanying statutory declaration;

    ·A copy of the Delegate’s decision provided by the applicant;

    ·The Departmental file related to the applicant’s student visa application, including his application for a visa and supporting documents;

    ·The Departmental file related to the applicant’s application for protection lodged [in] December 2013 including all supporting documents and a copy of the recorded interview between the Delegate and the applicant.

    ·Additional letters provided by the applicant [in] November 2016.

24. The file also contained material provided by a third party which was subject to a certificate under section 438(1)(b) of the Act. This material was not disclosed to the applicant due to the tribunal’s assessment that it was of no evidentiary value in the review and because the material was provided in confidence. The material contained untested and unsubstantiated opinion of a third party and for this reason the tribunal has paid no regard to the information, and has given it no weight in this review.

    CONSIDERATION OF CLAIMS

    Claim to fear harm from his ex-fiancé’s uncle.

25. The departmental files and the evidence from the applicant disclose that the applicant was engaged to [Ms A] (an Australian citizen) in February 2010 after first meeting her in 2009.  He lodged an application for a prospective marriage visa [in] November 2011 and [in] March 2013, his visa was granted.  The visa required him to marry by [December] 2013.  He came to Australia [in] March 2013.   

26. In his statutory declaration supporting his application for protection, the applicant listed this ground for seeking protection first.  He stated that he fears being killed by the uncle of his former fiancé due to the uncle’s perception that the applicant has damaged the family honour by agreeing to marry [Ms A].  In his claim, he stated as follows (note the name [Ms A] is misspelt repeatedly as [name] in the declaration):

    “I believe if I return to Pakistan I would face a real chance of being persecuted by my fiancé’s extended family as they would accuse me of wrong doing.   They blame me for leaving [Ms A] as they are not aware that the reality is that he did not want me anymore…

    The problem now is I cannot return to Pakistan as [Ms A’s] extended family in Pakistan blame me for the relationship break up.  They were not happy when I was chosen to be married to [Ms A]. This caused a rift between [Ms A’s] parents and the family in Pakistan.  [Ms A’s] extended family in Pakistan also started treating my parent and family poorly after my engagement to [Ms A]...

    I cannot return to Pakistan as [Ms A’s] extended families re against me.  They did not like me from the time I was chosen for [Ms A].  Her uncle in Pakistan wanted his son to marry [Ms A].  But since I was chosen by her parents the relationship between [Ms A’s] parents and their extended family in Pakistan became distant.  They now don’t talk to each other.  This now makes it hard for me as the real story is not being told to the extended family in Pakistan. These people hate me for being the one to come to Australia to marry [Ms A].   In Pakistan marriage is a very serious act and people kill each other if they do not get what they want.  These people are dangerous and I know I will not be able to live if I return to Pakistan.   They will be out to get me.  They will blame be (sic) for destroying the chance their son had to marry [Ms A], when the truth is that she did not want me anymore and has destroyed my life.”

27. In summary, the applicant’s evidence as relevant to the claim for protection given to the Delegate in interview was as follows:

    ·He and [Ms A] were engaged to be married in February 2010. 

    ·[Ms A] has an uncle in Pakistan who wanted her to marry one of his sons and that because her family had instead chosen the applicant, the Uncle perceived that his family honour had been harmed and that he now wants to kill the applicant. 

    ·There had been a rift in the family between [Ms A's father. Mr B,] and his brother since the marriage had been announced and the uncle had treated the applicant’s family poorly since the engagement was announced.  He referred to a phone call between his father and the uncle after he had already travelled to Australia in which the uncle had issued a ‘contingent’ threat, saying that if he didn’t marry [Ms A], he would be killed. 

    ·He said that persons like the uncle in Pakistan act without hesitation to restore their family honour. 

28. At hearing, the applicant gave more information about the man from whom he said that he fears being targeted and about the history of his difficulties with this person.  He confirmed that the uncle’s name was [Mr C].  The applicant gave evidence that he had been aware that the uncle was unhappy about the impending match at the very beginning of the engagement.  His fiancé’s father, [Mr B], has lived in Australia for many years but still holds some family property in Pakistan.  [Mr C] was managing and responsible for [Ms A’s] family property, near the village of [village name].  According to the applicant, her family was a rich and powerful family.  Because [Mr C] managed those assets, he wanted them to stay in his own family and that was why he wanted to marry [Ms A] to his son.  However, her own family wanted to retrieve those family assets from [Mr C], and if the applicant had married [Ms A], then he would have taken over his father in law’s family property holdings and managed them.   According to the applicant, this was the main reason why [Mr C] was so against the marriage – and why, according to the applicant, he felt that the decision to marry outside the family was a slight to his family honour.  The applicant pointed out the region on a map in which [Ms A’s] family assets are held, and it was noted to be quite close to his own village. 

29. It was put to the applicant that his was not a case where the marriage was illicit or disapproved of by [Ms A’s] family, or where [Ms A] had brought dishonour to her family by disobeying her parents in agreeing to marry him, because they had arranged the marriage and also complied with her decision to end the engagement.   The applicant agreed with this but stated that it was his fear that the uncle would nonetheless target and kill him because of his prior engagement to [Ms A].  He did not accept that the risk had lessened due to the estrangement and ending of the engagement.  He reiterated that honour was an issue very important to people like [Mr C], and that they act without any hesitation to kill people over honour.  He suggested that since he left, that [Mr C] had demanded that he be surrendered or a huge ransom paid. 

30. It was put to the applicant that if, as he said, [Mr C] was a powerful and violent man who wished to do harm over the engagement, it didn’t seem plausible that the applicant was able to live peacefully (as far as this particular threat is concerned) up until he departed the country.  Further, if, (as was his evidence), [Mr C] had expressed an intention to act to restore his honour and was a man not inclined to delay doing so, it was incongruous that the engagement would be publicly celebrated and [Ms A] return to Pakistan and stay safely there for three months during 2011.  These outcomes are not consistent with his claims that he faced a real and imminent threat from [Mr C].     In response, the applicant suggested that he probably wanted to kill them both when they were together, and the reason he didn’t do so when [Ms A] was in Pakistan during 2011 was because they were only engaged, not married.

31. The applicant said that [Ms A] and her family were now estranged from [Mr C], and that they have been fearful of returning to Pakistan.  However, the tribunal raised concerns that it was difficult to see how a risk of aggression would persist against the applicant when he was no longer associated in any way with [Ms A] or her family.  The applicant suggested that it was because [Mr C] did not actually know that he had been rejected by [Ms A] but believed that he had rejected her, thus causing an additional injury to family honour. 

32. The country information suggests that in many cases a male person involved in an honour dispute is able to negotiate with the ‘offended’ family members and allowed to escape retribution.  The tribunal raised the issue of negotiation or resolution of any remaining dispute such as was referred to in the country information with the applicant and, as noted above, the applicant suggested that a huge settlement sum, which his parents could not afford, had been demanded in return for his life.  He was vague about the specifics of this alleged ‘negotiation’.  A settlement proposal had not been raised by the applicant at any point prior to the hearing. 

1. The history of the applicant’s relationship with [Ms A] was the subject of doubt and scrutiny on the part of the delegate. Nonetheless, the tribunal accepts that the evidence on file and as given by the applicant supports a finding that the applicant was intending to marry [Ms A] and that this marriage was arranged by the applicant’s family and [Ms A’s] family on a visit by her to Pakistan in 2009.  The evidence also supports a finding that a public engagement ceremony was undertaken in Pakistan in February 2010, in order to declare their intending marriage, and that the applicant and [Ms A] chatted via internet sites over subsequent periods in which they developed some rapport, and had some chaperoned direct contact when she visited Pakistan in September – November 2011, and via telephone over the ensuing period.   The evidence suggests that when the applicant travelled to Australia after his visa was granted, the applicant intended to marry [Ms A], and was under the impression that she intended to marry him, as arranged.  The applicant came to Australia expecting a wedding and commenced living with his intended in-laws.  However, [Ms A] changed her mind and was no longer prepared to marry the applicant, causing consternation and difficulty to both her family and the applicant.   His evidence is that her family encouraged him to try to convince [Ms A] to proceed and that her parents were keen for the marriage to take place even after she expressed her intention.  Ultimately, however, the family accepted her decision and the applicant was told that the wedding would not proceed and that he must return to Pakistan.   The applicant’s evidence about these matters has been consistently given.  The delegate had some doubts about the arrangement of the marriage but the tribunal does not share those doubts. 

2. However, the tribunal had some difficulty accepting all of the applicant’s evidence.  In assessing his credibility, the tribunal has considered the nature of and inconsistencies in his evidence given at various stages during the protection application. In relation to the ongoing risk to himself from [Mr C], the applicant’s evidence is that he was at risk of being killed because he had agreed to marry [Ms A] and also that his father was told that he would be harmed by the same person after he had left the country if he ‘didn’t go through with it’.  It was noted that these two threats are internally inconsistent with the claimed intention of [Mr C] in protecting family property.  In attempting to explain this inconsistency, the applicant suggested that [Mr C] is uneducated and is not aware that it was not his (the applicant’s) decision to end the engagement.  This response does not resolve the inherent incongruity of the applicant’s two claims.

3. The tribunal can understand that a family dispute about land such as the applicant has outlined might potentially cause conflict within the family and place [Mr C’s] direct family at risk, if it is accepted that [Mr C] is aggressive.   However, the tribunal raised concerns that it was difficult to see how a risk of aggression (if one existed) would persist against the applicant when he was no longer associated in any way with [Ms C] or her family.   The tribunal finds the applicant’s explanation (that a new offence to family honour has been made because he is perceived as ‘rejecting her’) by [Mr C] to be implausible and inconsistent with the uncle’s expressed desire to oppose the marriage and retain control of the family property, and with any common sense understanding of the applicant’s evidence of the dispute.  The tribunal finds the applicant’s evidence about specific threats from [Mr C] to be incongruous, internally inconsistent and lacking in credibility.   

4. In relation to the alleged demand for money to ‘resolve’ the dispute and avoid death, the Tribunal notes that this claim was only raised at hearing and not in his claim or the discussion with the delegate.  This is a significant aspect of the risk he claims to face, and the assertion was phrased in vague terms (‘they asked for a ‘huge sum’’) and is unsupported by any other evidence.   The tribunal does not accept that a phone call took place between his father and [Mr C] in which [Mr C] threatened to kill him ‘if he didn’t marry’ as arranged, or that a later demand for a ‘huge ransom’ was made in return for his life to be spared.  The tribunal considers that the evidence about him being killed if he didn’t go ahead with the marriage was manufactured by the applicant in an attempt to strengthen his claim and suggest that there was a persisting risk from [Mr C] once the engagement ended; and is untruthful.    The tribunal does not accept that a later negotiation where a ‘huge sum’ was demanded in return for his life actually occurred, but finds that this evidence was manufactured in response to the tribunal’s suggestion that the country information reports that negotiations and a financial payment are sometimes available to men to avoid ‘honour killings’. 

5. During the hearing, it was put to the applicant that even accepting that the uncle was unhappy about the impending marriage, the applicant had lived in the country for several years after the marriage was announced and that he had experienced no threats or harm from [Mr C] in that time.  The applicant agreed to this suggestion.

6. It is reasonable to consider that now that the engagement has been terminated, the applicant would no longer be considered a ‘risk’ or ‘offence’ to [Mr C] or his desire for control of the family estate, or to the honour of the family. Even if it is accepted that there was great resistance to the union from [Mr C], the tribunal considers that the applicant is overstating any ongoing or foreseeable risk.   In particular, the tribunal places considerable weight on his evidence that he lived without incident in the small village for three years after the public notification of his engagement, and during which period his prospective bride was in Pakistan to celebrate the arrangement for three months in 2011.  Common sense (and his own evidence) would suggest that the anger caused by the engagement would have been most forceful once [Mr C] heard of it and any acting out on his grievance would have been expected during that period or at the very least over the next few years when the applicant was within easy reach of [Mr C].  [Mr C’s] behaviour is not consistent with the applicant’s description of his stated intention and nature.  He could potentially have avoided the union by violence directed at the applicant over a lengthy period prior to him leaving the country, but did not do so.  The tribunal has not accepted the evidence of the applicant about threats made to him ‘if he doesn’t go through with the marriage’ or the demand of a ransom to avoid being killed.  

7. The tribunal does not accept that [Mr C] now seeks to harm the applicant because he perceives that the applicant rejected [Ms A], or that he perceives this as a new offence to his honour.  As noted above, at best the evidence which has been accepted suggests that [Mr C] was unhappy about the applicant marrying [Ms A] because of the risk to his own control of family property.  To accept that he would be otherwise than relieved once the marriage failed to proceed is not plausible. 

8. After considering all of the applicant’s accepted evidence about [Mr C], the tribunal has accepted that there was a proposed marriage and that the uncle of the bride was unhappy about that marriage because he wanted her to marry one of his sons to keep control of the family property.  This is evidence of a family dispute but falls far short of explaining the seriousness reported by the applicant, said to place him at risk of an ‘honour killing’.  Taking into account the public celebration of the engagement and the fact that the applicant lived in the country in close proximity to the uncle up until he left to marry [Ms A] without any threats or actions taken by [Mr C], the tribunal does not accept that there was ever a risk of serious harm to the applicant from [Mr C]. The tribunal does not accept that the applicant is currently of any  interest to [Mr C] given the ending of the engagement.  The tribunal has not accepted that the applicant has been threatened ‘if he didn’t go ahead with the marriage’ or that a ransom has been demanded in return for his life. The tribunal finds that there is no real chance of serious harm to the applicant from [Mr C] because of the marriage proposed with [Ms A].  The tribunal similarly finds that there is no real chance of serious harm to the applicant from [Mr C] because of the breakdown of the marriage or because of a perception held by [Mr C] that it was the applicant who ended the marriage. The tribunal finds that any risk of harm to the applicant from [Mr C] if he was to return to Pakistan is remote. 

9. A preliminary issue also arises in this case about whether the essential and significant reason for the harm feared is for any of the convention grounds.  The fear of harm from [Mr C] as stated by the applicant is not for reasons of race, religion, political opinion or nationality.  The only relevant convention ground could be if the applicant fears being persecuted as a member of a particular social group.      

10. The tribunal considered potential social groups.  The fear of harm he raises is aimed only at him.  The applicant’s family has not been threatened or targeted for harm, so membership of his family group is not appropriately considered to be a significant reason for the persecution he fears.   On his evidence, he was targeted because he participated in an engagement with [Ms A].  The tribunal considered whether a potential social group of ‘persons associated with [Ms A's] family’ might be a ‘particular social group’.  The applicant believes that the [family] is at risk from [Mr C] due to the decision to marry their daughter outside the extended family.   Even if this were so, the applicant’s engagement did not proceed to marriage so he is not a member of and is no longer associated with that family. He could not be perceived as a member of the [family] or a person associated with them.

11. The tribunal considered whether the applicant could be considered to be a member of a particular social group of ‘people at risk of honour killings.’   The tribunal is satisfied that the country information supports a view that honour killings are indeed a significant ongoing issue in Pakistan.  The United Nations Office of the High Commissioner for Human Rights reported in May 2014[1] that:

    “Every year, hundreds of women are killed in Pakistan as a punishment for marrying a man their families have not chosen or for refusing an arranged marriage,” Pillay said. According to the Human Rights Commission of Pakistan, 869 women were murdered in so-called ‘honour killings’ in the country last year, but the real figure could be much higher, with many such killings believed to be disguised as accidents, or not reported at all.

    “The Pakistani Government must take urgent and strong measures to put an end to the continuous stream of so-called ‘honour killings’ and other forms of violence against women,” the High Commissioner said. “They must also make a much greater effort to protect women like Farzana Parveen. The fact that she was killed on her way to court, shows a serious failure by the State to provide security for someone who – given how common such killings are in Pakistan -- was obviously at risk.”

    “People who carry out ‘honour crimes’ are rarely prosecuted, and even when they are, they often receive absurdly light sentences, considering they have committed pre-meditated murder,” Pillay said. “This is unacceptable, and it is clearly both the State’s and the judiciary’s responsibility to work seriously to deter such crimes, and ensure that people who commit them are brought to justice.”

    [1] Reported at accessed 3 February 2017.

12. The country information generally refers to the persons who are the victims of such killings or threats of killings as being (as well as most usually women) people who are or are perceived to be involved in ‘improper’ or unsanctioned relationships, and the principal risk is from immediate family.  The applicant’s circumstances do not fall within these types of situations.  The applicant is not a person who would generally be perceived or considered as having a personal history which places him at risk of an honour killing (for example - having conducted an illicit relationship, married for love or against his own family or his bride’s family wishes.)  In any event, his expressed reason for his fear is not that he has a profile as a person who has married or acted against traditional values.  It is that he was engaged to be married to one particular woman.  The tribunal finds that the applicant is not a member of and would not be perceived as a member of the particular social group of persons who are at risk of an honour killing.

13. The evidence suggests that there has been a personal and property related family dispute which no longer involves the applicant.  The applicant is no longer a potential family member of the disputing family.  In relation to the family honour, [Mr C] is not [Ms A’s] father and does not make decisions about her or her family honour.  There is no suggestion that the applicant has taken any action against the wishes of his prospective bride’s family.  He has no ongoing relationship with her or her family. 

14. The tribunal finds that the essential and significant reason for the harm feared in this particular claim is a personal and property related dispute and not for the applicant’s membership of any particular social group.   The tribunal finds that the applicant’s stated fear of harm from a potential former relative is not for a convention ground.     

    Claim to fear harm because of his work in [a school] and on Polio Vaccination Campaigns

15. The applicant’s claim to fear harm from extremists (‘terrorists’) in Pakistan was presented as the second ground in the declaration supporting his application for protection.  

    “Together with the worry of my life being in danger from [Ms A's] (sic) extended family in Pakistan, I also worry of my experience I had with the terrorist group when I was a volunteered at [a school] to help with the polio vaccination to children in the village.  The terrorist asked me to stop and leave or else my life will be in danger.  I was lucky at this time I had to come to Australia.  Now if I return this may be another danger for my life as these men will also be on the lookout for me.  …

    Then I also had the terrorist group who were after me since I had volunteered to help [a village school] with the polio vaccination immunization.  The terrorist are against these modern and good methods of prevention of any diseases, they see it as an infiltration of the west in Pakistan.  They dislike America so they dislike anything to do with the western world, and anyone who helps with the spread of the west in Pakistan is in great danger of their life.  I do not see it this way.  I want what is best for the people so I decided to help. But did not think this act will become so dangerous for me.  Also knowing that I was leaving Pakistan to come to Australia was a relief from me being watched by the terrorist and not knowing which minute I would be killed for really no wrong doing.”

16. In summary, the following information and evidence was given by the applicant during the interview with the delegate:

    ·He worked as a volunteer teacher at the school in [a village] during college holidays from around 2010 or 2011. The school had difficulty getting teachers and he was asked to donate time to help out and agreed. He became involved in working on polio campaigns through his involvement in the school from around [2010].

    ·He said he was a [member of] the polio team associated with [the] school and he felt an obligation to educate and assist people in the community because of the number of young people affected by polio in the area.   They encountered some resistance and opposition from local townsfolk.

    ·He gave evidence that he was stopped on his way to [Town 1] one day and warned to stop his involvement in the polio program, by a man with a beard wearing a cap whom he had never seen before.  The person said what he was doing was very wrong and very dangerous for him.   He thought this incident occurred around October 2011. 

    ·The applicant also described an incident where a campaign camp which had been set up in a nearby village had been vandalised.  He said that the people who did this told the workers ‘you have been told to stop this, why are you still doing it?’

    ·The applicant had also described a phone call which he received from an unknown number which was a brief verbal threat where the caller said “Our people have given you the message and you haven’t listened to us.  You are responsible for what happens next.”   

    ·The most significant event relied on by the applicant in his claim and as outlined in the interview with the delegate was an attack on his polio campaign colleagues as they travelled to a local village [where] the Taliban were very active.  He described this event as taking place in 2012, and that he himself was supposed to be working on that day but his father suffered [a medical problem], keeping him at home with his family.  He described the four workers as being ‘abducted’ in his departmental interview. 

    ·The applicant described his father as being stopped and told to tell his son to stop the polio work, though it is not clear if this was before or after the attack on his colleagues.  He said that after this he got work at [a] College – he told the delegate this was around September 2012.

    ·His involvement with the polio program included him personally administering the polio dosage.  However when questioned about the dosage he appeared unsure and confused.    The applicant referred to the dosage being only one drop per child, and there being no need for repeated dosage.  The officer put to him that this was not the generally accepted dosage. 

    ·The applicant said he had undertaken specialist training about the polio program. 

    ·After the attack on his colleagues and the threat made to his father, he found work at a[a] College because he wanted to get away from the danger until he came to Australia. 

    ·He fears returning because of the problems he faced doing teaching and polio work and because ‘they are already looking for me’.  He said he would have to start working as a teacher again and this would expose him. 

    ·After he left for Australia, ‘these people came to my village and stopped my father and asked where his son is.  They said they wouldn’t let me go and I was lucky to escape that day.’ 

17. Before the Tribunal, the applicant gave evidence that he started teaching in 2010 - during breaks from college.  On 15 November 2016 the applicant had provided a letter to the Tribunal in support of his claim which states as follows:

    “This is to certify that [the applicant], has worked as Teacher on voluntary basis in [a] School, [Village 1], [Town 1], District Haripur,(Pakistan) from [2010] to [2011].

    During the aforementioned period, he has exhibited his full devotion and diligence in the School.  His work, without exception, reflected the excellence performance of his duties in imparting quality education to the students.  Due to his friendly and co-operative attitude, he has always been popular amongst all his colleagues and superiors.  He is hardworking, intelligent and very conscious to his job description.

    We wish him good luck in every walk of life.”

    This letter is signed and stamped:  [Senior position] [School] [Village 1] [Town 1], District Haripur, [February] 2015. 

1. The applicant had previously provided his Polio Team card and also provided additional evidence on 15 November 2016 which included an experience certificate and Polio Team Member statement, both dated [in] February 2015 and apparently signed by [senior staff] from a Health Centre in [Town 1].  The letter states as follows:

   “This is to certify that [the applicant], resident of [named village], District Haripur (Pakistan) aging about [years], has cooperated with Polio Team during AIDS in local arera (sic) in performing social mobilization in schools and community and also helped to motivate communities for the same during the period from [2011] to [2012] in[Town 1], District Haripur. 

   We appreciate the service rendered by [the applicant] as he has extended his full cooperation, obviously, beyond the normal scope of work for the National cause.

2. At hearing, the applicant gave more information about the polio program and his involvement.  His evidence was that the vaccination program ran two or three times a year only for 2 days at a time.  He would attend during school holidays or he would take time off work once he had started working to do this volunteer work (teaching and on polio campaigns).  The applicant explained that he was unclear about the vaccine amounts and dose at the interview with the delegate because he didn’t actually administer the vaccine.  His role was to be the person writing down the names and registering the children who were vaccinated by the program.  He also spent time helping to convince any parents who were concerned about it that the vaccine was safe.    He gave evidence that rather than ‘extensive training’ about the campaign, in fact, the person in charge had just given them a briefing each day to tell them their jobs and also to discuss any problems they may encounter.  This included what to say to villagers who were against the vaccine.  Usually, they would just do the program at the school but sometimes it also involved travelling into the village to visit families who refused to bring the children to school or were unable to do so.  The polio program provided the paperwork for him to complete as the children were vaccinated.   

3. The tribunal asked the applicant why he had previously suggested that he had been involved in dosage and administering of the vaccine.  He gave evidence that he was very scared and tired during the delegate interview.  The applicant said that it was clear he wasn’t thinking straight, because he could have just read the dosage on his Polio program identification card, which said it was two drops per child – but he was just trying to answer the questions and found the interview to be very traumatic.  During the hearing the card was retrieved and the interpreter confirmed that the card includes the following information on the FRONT of the card “Two drops of polio every child, every time.”

4. The tribunal found the applicant’s oral evidence at hearing about his involvement in the school and the polio program to be freely given, reasonable and credible.  This evidence demonstrated a more limited involvement in working on Polio campaigns than he had suggested in his earlier discussion with the delegate.  He did not attend specialised training in the weeks prior to a campaign, was not a [senior staff member], and he did not himself administer the vaccine.   His evidence at hearing contradicted and was inconsistent with some information he had previously given.  

5. The tribunal finds that in the interview with the delegate, the applicant was embellishing and overstating his involvement in the polio program, in an effort to bolster his claim.  Nonetheless, the tribunal accepts his evidence at hearing about the work he did as a volunteer teacher and polio campaign worker and is satisfied that he had some involvement in the polio program as a consequence of his being a volunteer at the [school] in [a] village, during 2011 and 2012.  The tribunal finds that his involvement was as a member of a team, and principally involved in setting up ‘camp’, talking to local families about the value and safety of the vaccine and registering children who were administered the vaccine, and that this involved two days’ work, two or three times a year.  The letter from the Health Centre generally supports the oral evidence he gave at hearing but the tribunal considers that it would be unwise to rely on it as proof that he worked for the whole period on campaigns (as it suggests) until  [a date in] December 2012 for reasons which will be discussed further below.     

6. The applicant claims to have received threats whilst he was working on the polio campaign from persons he suspects as Taliban.  The applicant did not claim to know which particular group threatened him but noted that the principal Taliban group active in his area is the TTP (Tehrik -E Taliban.)

7. The applicant gave evidence about the incident on the road to [Town 1] that this was in early 2012, around February or March.  He said he was riding his [vehicle] to his father’s work and a bearded man (who he believes was Taliban) stopped him and told him that ‘if he does it again, you will know what will happen to you.  You have no idea how many people we have already killed and attacked.’  The applicant’s evidence about the threat has been generally consistent, though the timing of the threat has varied from October 2011 (in the Delegate interview) to early 2012.    He explained at hearing that the polio campaign was working in [village] at that time.  He said that the Taliban was very active in [a village] and [Town 1]. There had been a bomb explosion in [Town 1] in 2010 and attacks generally around the region, including in Peshawar. 

8. During the hearing, immediately after discussing the first incident where he was stopped on the road, the applicant was asked about another incident where a camp was vandalised or damaged (which  he had described to the delegate).  In response, the applicant instead described the incident in June 2012 where his friends were killed and injured whilst on a campaign that he too was supposed to be working.   The vandalization incident had earlier been described as a separate attack on polio campaign workers. 

9. The applicant also gave evidence that he received a threatening telephone call from an unknown person warning him off future involvement in polio work.   His evidence on this event has been consistently given.   The applicant confirmed however at hearing that even after this second warning, he continued to work on the polio program as required. 

10. At hearing, the applicant gave evidence about the attack on his colleagues which was generally consistent with the information given to the Delegate. He was asked the name of the four workers and what their fate was.  He said two were killed and two were injured – those killed were named [name] and [name], and those injured were a woman called [name] and a man called [name].  He gave evidence that this was in June 2012.  Subsequent to the hearing, the tribunal could find no confirming news reports about an incident which fit with the applicant’s description during any part of 2012.  Many other reports were noted, particularly at the end of 2012. 

11. As noted in the Australian Government DFAT Pakistan Country Information Report 15 January 2016 at 3.25:

    Though NGOs are weak, Pakistan otherwise has an active civil society sector. Human rights organisations are at risk where their activities threaten militant groups or other vested interests; mere association with the West is not the primary motivation in these attacks. This is most prominent in relation to polio vaccination programs, which the TTP has publically banned and characterised as a front for espionage or a conspiracy to sterilise children. From February 2011 – February 2015, militants killed 70 polio workers throughout Pakistan.

12. The country information generally supports a finding that the applicant’s evidence about threats and actions he reported from members of the Pakistani Taliban because of his work on the polio campaign is plausible.   His evidence is generally consistent with widely publicised reports from reputable sources that the Pakistani Taliban increased pressure on and aggression towards polio workers during 2012, and that acts of intimidation and attacks of a similar nature to those disclosed by the applicant took place in areas where the Taliban had a strong following – such as the applicant’s area of Khyber Pakhtunkhwa.  It is of some concern that no report of the serious attack on his colleagues could be easily located amongst the reports of other attacks, bombings and violence in Khyber Pakhtunkwha during 2012[2], either specifically against polio workers or more generally.    However, in the context of generalised violence perpetrated by various armed groups or self-described Pakistani Taliban in Pakistan during 2012, it is conceivable that this particular incident was not reported, or not reported as related to the Polio Campaign.  The applicant has consistently described that the attack on his colleagues was a triggering event which caused him to fear for his life due to the involvement he had with the polio program.  His description of his friends’ names and their death and injury at hearing was given without any hesitation, and he had not been asked for that information during the first interview.   

    [2] See for example the list of terrorist attacks outlined on Wikipedia in Pakistan in June 2012, accessible here:  >

    After considering the applicant’s evidence and the available country information, the tribunal  accepts that the applicant was threatened on at least two occasions to cease involvement in the Polio campaigns.  The tribunal finds that it cannot rule out that an attack on the applicant’s colleagues occurred during 2012 of a nature that he describes.   The tribunal cannot be reliably certain of the date.  Nonetheless, the tribunal proceeded to consider his claim based on a finding that at some point between February and June 2012, an attack on workers that were known to him occurred as they travelled on the polio vaccination campaign in or near [a village] , killing two workers and injuring two others. 

13. The applicant gave evidence at the hearing that he was very scared by this incident and his father urged him to avoid travelling to any of the dangerous areas nearby. 

14. At hearing, the applicant suggested that he did participate in further polio campaigns after his friends were attacked in June 2012.  He had not given this evidence in his interview with the delegate.  He suggested that he himself had to administer the polio vaccinations at that time, because there was no one else to do it.  When he was questioned about this evidence as being inconsistent with his earlier evidence (it was not mentioned in his claim or before the delegate, and he had stated clearly that he was not involved in the actual administering of dosage whilst working on the campaigns earlier in the hearing) the applicant suggested that he was scared to do this job but he remained in his own village where it was relatively safe and he did this campaign work out of necessity.  The tribunal considers that his evidence about continuing his involvement on polio campaigns after the attack on his colleagues was not credible and was untruthful. It is possible that it was manufactured to support the dates in the Polio Campaign letter he had tendered and to strengthen his claim.  The tribunal reached this conclusion after taking into account his evidence at hearing on this point, which it found unconvincing.  The tribunal also notes that this evidence is inconsistent with his clear lack of knowledge about the physical dosage and administering of the vaccine, which he readily admitted earlier in the hearing.  The evidence that he continued to work on the campaigns even after the attack on his colleagues, also contradicts his own expressed fear for his own safety after that attack and his decision to cease that work due to the danger.  The tribunal does not accept the evidence of his being involved in any Polio Campaigns after June 2012 as being truthful.  

15. The reference from [a] College confirms that he worked there from March 2012 to March 2013.  The applicant gave evidence at hearing that the dates given by the college are correct.  The tribunal finds that the applicant did commence work at [a] College from March 2012.  The tribunal finds that the evidence suggests that he found this work before the attack on his colleagues but after the other threats made directly to him.   The work at [the] College was full time, paid work.  The work on the Polio Campaigns or at the school was occasional voluntary work and is not of a nature which could be considered to give the applicant a profile as a polio worker or a teacher, nor would it be properly considered to be his career.    

16. The evidence is that before and after he stopped participating on the polio program, he was working as [another occupation] at [the] College, which is located south of [Town 1] at [a location] on the [name] road.  At hearing, the applicant agreed that he did not receive any threats, nor was he the subject of any further interest by extremists whilst doing that work after June 2012.  The tribunal is satisfied that the applicant would find work either at his former employer [at the] College or elsewhere in that field if he was to return to Pakistan.   This finding is based on his past experience and behaviour whilst in Pakistan, and his work history both in Pakistan and in Australia.  Based on his own evidence, the tribunal finds that he would not be at risk of being targeted by the Taliban or extremists in doing that work.

17. The applicant claims to fear being targeted and killed due to his being a person who has a profile as a polio worker, a teacher and because of a perception that he shares westernised views.  At hearing he reiterated that the Taliban is opposed to education and to the polio vaccination program and also to persons who work with Non-Government Organisations (NGO’s) such as the World Health Organisation or UNICEF.   He did not suggest at any point that he has been threatened or subject to persecution because of his volunteer teaching or because of a perception that he has ‘westernised views’; but did raise that issue more generally when referring to the groups perceived as the enemy of the Pakistani Taliban – because he argues that the Taliban are opposed to education and any involvement with foreign NGO’s who run polio campaigns.   The tribunal has no evidence tending to show past persecution of the applicant due to his having been a volunteer teacher or because he was perceived to have westernised views.

18. The Tribunal accepts that the country information reflects generally that the Taliban in Pakistan has demonstrated an opposition to education and carried out attacks on schools, teachers and students for some years now. The International Crisis Group reported in June 2014[3] that:

    Any schools, but particularly girls’ schools, are considered soft targets to further the militants’ ultraorthodox agenda […]
    

    [3] International Crisis Group, Education Reform in Pakistan, 23 June 2014, V. Militancy, Counter-Insurgency

    and Education

    The fact that Malala’s assailants could attack her in broad daylight in Mingora, Swat’s capital, spoke volumes about insecurity close to four years after the military operation ended and the risks children, particularly girls, and teachers continue to face in KPK and FATA. With Fazlullah, now the TTP leader, reportedly operating out of bordering Afghan territory, the militants have escalated attacks, including on schools in KPK and FATA, such as the 5 February [2014] bomb outside a girls’ school in the former’s Bannu district in which eleven people were injured, most children. The TTP and other jihadi groups have threatened teachers and pupils attending coeducational or girls’ schools, prompting parents to keep children home, teachers to request transfers and many schools to close for a few weeks to years.

19. In relation to the risk of being persecuted due to being perceived as holding westernised views, the tribunal is not satisfied that there are credible reports tending to support such a risk from terrorist groups or other parties in Pakistan.  According to the Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 15 January 2016 at paragraph 3.62:

    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.

    Does the applicant have a well founded fear of harm in Pakistan for a convention ground?

20. A fear of being killed is a fear of serious harm and the reasons given for the applicant’s expressed fear in this case are due to his membership of three particular social groups – namely persons who work in education, polio campaign workers and also persons who are perceived as having Westernised views.   The essential and significant reasons for the fear of harm from the Pakistani Taliban he expresses are based on those convention grounds.

21. The Tribunal must consider whether the applicant’s fear of being harmed on return is ‘well-founded’.  The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[4]

    … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

    [4]   Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

22. The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring; however, the chance of it occurring must be more than “far-fetched” or “remote”,[5]  and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”; a fear “is not well-founded if it is merely assumed or if it is mere speculation.

    [5]   Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.

23. Whenever asked about whether he could return to Pakistan, the applicant observed that Taliban attacks against various targets such as army schools, polio workers and other civilian (and random) targets continue throughout Pakistan. He referred to what had happened to polio workers in the past and continued to occur.  He said that if he were to work on a polio campaign again, he would risk being killed.  It was put to him that actions taken against polio workers appear to be taken whilst they are actively involved in that work or have a public profile promoting the campaigns.  The applicant agreed with this suggestion, noting that the terrorists like to attack people working together to make a big impact.  In response to a question about whether his family had received any threats in his absence, he said his brother was too afraid to do the same [work].  The tribunal finds, based on his own evidence, that there has not been any ongoing threats against or interest in the applicant from extremists since he stopped working at the school or on polio campaigns in mid 2012. 

1. As to his assertion that he would be at risk if he undertook that work again; as noted above, the applicant has a history of working in unrelated paid employment, both in Pakistan and in Australia.  In the period of approximately 9 months prior to coming to Australia he had not been undertaking polio campaign or teaching work, but was working in full time employment.  He is an educated young man with experience and a work history both in Pakistan and in Australia and could readily work in areas of employment unrelated to the volunteer work he did in the past.   He gave evidence that he has been working as [an occupation] in Australia and very much enjoys that work. The tribunal finds that the applicant would not be likely to undertake polio campaign work or volunteer teaching [work] if he was to return to Pakistan in the foreseeable future.  The applicant did suggest that he feels polio health campaign work is important work.  However, based on his decision to stop that work prior to departing the country, and the fact that the role was an occasional one and not related to his career or profession, the tribunal finds that he would be extremely unlikely to undertake that work on his return. 

2. This is consistent with his actions as found by the tribunal in the period after he stopped working in these volunteer capacities prior to coming to Australia. 

3. The evidence is that the applicant has received no direct or indirect ongoing threats from terrorist groups and has not been the subject of any overt interest by any terrorist group since June 2012, even though he remained in the country until March 2013. 

4. The country information does not support the applicant’s assertion that the mere fact of his being outside Pakistan and living in Australia increases his risk of being identified or perceived as a person opposed to the Taliban because he has adopted westernised views.    

5. It is noted that it has been more than four years since the applicant last undertook any voluntary teaching or polio campaign work, and that the work that he did do was relatively low frequency and intermittent over a two year period.  On his evidence, he was only working for two or three weekends a year on the polio program, and during college holidays when teaching.  He was not a paid employee of the school or polio program.  He has not been sought nor his family targeted since shortly after he ceased doing the work or after the attack on his colleagues, regardless of when that attack happened.  The tribunal finds that the evidence suggests that after that attack, he did no further polio work but worked solely at [a] College.   The tribunal particularly notes and places considerable weight on the fact that the applicant continued to reside in the area and to travel to and from work right up until he left the country (which is some 9 months later if the event took place in June 2012) without further threats or reprisals from the Taliban.  He gave evidence that he lived in a [village] of less than [number persons].  The tribunal considers that he (or his family after he left) would have been readily located and targeted if he was still the subject of interest or if there was in fact a real ongoing risk to his safety. 

6. In Appellant S395/2002 v MIMA (2003) 216 CLR 473 the High Court found that a tribunal member might fall into jurisdictional error if there was a failure to consider whether the need to act ‘discreetly’ to avoid a threat of serious harm constituted persecution. In that case, the issue was about whether homosexuals in Bangladesh were required to live discreetly to avoid persecution. In this case, the question to be asked is whether the need for the applicant to avoid volunteer work in his home area to avoid the threat of serious harm itself constitutes persecution.

7. The tribunal accepts that the applicant’s evidence has been consistently that he stopped doing polio work (in particular) because of the attack on his colleagues and his fear of being killed.  The tribunal accepts that his desire to avoid being targeted because of that work (particularly polio work) was a factor in his decision to cease that work.    

8. The tribunal does not accept that the applicant is a person who would be identified or perceived as being a member of any of the three particular social groups he identified if he were to return to Pakistan and if he avoided volunteer work in the future.  However, based on his past history of persecution and the ongoing attacks on and threats of violence to polio workers and teachers in Khyber Pakhtunkhwa, the tribunal is satisfied that if he were to undertake volunteer work as a teacher or polio worker in [a] village in future, he would face a real chance of serious harm due to the risk of being attacked whilst doing that work.    Based on the principle as noted in S395, the tribunal finds that although the applicant would be unlikely to undertake polio campaign work or teaching in the future, his decision to avoid that work would be at least partially due to the threat of serious harm if he were to continue.   He would be required to modify his behaviour to avoid persecution as he did before coming to Australia – and this implies and supports the existence of a real chance of harm to be avoided (and in fact as supported by the general and specific country information.)  The tribunal finds that the applicant faces a real chance of serious harm in his home area if he was to return to Pakistan due to his potential work as a volunteer polio campaign worker and teacher in and around [Village 1].

9. The tribunal finds that the applicant’s fear of being targeted and killed by extremists due to his being perceived as a person who has western views is not well founded.  

10. The applicant left Pakistan with a valid passport.  It has now expired  (January 2016.) When asked at hearing what steps he had taken to renew his passport, his answers were vague and unclear.  He seemed to be suggesting that he had travelled to the Pakistan office of immigration in Sydney, and he was still waiting.  He said that they told him they would investigate his case because of his protection claims.  Without a passport, the applicant’s return would necessarily be via travel documents, which might bring more attention to his return than were he to return on a valid passport  Nonetheless, there is no evidence before the tribunal or submissions made by the applicant which suggest that he is unable to obtain a fresh passport whilst in Australia.   He has suggested no legal obstruction to returning to his country of citizenship and has expressed no fear of harm due to his returning as a failed asylum seeker. 

11. As noted above, country information suggests that Pakistani citizens are frequent travellers for study, work or to visit family overseas.   The country information suggests that there are no credible reports of failed asylum seekers or persons returning from a western country either with or without a passport being at risk of targeted detention, violence or retribution on returning to Pakistan, from either the Taliban or agents within the Government of Pakistan.  Even though the applicant did not actively raise or pursue this claim during the hearing, the Tribunal has considered that it was potentially raised on the evidence given by the applicant about his passport status.  The tribunal has considered his circumstances against the available country information to assess whether he might be at risk of such persecution.  In relation to a risk of persecution as a failed asylum seeker, the tribunal finds that there is no credible country information which suggests any such risk.  

    Relocation

12. The tribunal considered whether the risk of harm to the applicant persists throughout Pakistan or whether he could reasonably relocate to avoid the risk of harm.  It was put to him at hearing that he had lived in large urban areas independently whilst he was studying, including Abbottabad and Lahore, and that he did not face harm whilst he did so.  The applicant agreed with that proposition but argued that there is a generally unsafe security situation throughout Pakistan which means that his life could be taken at any moment, no matter where he was. He was clearly referring to a pervading general security situation which is unstable and not a fear of being specifically targeted or of persecution in those larger urban areas. The applicant has also lived independently in Australia since 2013 and has extensive experience of living outside his rural home area and being self-sufficient. 

13. According to the DFAT Country Information Report, Pakistan 15 January 2015, the general content of which was discussed with the applicant at hearing,  because of Pakistan’s size and diversity, there are viable relocation options for members of most ethnic and religious minorities:  internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from non-state instigated discrimination or violence.   Many large urban areas such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas. 

14. The tribunal finds that the applicant does not have a profile as a polio worker, teacher or as a person who supports westernised views because of his voluntary and occasional work prior to 2013 in [Village 1], or because of his time in Australia.  The tribunal has found however he does face a real chance of persecution if he was to [return] and undertake teaching and polio campaign work in [the] area in the future.  The tribunal is satisfied (as expressed by the applicant)  that his reason for leaving the country was to marry and establish a new life in the generally safer security environment in Australia - not to flee persecution.  The tribunal notes the length of time since he last worked in his school or polio program, and his other work experience prior to leaving  Pakistan.  He has been outside the country for nearly 4 years, and no attempts to find or threaten him because of his historical involvement in teaching or polio campaigns have been made in that time.    The applicant conceded at hearing that he was unlikely to be specifically targeted in large urban areas and could potentially live there, without risk of persecution.  His submission was that a general risk of harm persists against citizens of Pakistan throughout the country, including in large urban areas and ‘there is no safety in Pakistan’. 

15. The tribunal considered the security situation in Pakistan generally.  It is acknowledged that the security situation in Pakistan is unsettled and extremist activity varies across the country.  As noted above, the risk of terrorist attack could not be classified as remote throughout Pakistan. 

16. Nonetheless, the tribunal is satisfied that, were the applicant to relocate to any of the larger urban areas including Lahore, Abbottabad or Islamabad, the general country information reflects that conditions of living would be such that a relatively normal life could be led in the context of the country’s overall security situation.  The tribunal is satisfied that his particular circumstances (including his past work as a polio worker and teacher)  are not such that he would face any particular risk of harm from or being targeted by extremists outside his home area and that even taking into account the generalised violence,  it is reasonable for him to locate within Pakistan to avoid the risks to him in his home area.  The applicant does not have a profile or other characteristic which would bring him to the attention of extremists in a large urban environment. There is no reason to suspect that he is at risk of being targeted by the Taliban, other extremist groups or any other agent (state or otherwise) in Pakistan outside his home area. 

17. Given the applicant’s background, his work experience, his educational qualifications and his practical experience of living away from his home town, the tribunal considers that the applicant could reasonably relocate to a larger urban area such as Abbottabad or Lahore, where he has lived in the past, and avoid the risk of persecution he faces in [Village 1] and its’ environs.  The tribunal finds that he would be of no ongoing interest to extremists who have not sought him over the past nearly four years if he were to reside in a larger urban area such as Lahore or Abbottabad. Further, the security situation is less volatile in the larger urban areas and there is a greater level of anonymity as well as a higher level of state protection.   The tribunal finds that there would be no risk of persecution based on his existing profile if the applicant were to relocate to a larger urban area.  The applicant has only undertaken voluntary teaching and polio work in [Village 1] where he became involved because he was a [student].  The tribunal considers it extremely unlikely that the applicant would continue that work if he was to relocate away from [the] village, not because of a fear of harm in those areas, but because of a lack of any motivation or sense of commitment expressed by the applicant. Nonetheless, the tribunal also finds that any risk to the applicant of persecution if he was to undertake occasional volunteer teaching or polio campaign work in a larger urban environment would be remote.   The applicant has family in Lahore, though he reported that his grandparents had now passed on.  His uncle and uncle’s family still reside there. The applicant would not be without any family support if he were to relocate to Lahore. The tribunal finds that the applicant could reasonably and safely relocate within Pakistan.

18. Consequently, the tribunal finds that the applicant does not have a well founded fear of persecution in Pakistan as a consequence of his membership of the particular social groups he raised, because he could safely and reasonably relocate within Pakistan to avoid the persecution he fears.

19. The tribunal has also found that the applicant does not have a well founded fear of persecution due to his being a member of the particular social group of persons who are failed asylum seekers.  He holds a genuine subjective fear of falling victim to random or generalised violence.   The tribunal has found that the applicant does not have a well founded fear of being killed by [Mr C] as retribution for his being involved in a legitimate and sanctioned engagement (or because the engagement was ended).  The tribunal has additionally found that the essential and significant reason for the harm he fears from [Mr C] is not for a convention related reason.

20. The tribunal finds that the applicant does not meet the criteria for protection under s.36(2)(a) of the Act.

    Complementary Protection

    Claim to fear harm from his ex-fiancé’s uncle.

21. The evidence supporting this claim is discussed above. 

22. The tribunal has found above in paragraphs 25 to 40 that the applicant does not have a well founded fear of harm from [Mr C] due to the engagement to [Ms A] or due to the ending of that engagement.  For the reasons discussed above, the tribunal finds that there are not substantial grounds for believing that if the applicant returns to Pakistan, there is a real risk that he will suffer significant harm (the applicant claims to fear being arbitrarily deprived of his life) due to his former engagement to [Ms A].

    Claim to fear harm from extremists.  

23. With regard to his claims to fear being harmed because of his history as a teacher, as a polio worker or as a person perceived to have westernised views - in light of the tribunal’s earlier findings that he could safely relocate within Pakistan, the tribunal finds that there are not substantial grounds for believing that there is a real risk that he will suffer significant harm due to those factors if he was to return to Pakistan.  The tribunal also finds that there are not substantial grounds for believing that there is a real risk that he will suffer significant harm if he returns to Pakistan as a failed asylum seeker.

24. As noted above, the applicant raised the general security situation in Pakistan and argued that there is no safety for him anywhere in Pakistan. He noted and the tribunal accepts that bombings, shootings and random acts of terrorism are not uncommon in Pakistan, even after recent reductions in general acts of terrorism after operation Zarb-e-Zarb and other military operations since 2014. The tribunal finds (as was conceded by the applicant at hearing) that there has been a reduction in acts of extremist violence and an improvement in the overall security situation over recent years, as reported in the general country information, but that nonetheless, a general risk of falling victim to an act of violence is not remote in Pakistan. When describing his concerns about the security situation in Pakistan, the applicant was not referring to himself being a target specifically but was describing risks to the population of Pakistan generally. As noted above, section 36(2B) of the Act provides that where the real risk is one faced by the population of the country generally and not by the applicant personally, it is taken not to be a real risk for the purposes of considering the complementary protection provisions. In this case, the tribunal finds that there is not a real risk of the applicant suffering significant harm due to the general security situation in Pakistan.

25. Whilst the tribunal is satisfied that the applicant holds a reasonable fear of being harmed by random acts of terrorist violence throughout Pakistan if he returns, that risk is one which is faced by the population of the country generally and not by him personally. The applicant does not meet the criteria for the grant of a protection visa in section 36(2)(aa).

    CONCLUSION

26. 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).

100. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

101. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

102. 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

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

A Grant
Member