1600907 (Refugee)
[2017] AATA 2933
•14 November 2017
1600907 (Refugee) [2017] AATA 2933 (14 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1600907
COUNTRY OF REFERENCE: Pakistan
MEMBER:C. Packer
DATE:14 November 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 November 2017 at 6:31pm
CATCHWORDS
Refugee – Protection visa – Pakistan – Ethnicity – Pashtun – Religion – Liberal Sunni Muslim – Political opinion actual/imputed – Anti-Taliban – Anti-government – Social group – Young Sunni Muslim males from Swat – Failed asylum seeker from West – Credibility IssuesLEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2Any 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] February 2014, as a holder of a Student visa, and had travelled on a Pakistan passport issued [in] 2013 and valid to [2018].
[In] May 2014 the applicant applied for a Protection (Class XA) visa.
[In] July 2015 and [December] 2015 the applicant attended interviews with a delegate of the Minister for Immigration.
[In] January 2016 the delegate refused the application under s.65 of the Migration Act.
On 27 January 2016 the applicant applied for review of the delegate’s decision.
On 27 June 2017 the applicant attended a Tribunal hearing.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on two main elements: his activities in Swat district that were against the Taliban; and the adverse attention of the Pakistan authorities arising from his Taliban connections. Because of these past activities and adverse attention 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, and the Pakistan army’s military operation there, is largely consistent with country information. However, my great concerns with significant elements of the applicant’s narrative and evidence lead me to find he has fabricated significant claims and is not a credible witness. I find that he has not in the past and will not in the future in Pakistan come to the adverse attention of the Taliban, militants, the Pakistan army or authorities for the reasons he has claimed. My assessment follows.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application provided some basic background information. He claims he was born and raised in [Village 1], Swat, Khyber Pakhtunkhwa province. He is a Pashtun and a Muslim Sunni. He has parents [and siblings] in Pakistan and a brother in [another country]. His father is a landlord and [in another occupation]. The applicant completed: secondary schooling in [Village 2] from May [year] to July [year]; [a] course in Mingora from July [year] to January [year]; and a [course] in Mingora from February to August 2013. He departed Pakistan from Islamabad airport [in] February 2014. At the hearing the applicant discussed how his family remain living in the family home in Swat.
Country information[1] shows that Pakistan is the sixth most populous country in the world with a population estimated to be around 193 million. Pakistan’s population is young, fast-growing, and rapidly urbanising. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). The FATA is comprised of 7 tribal agencies: Bajaur; Khyber; Kurram; Orakzai; Mohmand; North Waziristan and South Waziristan. Approximately half the population of Pakistan lives in Punjab province, with around 27 per cent living in Sindh, 13 per cent in Khyber Pakhtunkhwa and six per cent in Balochistan. Less than five per cent of the population lives in the FATA and the Northern Areas of Pakistan collectively. Pakistan is ethnically and linguistically diverse with the largest linguistic groups being Punjabis (45%), Pashtuns (15%), Sindhis (14%), Seraikis (8%) and Mohajir (7.5%).
[1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, [ of claims
The applicant claims to fear persecution in Pakistan from both the Taliban and the Pakistan Army. His key claims as summarised are:
·He lived in the family home in [Village 1], Swat, Khyber Pakhtunkhwa province.
·In late 2008 the applicant’s brother [was] temporarily staying in Swat, was abducted by the Taliban as they wanted him to provide [some service] to talibs. Just as he was abducted, the army fired on the talibs, and the brother escaped in the commotion and returned to Karachi where he had studied [a course]. The next morning the Taliban beat the applicant and father and threatened to take the applicant unless the brother returned.
·The Taliban became enemies of the family and later took over an uncle’s home in the village. The applicant and his father confronted the Taliban about this.
·In April 2009 the Taliban abducted and mistreated the applicant and asked him to fight but when he refused they allowed him to perform domestic services in their compounds. Many times he tried to escape and was beaten.
·[In] July 2009 during Operation Rah-e-Rast the Army captured the Taliban compound and arrested talibs and the applicant. The army tortured him and he declared his innocence. He told them about a Taliban compound which the army attacked and killed Taliban Commander Mustafa. He informed on other talibs and pointed out their houses. He was released in August 2009 after a Village Defence Committee leader and Awami National Party (ANP) members intervened on his behalf.
·In early December 2011 the army arrested and questioned the applicant for [a number of] days until the father got him released.
·A friend of his had been killed by the army.
·In early May 2012 he joined a village rally that was protesting against the army’s cruel treatment of innocent people. The army arrested many protesters.
·The applicant was sent to Karachi to an uncle’s house for safety. But he returned to his village because in Karachi [in] June 2012 a talib (whose brother he had informed on) from his home area saw him in the market.
·After his return to the village, from [date to date] January 2013 the army arrested, detained, questioned and tortured him. He was released on condition he report every fortnight. The army kept questioning him in 2013.
·After release, he lived at home and studied in nearby Mingora. Some nights he did night watch duty.
·He departed Pakistan from Islamabad airport [in] February 2014 and breached the army’s reporting conditions when he departed Pakistan.
·After he came to Australia the army beat the father and demanded the applicant return to Pakistan.
The applicant claims he has a well-founded fear of returning to Pakistan arising from his:
· Religion: He fears the Taliban, Sunni extremist groups and agents will harm him because he is a liberal, Sunni Muslim.
· Political opinion: He fears the Taliban, Sunni extremist groups and agents will harm him because of his political opinion (actual or imputed) as an anti-Taliban and anti-Sunni extremist man who had:
- been an actual and perceived informer to the Pakistan army
- been a member of the Village Defence Committee
- a profile as a student studying and seeking asylum in a Western country
· Political opinion: He fears the Pakistan authorities will harm him because of his political opinion (actual or imputed) against the Pakistan authorities, on account of being discovered by the army in Taliban custody and the army’s subsequent mistreatment of him.
- Membership of a particular social group, of: young Pashtun Sunni Muslim males from Swat; students in Khyber Pakhtunkhwa province; returnees from a Western country; failed asylum seekers imputed with a Western lifestyle.
Evidence
The evidence before the Tribunal includes the following material:
·The applicant’s Protection visa application form lodged [in] May 2014, which includes a written statement dated [in] May 2014 that sets out reasons for seeking protection in Australia
·Passport pages
·Identity documents: National ID card, birth certificate, family registration certificate
·Psychology report [of] [August] 2015, submission of [August] 2015, statements of [January] 2015 and [May] 2014
·The Protection visa decision record (‘delegate’s decision’) dated [in] January 2016, which is the subject of this review
·The application for review, which has attached to it a copy of the delegate’s decision
·Statement of [June] 2017
·Submissions of [June], [July] and [October] 2017
·Psychology reports [of] [June] 2017 and [July] 2017
The applicant appeared before the Tribunal to give evidence and present arguments, on 27 June 2017. The hearing was conducted with the assistance of an accredited interpreter in the Pashto and English languages. At the start of the hearing I discussed the issue of the interpreter and applicant having different dialects. It was explained to me that some words used in the dialects can differ. Nevertheless, the applicant said he understood the interpreter and wanted to continue the hearing. During the hearing the applicant and interpreter at times appeared to converse and when I asked why, the interpreter said he was merely seeking clarification from the applicant on some aspects of what the applicant was saying. The applicant ostensibly understood English and a few times he corrected the interpreter. When I asked, both the applicant and interpreter said they understood each other. At the end of the hearing the applicant did not indicate he had any concerns with the interpreting, and I had the sense that the interpreting had been effective.
At the hearing I had before me Psychologist reports dated [in] August 2015 and [in] June 2017 (discussed below) 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. During the hearing he appeared to fully understand questions and 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 Department had not issued a certificate under s438 of the Act.
Country information
I have carefully considered the submissions and country information provided and cited by the applicant and his representatives. While some past Tribunal decisions had also been highlighted as being relevant to the current review and I have considered them, I note that they were based on the evidence before those differently constituted Tribunals.
The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, was published after the hearing. In a letter dated 20 October 2017 the Tribunal brought the applicant’s attention to the report as well as extracting parts of the report and indicating they may be of particular interest. The letter also brought to his attention other reports and articles concerning Swat and the Pakistan military operation Rah-e-Rast as listed below. A submission dated [October] 2017 responded with additional arguments.
Country information concerning Swat during the insurgency and the Operation Rah-e-Rast includes:
·IRIN article, Timeline on Swat Valley turbulence, 11 February 2009, [
·TheGuardian article, Taliban and Pakistan officials agree permanent ceasefire in Swat valley, 22 February 2009, [ article, Pakistani Forces Retake Swat Valley's Largest City From Taliban, 31 May 2009, [ San Diego Union-Tribune article, Pakistan says it's wrapping up Swat campaign, 20 June 2009, [ article, Another five militants killed in Dir, Swat: ISPR, 1 July 2009, [ article, Police resume patrols in urban areas of Swat, 2 July 2009, [ article, Swat and Buner cleared: govt, 9 July 2009, [ News article, Pakistan's displaced begin return, 13 July 2009, [ article, Thirteen militants die in fresh Swat clashes, 16 July 2009, [ article, Schooling, food security worry returnees, 23 July 2009, [ article, Boys trained for suicide bombing arrested, 27 July 2009, [ Nation article, Teenage bombers are rescued from Taliban suicide training camps: report, 27 July 2009, [ Nation article, 200 children bombers rescued, 28 July 2009, [ UNESCO Education under Attack 2010 – Pakistan, 10 February 2010, [ Express Tribune article, Rehabilitating militants: The road to redemption, 6 June 2011, [ article, Women in national security: how Feriha Peracha de-radicalised nearly 200 potential terrorists, 5 April 2017, [>
Reports concerning conditions in Swat in 2017 include:
·PakistanToday article, Swat Valley back on its way to becoming ‘the Switzerland of Pakistan’, 21 February 2017, [ and Gulf News article, Ski tourism re-emerges in Malam Jabba as security improves, 22 February 2017, [ Forward article, Tourism booms with improved security in Khyber Pakhtunkhwa, 12 July 2017, [ Pakistan article, In Swat, a tourism boom as security situation improves, 16 September 2017, [ 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.
Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept that he has the claimed identity: [applicant name] born [in date]. I accept he is a Sunni Muslim and a Pashtun. I accept he was born and raised in [Village 1], Swat, Khyber Pakhtunkhwa province. I accept he has parents [and siblings] in Pakistan and a brother in [another country].
The father is affluent
The applicant has described his father as a land owner and businessman. At the hearing his evidence was that a lot of the father’s land had been compulsorily acquired by the military to expand the nearby airport and his evidence became vague when I pointed out that the military would not have acquired the father’s property in town. As well, his evidence about the operation of [a] store in town is inconsistent- at the hearing when this was discussed he said the father was just the landlord of the building containing the [store], but this oral evidence is contradicted by his statement of [May] 2014 in which he referred to “our family [store]” where he said his brother, a student [in an occupation], worked for a time to get experience. In his statement [of] January 2015 he again referred to “[our] store”. In sum, I accept that some of the father’s rural land had been compulsorily acquired by the authorities in order to build a military compound and expand the nearby airport as he claims, but do not accept that the father’s urban property distant from this development was similarly acquired. I find that the family owned and operated a [store] in Swat. The father had been able to afford to arrange the brother’s study in Karachi as a [course] student and the applicant’s travel to Australia as a student, and I find that the applicant’s family are affluent.
His mental health
The applicant’s mental health is an issue in his protection claims. I have therefore considered his mental health condition now and in the reasonably foreseeable future. [The psychologist] of [a clinic] has provided three reports concerning the applicant. The key features of the report dated [in] August 2015 are:
·The applicant had been referred by a doctor for treatment of significant anxiety.
·The applicant has told the psychologist details about his home life and events in the years before he departed Pakistan.
·In Australia he was unable to continue his studies due to his mental health problems.
·He is a practising Muslim and gets comfort from attending the Mosque and has friends in the local Pashtun community.
·He reported great sadness when thinking of so many innocent people killed, and at being separated from his family who remain in danger, and this contributes significantly to his depression.
·He reported flashbacks of torture at the hands of the Taliban and witness to a friend’s [murder]. This remains the foremost focus of his trauma-based memories and reactions.
·He was diagnosed with PTSD and after 10 sessions he is “now stable and able to engage in normal activities with relative ease (shopping, attending mosque, social outings)”.
·Due to the applicant’s experiences with the Army, he is fearful of returning not just to the village but to Pakistan, and believes suspicions will remain. This in turn will risk him returning to “full blown PTSD”.
·The psychologist has the opinion that in Pakistan it is not possible for the applicant to have a combination of doctor and psychologist care and current environment, and so he will not avoid returning to severe PTSD and post-traumatic depression.
The key features of the report dated [in] June 2017 are:
·The applicant had been treated since October 2014 and attended regularly for about 38 appointments. The sessions ran without an interpreter and so initially there were misunderstandings in facts and communications. He initially presented with severe Post Traumatic Stress Disorder (PTSD) and therapy was slow initially. By August 2015 he had stabilised and was able to engage in normal activities with ease. The physical symptoms of trauma had largely abated.
·Treatment to date has been cognitive-behavioural in approach helping him adapt to life in Australia, as well as supportive and managing ongoing anxiety.
·With the approach of the Tribunal hearing his traumatic symptoms returned “with an alarming intensity”. His PTSD is again diagnosable. He is re-experiencing an intense fear of returning to Pakistan, with sleeplessness, constant rumination about past events, and fear it could happen again- causing “multiple physical symptoms, disassociation, and is unable to perform normal activities such as working”.
·At times he has been prescribed [medications] and may be prescribed [another medication].
·A discussion about how a return to Pakistan would affect the applicant’s mental health ends the report. The discussion highlighted the applicant’s stated fears: “multiple fears of potential re-traumatizing events if he returned”, and “he reports fears around ongoing target killings in his village, participation in night duties (and feeling defenceless and vulnerable to attack or re-capture)”. As well he fears that anywhere in Pakistan his past would follow him, perpetuating a lack of safety.
·The report concludes that, variously:
oIf the applicant returns to Pakistan ‘he would require significant psychiatric intervention’.
oHis mental health would deteriorate ‘if he was not able to receive adequate treatment back in Pakistan’.
o‘In fact, I would state rather that no amount of mental health treatment could overcome the devastating effects of returning to the traumatizing environment that he came from’.
The key features of the report dated [in] July 2017 are:
·The psychologist was inconsistent in saying in the earlier report that the applicant would require significant psychiatric intervention, and then later saying no amount of mental health treatment could overcome his trauma.
·The applicant arrived in Australia as a traumatised person due to torture and persecution.
·He has a genuine fear of persecution if he returns to Pakistan, evidenced by the severe recurrence of symptoms ‘at the mere possibility of returning’.
·‘No mental health intervention can treat PTSD if the person remains exposed to the traumatising events’. If he returned there is no treatment option available that would help him whilst he remained in fear of his life.
·‘Whilst the objective nature of his fear is outside my domain, there can be no doubt of [his] subjective state of mind regarding his fear of further persecution if he returns’.
As I discussed at the hearing, the applicant had self-reported his past circumstances in Pakistan to his mental health expert, but I do not take what he told the expert as determinative of his credibility and the truthfulness of his narrative. Indeed, the expert subsequently acknowledged that the objective nature of the applicant’s fear is ‘outside my domain’.
The submission of [June] 2017 discussed how the delegate found several inconsistencies between the report dated [in] August 2015 and the applicant’s evidence. The representative submitted these arose because the expert and applicant did not use an interpreter during their appointments and the expert’s focus is on the applicant’s mental health rather than the factual details of his background and experiences. But as I also discussed at the hearing, I do not consider any such discrepancies are determinative of the truthfulness of his narrative and his credibility.
At the hearing the applicant appeared well-presented, attentive, focussed and articulate. He discussed events in his narrative and remembered dates such as when he undertook courses in 2012-2013. I did not consider that his mental health condition prevented or hindered him from attending the hearing and talking about his story.
In sum, I have given appropriate weight to the expert’s reports. Based on the reports and the applicant’s evidence I accept that the applicant has some psychological problems that include PTSD. I accept that he has received ongoing treatment from October 2014 with good outcomes by August 2015 as by then the expert reported he had stabilised and was able to engage in normal activities with ease. I accept that over the past three years the applicant has had significant treatment, but despite this treatment, with the approach of the Tribunal hearing the expert reported that his symptoms returned intensely. The evidence strongly suggests and I accept that his psychological problems are attributable to depression, adapting to life in Australia, concern for his family, his unresolved migration status, and past life experiences in Swat- although as later discussed I do not accept his psychological problems including PTSD are attributable to the particular occurrences he claims. A submission produced country information[2] about the high level of mental health issues in Swat that revealed PTSD has been assessed as particularly prevalent amongst young people due to the past high levels of violence and insurgency.
[2] As discussed in the submission of 21 June 2017 at 4.4, having cited a report by Psychologist Md Tahir Khalily, Mental health problems in Pakistani society as a consequence of violence and trauma: a case for better integration of care, 7 October 2011, [>
As well, I have considered the expert’s opinion about the effects on the applicant should he return to Pakistan and I note that particular emphasis is given to the applicant’s stated fear of being harmed and that he would feel unsafe in Pakistan:
·He is re-experiencing an intense fear of returning to Pakistan, with sleeplessness, constant rumination about past events, and fear it could happen again. ([June] 2017)
·He has “multiple fears of potential re-traumatizing events if he returned”.
·He has a genuine fear of persecution if he returns to Pakistan, evidenced by the severe recurrence of symptoms ‘at the mere possibility of returning’. ([July] 2017)
·If he returned there is no treatment option available that would help him whilst he remained in fear of his life.
·‘Whilst the objective nature of his fear is outside my domain, there can be no doubt of [his] subjective state of mind regarding his fear of further persecution if he returns’.
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 made his first written statement, at the delegate’s interviews 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.
He is abducted and held by the Taliban
Country information shows that in February 2009 the Taliban and Pakistan government officials agreed to a permanent ceasefire in Swat. As a result the Taliban then largely took control of Swat. But when the ceasefire quickly broke down the military Operation Rah-e-Rast (the Operation) was launched in May 2009. The Pakistan military swept through Swat as most residents fled and by June/July had largely cleared Swat of militants other than some pockets of militants who had gone into hiding.
In the applicant’s narrative in mid-2009 when aged [age] he had been forcibly taken by the Taliban to a Taliban compound in [Village 1] that was close to [Village 2]. He was held against his will until the Pakistan army captured the compound [in] July 2009. His account of forcible recruitment by the militants is consistent with country information that shows many boys in Swat had been trained by the Taliban to be fighters and suicide bombers. However, I have strong concerns with his narrative and evidence about his claimed experience. It is difficult to accept that having taken the applicant in order to train him to be a fighter, the Taliban then said nothing to him and withheld food and water for three days as he claimed at the hearing. Regardless, I do not accept his story that when he told the talibs he was too young to use a gun and he refused to be trained, the talibs then allowed him to negotiate to just do ordinary tasks such as cleaning and cooking. When I put my concerns to the applicant he explained that a local talib with a softer personality persuaded the other talibs on his behalf. However, as I discussed at the hearing general country information about the insurgency in Swat showed that Maulana Fazlullah and the Taliban had been ruthless in their efforts to Talibanise the area. The Taliban had been violent against adults and children who refused to act in accordance with their directives and boys as young as 11 had been indoctrinated and trained to be fighters/ suicide bombers. As well, in his narrative he was forcibly recruited at the time when the Taliban ostensibly had an urgent need for fighters to combat the army as they swept through Swat. In this light I do not find credible that a kind-hearted talib led to the applicant successfully refusing to commit to the Taliban cause and enabled him to negotiate to become a domestic worker about the compound.
He is captured by the Pakistan army [in] July 2009 and mistreated
In the applicant’s narrative the Pakistan army captured the Taliban compound [in] July 2009. However, as I pointed out at the hearing, I have strong concerns with his claim because country information shows that the Operation had effectively ended by mid-July when displaced residents started to return. My reference to country information encompassed a number of consistent reports and media articles[3] that showed:
·The main town of Mingora (just south of the airport and [Village 1] and the other side of a river) had been a primary army objective and had been encircled and largely cleared of Taliban by the end of May 2009.
·By 20 June 2009 the military had announced it could wrap up the main phase of its anti-Taliban offensive in the Swat Valley within 10 days as some of the final strongholds were being cleared and there were only pockets of resistance left.
·By the end of June it was reported most of the valley had been secured and police had resumed patrols in urban areas of Swat.
·By early to mid-July displaced residents had begun to return.
·On 27 July 2009 the army announced that during the Operation it had rescued many youth from Taliban training camps.
[3] See Country information above
The submission of 31 October 2017 argued the reports from national publications of Pakistan would have been in favour of the Pakistan army and the Operation and would have promoted the army’s successes and so cannot be relied upon. However, the reports and articles I have considered are from a range of sources, both national and international. While much of the news of the progress of the Operation had been provided by military and intelligence figures, the reported progress was at times repeated by international sources and the reported progress was consistent with other events such as the reported return of evacuated residents. In sum, I find the reports and articles to be credible and have considered but do not accept the submission’s argument that the reports and articles cannot be relied upon.
At the hearing the applicant responded with an elaborate explanation that the army’s operations were conducted by road from the south up to Mingora, and by air in the far [north], and at the final stages of the Operation the army ended up at [Village 1] from both south and north. But as I pointed out, his evidence that the Taliban compound was in [Village 1] and close to [two other villages], meant that the compound was not far from [the] airport and the airport would have been a primary target of the military from the start of the Operation. The applicant replied that the Taliban had encircled the airport and the army had not brought their tanks by sealed roads but over paddocks. But as I pointed out, the map I had shown him showed roads in the area and also on the map he had drawn earlier during the hearing he drew roads where the compound was located. In sum, I reject the applicant’s explanations about the military concluding the Operation at [Village 1] in late July. I do not find credible the applicant’s explanations that the army failed to secure the airport at the commencement of the Operation and failed to use the roads that were easily accessible in the area. The compound which the applicant drew next to a road would have been easily located in the early days of the Operation when the army secured the airport and encircled Mingora in May. My considerations are supported by reports that show the more remote and isolated Taliban compound in the mountains [was] captured by the army well before the end of July.
The submission of [October] 2017 argued the reports showed the army had been continuing their efforts to take over terrorist strongholds in very late July 2009. I acknowledge the reports show that in July the army continued to search for hiding militants and continued to secure remaining pockets of resistance in Swat. But in light of the foregoing I disbelieve the army overlooked an ostensibly easily locatable Taliban compound in [Village 1] and close to [two other villages] and not far from the important [airport]. The reports do not support the applicant’s explanation of the military in the Operation only ending up at [Village 1] from both south and north at the end of July.
In sum, my strong concerns with the applicant’s narrative and evidence about being taken by the Taliban to a Taliban compound in [Village 1] and remaining there as a domestic worker until the Pakistan army captured the compound [in] July 2009 lead me to find he has concocted the story for the purposes of his refugee matter. I do not accept any part of his narrative that he: had been abducted by the Taliban in mid-2009; was ill-treated while held in a compound; worked as a domestic in the compound; was arrested by the army when it captured the compound at the end of July; pointed out talibs and their houses to the army.
Other elements of the applicant’s narrative reinforce my findings that he has concocted the story about being forcibly recruited by the Taliban and then coming to the adverse attention of the Pakistan army for the purposes of his refugee matter as I now discuss.
The army’s adverse interest
In his narrative after the Taliban compound was captured and the youth were rescued by the army, he was then severely beat and interrogated him for up to 3 weeks before village elders got his release. He claims the army would never have released him as they believed he was a talib. The submission of 31 October 2017 argues this narrative is credible because: there are authoritative reports of the army’s detention and mistreatment of people suspected of Taliban involvement; the applicant had not undergone the same training as the other boys in his compound and so would not have displayed the same behaviour or characteristics as those who had intensive training to be suicide bombers and this is a reasonable explanation as to why he was detained on suspicion of being a talib; there are no definitive statistics on the number of boys rescued and sent to rehabilitation centres.
However, while I acknowledge the credible reports of army brutality against suspected militants held prisoner, in his narrative I do not accept the applicant would have been so suspected by the army and then interrogated and brutalised for some weeks, merely because he was located at a Taliban compound. Firstly, he was very young. He had been a student at school during the insurgency and at the time of the Operation was only a boy of [age]. Secondly, a newspaper article dated 27 July 2009[4] shows that the army was well aware of the circumstances of such boys taken by the Taliban and trained in camps, and that the army had reportedly been sympathetic to their plight. When I pointed this out at the hearing, the applicant responded that this had happened during the Operation and many soldiers had been killed which made the army angry. Nonetheless, the newspaper article shows that the Pakistan military had by 27 July willingly recognised that boys taken and trained by the Taliban were not talibs and not punishable and might need to be rehabilitated. There are also later reports[5] that discuss the army’s rescue of youth forcibly taken and trained by the Taliban and how some had undergone rehabilitation, albeit the numbers of rescued youth and the numbers sent for rehabilitation vary between reports. Thirdly, I do not accept the argument that the applicant’s lack of training would have increased the army’s suspicions that he was a talib. Rather, in his narrative he had only been in the compound for a few months and his claimed refusal to be trained in weapons leading him to have scant militancy training, would reasonably have lessened suspicions that he was a talib. As well, his refusal to be indoctrinated in Taliban ideology and ostensible lack of support for the Taliban cause, even to the claimed extent of repeatedly trying to escape, would reasonably have lessened suspicions that he was a talib.
[4] At the hearing I discussed The Nation article, Teenage bombers are rescued from Taliban suicide training camps: report, 27 July 2009. Other articles also discuss the military’s rehabilitation of rescued boys.
[5] See Evidence above
In sum, in the applicant’s narrative he showed scant characteristics of being a talib, or of a talib-in-training, or of a boy who had volunteered to assist the Taliban. On being rescued he would have presented as a boy separated from his family and held against his will who exhibited no support or enthusiasm for the insurgency and no traits of a talib. In light of country information that the Pakistan military recognised that such youth rescued from Taliban compounds were not talibs, I find his narrative and evidence about the army’s long period of brutalising and interrogation after the rescue to be unconvincing.
In his narrative he was re-arrested and interrogated by the army in December 2011 and January 2013, each time for a lengthy period of a couple of weeks. He claimed that when an army battalion was rotated into Swat the new commanders sought to re-interrogate every past suspect. However, as I discussed at the hearing, it is not credible that the army would have had such a strong adverse interest in him years after the Operation particularly given his young age at the time of the Operation and- in his narrative- his denial of even having been indoctrinated or trained by the Taliban. As well, when the schools reopened the young applicant had returned to being a school student in [Village 2] to complete his HSC from mid-[year] to mid-[year]. In light of his profile, his young age and return to school I disbelieve the army had strong concerns that he was a talib such that they expended resources in arresting and interrogating him in December 2011 and again in January 2013.
In his narrative he attended an anti-army protest in Mingora in early May 2012. However, as I discussed at the hearing, it is difficult to accept that he attended such an anti-army protest when in his narrative he was under suspicion by the army of being a talib and he greatly feared the army following the claimed interrogations. In his narrative he was then sent in May 2012 to his uncle in Karachi for safety, but he returned to his village because in Karachi [in] June 2012 a talib (whose brother he had informed on) from his home area saw him in the market. At the hearing when I discussed with the applicant how this occurrence was unlikely he merely responded that one day in Karachi he went to the market to get [an item] part and saw the talib. But, as I discussed, in light of general country information that Karachi is one of the world’s mega-cities with up to 27 million residents and including over seven million Pashtuns, I disbelieve the very great coincidence that within a few weeks of living in Karachi he chanced to meet a talib from Swat who knew and had a personal grudge against the applicant which forced him to return to Swat. I cannot discount the possibility that the applicant travelled to Karachi to visit the uncle and uncle’s family and perhaps the [brother] at the end of the academic year in 2012. However, my concerns with his story- about attending a protest, going to Karachi for safety but then seeing a talib and becoming fearful, and so returning home- lead me to find it is concocted. If he did travel to Karachi for a stay, I do not accept the visit was for the purposes of getting away from the army or that he then fled back home because of a talib sighting in Karachi as he claims.
In his narrative he was required to report fortnightly to the army after he had been released in January 2013. When I queried why he would be required to report in this way several years after the Operation, he speculated that perhaps someone had informed the army he had been in the protest and he had then gone to Karachi. However, he had not earlier suggested that his attendance at the protest or trip to Karachi had been noticed by the army or had caused him any difficulties, either at the time of the protest or after his claimed return from Karachi in late June 2012. I do not find it credible that four years after the Operation the applicant was then required to report regularly to the army when he had not been required to do so at earlier times and- in his narrative- had not been sent for rehabilitation in 2009 but just released by the army when important people vouched for him.
As well, after the military Operation Rah-e-Rast had concluded in 2009, in the following years the applicant lived in the family home and completed his schooling and then undertook further courses in Mingora. He said he undertook the courses as a friend said if you do these classes it is easier to go to Australia as a student. He gathered identity documents from Pakistan authorities including his computerised National Identity card (CNIC) [in] March 2012, Pakistan passport [in] September 2013 and his Birth certificate [in] November 2013. He applied for an Australian Student visa that was granted [in] January 2014. He travelled to Islamabad where he departed [in] February 2014. But as I put to the applicant, in his narrative the Taliban had not harmed him at any time in the long period from 2009 to early 2014, and in his narrative although he said the army detained him in December 2011 and January 2013 he nonetheless remained living in the village up to the time he departed. He responded that while he lived at home he had feared the Taliban and the army. However, I consider his long residence in the family home in Swat from 2009 to 2014 during which he successfully completed his schooling and then methodically prepared to come to Australia as a student by completing [short-term] courses of English language and [another course] does not support his narrative of having a great fear of living there because, as he claims, he had gained the enmity of the Taliban and the ongoing adverse interest of the Pakistan military. Also, his ability to get official documents including a passport from the Pakistan authorities between 2012 and 2013 and then travel to and depart from Islamabad without difficulty does not suggest he had any problems with the Pakistan authorities.
In light of the foregoing and my finding that the applicant is not a credible witness, I do not accept his claim that a friend of the applicant had died while being held by the army. Regardless, in his narrative the circumstances of the friend’s death did not lead to any repercussions against the applicant and the death now distant in time would not cause him any difficulties if he returns to Pakistan.
He helps to construct a madrassa in 2007
The applicant has spoken of other occurrences in Swat he and his family had been involved in. He claims that for a couple of weeks he assisted in the construction of Maulana Fazlullah’s madrassa in late 2007 or early 2008. However, when I pointed out at the hearing that the army was fighting Fazlullah and the Taliban in late 2007 he then explained he helped before the fighting started. When I then asked if that meant he had assisted in early 2007 he replied that he did not remember the exact dates. I cannot discount the possibility that with other villagers the applicant assisted in the construction of Maulana Fazlullah’s madrassa as reports show that the construction was widely supported by Swat residents at the time. But I consider that if his assistance was given before the fighting, this means he assisted before Fazlullah launched jihad against the Pakistan military in July 2007. In early 2007 the applicant was aged [age] and in light of his young age and as he said the wide support and assistance given by Swat residents to the madrassa’s construction up to 2007, I consider the assistance he gave now distant in time will not cause him any difficulties if he returns to Pakistan.
The Taliban’s enmity in late 2008
In his narrative in late 2008 the applicant’s brother who was temporarily staying in Swat, was abducted by the Taliban as they wanted him to provide medical treatment to talibs, but just as he was abducted the army fired on the talibs and the brother escaped in the commotion and returned to Karachi where he had [studied]. At the hearing the applicant added that the brother had escaped the shooting late in the evening when it was getting dark. However, when I queried when and how the brother had left the village the applicant’s evidence became vague:
·He at first explained he was at an uncle’s house when this happened and when he returned home the father said the brother had already been sent away.
·When I pointed out it would have been dangerous for the brother to travel at night, he then said he does not know when the brother had been sent away.
·When I pointed out he had earlier said the brother had been sent away before the next morning and so that meant he had to have left that night, he then said he does not know whether the brother was sent away that night or later but he did not see the brother at that time.
·But he then affirmed that the father had discussed with him what happened at the time.
The applicant’s changeable and vague account of when the brother was sent away avoided answering my query about being dangerous for the brother to travel at night. His evidence that he did not know or was unsure when the brother left contradicts his evidence that he was told everything by the father at the time, and this causes me to consider the whole occurrence has been fabricated. As well, I have strong concerns with the applicant’s story about the Taliban occupying an uncle’s house in the village and then his involvement in confronting the Taliban. He claims that as [the] son he had to be with his father all the time and help him. But as I discussed at the hearing it is difficult to accept that at that time when the Taliban were dominant in Swat and having been recently beaten by the Taliban as he claims, the parents then arranged for the applicant to accompany the father in order to confront the talibs, and particularly as the applicant was aged just [age or age] at the time. My strong concerns with the applicant’s evidence about these occurrences lead me to consider the applicant has concocted them for the purposes of his narrative about the family gaining the Taliban’s enmity in late 2008/early 2009 and I reject them. I do not accept the Taliban had an interest in the brother or abducted him, or that a fortuitous attack by the army allowed the brother to escape although without injury, or that the brother fled the village that evening/night or that the Taliban threatened and assaulted the applicant and father the next morning. Nor do I accept the applicant and father approached the Taliban concerning the Taliban’s use of an uncle’s house.
His father was a Village Defence Committee member
At the hearing the applicant claimed his father was a member of the Village Defence Committee (VDC). When I pointed out that he had previously said his father was not a member, he responded that the father was at times required to perform Nightwatch in the village and this meant the father was a member. However, this claim contradicts his statement of [January] 2015 where he said in part “My father is not in the defence committee, so it is not a big issue, but he is working with his friend who is high up in the defence committee. So the defence committee offers some protection, as they have guns.” [6] The applicant’s changeable and contradictory evidence reinforces my finding that the applicant is not a credible witness and I do not accept that the father was or perceived to be a member of the VDC.
He was obliged to do Nightwatch
[6] Paragraph 17
The applicant claims that at the time following the army’s occupation of Swat the army required every household to provide a male to do Nightwatch and so he and his father performed this duty. In his statement of [January] 2015 he stated he was obliged to do Nightwatch twice each month and he described how he was once beaten by an army officer for sitting down and then being insolent. He also said he had no problems with the Taliban during this time as they were not there. While I cannot discount the possibility that the applicant performed this duty involuntarily as a result of an army requirement at the time, I find he was not a member or perceived to be a member of the VDC and that it had not caused him or the father to come to the adverse attention of the militants at any time. Indeed, this involuntary and minor duty undertaken years ago is now distant in time and I do not accept it will cause him any difficulties if he returns to Pakistan. I also find that the harsh treatment from the officer was an isolated occurrence now distant in time and did not lead to any further difficulties for the applicant in Pakistan and will not lead to any difficulties if he returns.
Conclusion - credibility
My great concerns with significant elements of the applicant’s narrative and evidence lead me to find he is not a credible witness and that he has fabricated the story about being forcibly recruited by the Taliban and then coming to the adverse attention of the Pakistan army. I do not accept that the applicant, father, brother, uncle or any of his family came to the adverse attention of the Taliban or other militants, or gained their enmity at any time. I do not accept that the Pakistan army or Pakistan authorities arrested, interrogated, harmed or had an adverse interest in the applicant at any time. I do not accept that the applicant had been required to regularly report to the army or that his departure from Pakistan breached any conditions, or that the military had asked after him or had beaten the father and demanded the applicant return to Pakistan.
Having considered the claims and evidence, I accept his claims that:
·He lived in the family home in [Village 1], Swat, Khyber Pakhtunkhwa province.
·The applicant visited the uncle in Karachi in mid-2012.
·He lived at home and after completing his HSC he studied in nearby Mingora. Some nights he participated in night watch in the village.
·He departed Pakistan from Islamabad airport [in] February 2014 without difficulties.
Having considered the claims and evidence, I do not accept his claims that:
·In late 2008 the applicant’s brother [was] temporarily staying in Swat, was abducted by the Taliban as they wanted him to provide medical treatment to talibs. Just as he was abducted, the army fired on the talibs, and the brother escaped in the commotion and returned to Karachi where he had [studied]. The next morning the Taliban beat the applicant and father and threatened to take the applicant unless the brother returned.
·The Taliban became enemies of the family and later took over an uncle’s home in the village. The applicant and his father confronted the Taliban about this.
·In April 2009 the Taliban abducted and mistreated the applicant and asked him to fight but when he refused they allowed him to perform domestic services in their compounds. Many times he tried to escape and was beaten.
·On 28 July 2009 during Operation Rah-e-Rast the Army captured the Taliban compound and arrested talibs and the applicant. The army tortured him and he declared his innocence. He told them about a Taliban compound which the army attacked and killed Taliban Commander Mustafa. He informed on other talibs and pointed out their houses. He was released in August 2009 after a Village Defence Committee leader and ANP members intervened on his behalf.
·In early December 2011 the army arrested and questioned the applicant for [a number of] days until the father got him released.
·In early May 2012 he joined a village rally that was protesting against the army’s cruel treatment of innocent people.
·The applicant was sent to Karachi to an uncle’s house for safety. But he returned to his village because in Karachi [in] June 2012 a talib (whose brother he had informed on) from his home area saw him in the market.
·After his return to the village, from [date to date] January 2013 the army arrested, detained, questioned and tortured him. He was released on condition he reported every fortnight. The army kept questioning him in 2013.
·A friend of his had died while held by the army.
·He breached the army’s reporting conditions when he departed Pakistan.
·After he came to Australia the army beat the father and demanded the applicant return to Pakistan.
Conclusion
Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a young, single Muslim Sunni and a Pashtun. He comes from an affluent family in [Village 1], Swat, Khyber Pakhtunkhwa province. His parents [and siblings] continue to live in Swat. I find that he lived in Swat during the insurgency and military operations against the militants although he and his family may have left Swat during Operation Rah-e-Rast as did most residents. I find that he is reasonably well-educated having completed his secondary schooling in [year] and then some short courses before departing Pakistan. I find that he arrived in Australia on a Student visa [in] February 2014 and he has now been here for over three and a half years.
As I discussed at the hearing, he is a Pakistan national who last departed Pakistan legally with a genuine Pakistan passport valid to [2018] and so will be able to travel to and enter Pakistan without difficulty.
At the hearing I pointed out that he departed Pakistan legally on his valid Pakistan passport and although he had sought refugee status here, country information does not show that the way he departed Pakistan or anything he had done in Australia including his failed asylum seeking, would cause him to face harm on his return. My comments drew on the January 2016 DFAT report, and subsequently the September 2017 DFAT report does not raise new issues with regards to his profile on returning to Pakistan as a returnee:
5.19 In practice, returnees tend to leave Pakistan on valid travel documents and therefore tend not to commit Pakistani immigration offences. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. Only those who are returned involuntarily or are travelling on emergency travel documents are likely to attract attention from the authorities upon arrival.
5.20 DFAT understands that those returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people tend to be released within a few days, either having been bailed by their families or having paid a fine, although there are provisions for jail sentences. Those wanted for a crime in Pakistan or who have committed a serious offence while abroad may be arrested and held on remand, or required to report regularly to police as a form of parole.
DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. [5.21]
The submission of 31 October 2017 indicated the applicant says he will not depart voluntarily and so would be an involuntary returnee. However, should the applicant return to Pakistan as an involuntary returnee who had attempted to migrate to Australia, in light of the foregoing I do not accept that he will excite the adverse interest of the Pakistan authorities beyond being questioned and soon released. Also, in light of DFAT’s assessment that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country, I find he will not face harm in Swat because of being an involuntary returnee who had attempted to migrate and was a failed asylum seeker and had lived in a western country.
There is no material before the Tribunal that shows the applicant’s time in Australia has westernized him to the degree that he would be imputed with a western lifestyle and harmed. He continues to be a practising Sunni and on returning to Swat will return to live in the family home as an unmarried man. Country information shows there is a great movement of people in and out of Pakistan and the applicant’s stay outside of Pakistan, even if known, would not excite the militant’s adverse interest. At the hearing I pointed out that country information does not show he will face harm on returning to Pakistan because of his residence in Australia. My comments drew on the January 2016 DFAT report- and the September 2017 DFAT report does not raise new issues with regards to his profile on returning to Pakistan as a returnee who had lived in the West:
3.139 Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship), and western-branded retail chains operate throughout the country. Both Urdu and English are official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives.
3.140 DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.
The applicant’s narrative is centred on two main elements: his activities in [Village 1] in Swat district that were against the Taliban; and the adverse attention of the Pakistan authorities arising from his Taliban connections. Because of these past activities and adverse attention and his current profile he claims he has a well-founded fear of persecution throughout Pakistan. However, in light of my foregoing credibility discussion 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. I do not accept that the applicant or any other family member came to the adverse attention of the Taliban or other militants, or gained their enmity at any time. I do not accept that the Pakistan army or Pakistan authorities arrested, interrogated, harmed or had an adverse interest in the applicant at any time, or killed a friend. I do not accept that the applicant had been required to regularly report to the army or that his departure from Pakistan breached any conditions, or that the military had asked after him or had beaten the father and demanded the applicant return to Pakistan. While I accept some of the applicant’s claims- that he and the father performed Nightwatch duties for a time- I find these did not cause the applicant to come to the adverse attention of either the militants or the military and will not cause him any difficulties in Pakistan now and in the reasonably foreseeable future.
I consider that if the applicant returns to Pakistan he would first seek to return to the family home in Swat. I acknowledge the advice of the Australian government for Australians not to travel to Khyber Pakhtunkhwa province, and as I said at the hearing, country information shows violence is greater in Khyber Pakhtunkhwa province than Punjab province. Whilst my comments at the hearing encompassed the January 2016 DFAT report, the later September 2017 DFAT report maintains this broad advice and states that “Overall, DFAT assesses that there is a low level of sectarian violence in Khyber Pakhtunkhwa in the context of a moderate level of militant and criminal violence across the province.” The DFAT report also states in part that “As is the case in most parts of the country, Khyber Pakhtunkhwa has seen a significant reduction in militant violence in recent years.”[7] It is clear that people living in Swat and the province need to exercise caution in relation to their personal safety. Nonetheless, the September 2017 DFAT report shows that militant violence has significantly reduced in the province that includes Swat, and general newspaper articles[8] show that the improved security in Swat in recent years has led to an increase in tourism and business, albeit many army checkpoints remain. In sum, I find there is not a situation of generalised violence in Swat such that residents cannot live there safely.
[7] At 3.59 and 3.60
[8] Cited in Evidence above
The September 2017 DFAT report stated in part:
Groups such as the TTP have splintered into several offshoot organisations; while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats. (2.34)
2.36 Several interlocutors in Pakistan told DFAT that the underlying conditions for militancy -particularly weak judicial and law enforcement institutions and economic under-development -have not been addressed, and speculated that violence would likely increase again after a period of relative calm.
Nonetheless, as discussed at the hearing, country information shows that while the severity of several terrorist attacks had increased in 2017, the government and military responded by announcing in February 2017 the Operation Radd-ul-Fasaad. This Operation is the successor to Operation Zarb-e-Azb and is a nation-wide anti-terrorism operation in accordance with the National Action Plan. I consider that the nation-wide anti-terrorism operations conducted since 2014 and still ongoing show the military and government remain committed to fighting terrorism across the country into the reasonably foreseeable future. As well, in my foregoing findings I do not accept the Taliban or any militants have had an adverse interest in the applicant or father or other family member in the past. I do not accept that the applicant faced harm as a young Pashtun Sunni Muslim male from Swat before, during or after the insurgency in Swat. I consider the applicant and family in Swat lived through the insurgency and its aftermath without being targeted or harmed by the Taliban, and that the applicant and his family do not have a profile that will attract the Taliban’s adverse interest in the reasonably foreseeable future. In light of the country information about the military and government’s ongoing commitment to fight terrorism across the country, together with my findings concerning the lack of past harm during and after the insurgency, and in light of the current profile of the applicant and family, I consider remote the chance that the applicant would be the victim of violence in his home area in the reasonably foreseeable future.
I acknowledge that reports show 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 or other family member has ever been identified as a target by the Taliban or other militants, and I do not accept that the applicant or other family member ever gained the enmity of the local Taliban, militants or any other agents as he claims. Although he claims to be a liberal Sunni Muslim he does not claim to be an apostate and he lived in Swat without being harmed by the Taliban during the insurgency, and his Sunni religion is the dominant religion in Swat and Pakistan. I do not accept he will face serious harm in Swat because of his particular observance of the Sunni religion.
The applicant has now completed his schooling and other courses in Swat and came to Australia as a student. There is no material before the Tribunal that shows his schooling and studies have ever attracted the adverse attention of the Taliban and I do not accept as a male student in Swat/Khyber Paktunkhwa province he was ever targeted or harmed by the militants or other agents. In light of the foregoing and country information that shows the Taliban no longer dominate Swat and violence there has decreased I do not accept he will face harm as a student or former student in the reasonably foreseeable future.
At times the applicant has mentioned family friends who had been connected with the Awami National Party but he has not claimed despite ample opportunity to have undertaken any political activities or to have had an interest in politics or to fear harm because of other persons’ political connections. I do not accept the family’s political connections (actual or imputed) will cause him any difficulties now and in the reasonably foreseeable future.
The applicant would return to his village as a young, single Pashtun man who had been absent for several years. I find that the father and other family members live in the family home in the village and have done so for years without facing harm or threats from the Taliban or Pakistan authorities. The applicant will have strong family support when he returns. The applicant has spoken of his poor view of army personnel who were Punjabi and who he claimed discriminated against Pashtuns. Nonetheless, his home area is Pashtun dominated and the discrimination, taunts and poor treatment he has spoken of do not rise to the level of persecution. DFAT in the September 2017 DFAT report assesses that Pashtuns do not face a higher risk of violence than other groups based on their ethnicity. I do not accept his ethnicity will cause him any difficulties now and in the reasonably foreseeable future.
In sum, I do not accept that in Pakistan in the reasonably foreseeable future there is a real chance he will be harmed or targeted in militant/sectarian attacks for reason of any part of his past activities or identity including as a young, single, educated, liberal Muslim Sunni and a Pashtun man from Swat, who had sought to migrate to Australia and returned involuntarily, either when the parts are considered separately or cumulatively.
In my credibility findings above I accept the applicant has some psychological problems based on the reports by [the psychologist] and the applicant’s evidence. I accept that he has received ongoing treatment from October 2014 and had good outcomes by August 2015 as the expert said by then he had stabilised and was able to engage in normal activities with ease. I accept that over the past three years the applicant has had significant treatment, but despite this treatment, with the approach of the Tribunal hearing the expert reported that his symptoms returned intensely. I accept that after the hearing he has had further treatment including consulting a psychiatrist and getting medication. The evidence strongly suggests and I accept that his psychological problems are attributable to depression, adapting to life in Australia, concern for his family, his unresolved migration status, and past life experiences in Swat- although as discussed I do not accept his psychological problems are attributable to the particular occurrences he claims. As well, I have considered the expert’s opinion about the effects on the applicant should he return to Pakistan and I note that particular emphasis is given to the applicant’s stated fear of being harmed and that he would feel unsafe in Pakistan. In particular, the most recent report states “If he returned there is no treatment option available that would help him whilst he remained in fear of his life”. 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 (including his psychologist, doctor, friends at the Mosque and in the local Pashtun community), but then he will immediately gain the very significant support of his parents and other family. His migration status having been resolved- albeit not in the way he wants- the applicant will be returning to Swat to the familiar family home and to the close community in which he grew up, surrounded by family and old friends. He will be familiar with the language, local social mores and village life. He will have settled living conditions and will not face the social isolation that he felt when he had to adapt to life in Australia.
As discussed, I reject the applicant’s narrative about the personal and direct harm he suffered before he departed Pakistan, and so I do not accept that he would be returning to a place where he actually suffered serious harm at the hands of the Taliban and the army. Nor do I accept that he in fact fears any Taliban or Pakistan military retribution or punishment on his return based on the reasons he claims. I acknowledge the applicant lived in Swat during the insurgency but country information shows there has been improved security throughout the country including Swat in recent years. The applicant will be able to return to the family home and his affluent family. While the applicant may have as the expert says “multiple fears of potential re-traumatizing events if he returned”, in light of the foregoing I consider the chance that he faces such re-traumatizing events is remote. In these circumstances I am not satisfied there is a real chance 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 he will be unable to get mental health treatment in Pakistan and what there is, is expensive. At the hearing I discussed the January 2016 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. The September 2017 DFAT report does not change this broad assessment. I acknowledge that the mental health sector in Pakistan is under-developed and under pressure, may be expensive and takes time to access, and almost all of it located in the cities. But as I pointed out to him, country information[9] shows medical and mental health treatment and appropriate medicines are available in Pakistan and ostensibly would be accessible by him. Indeed, I also find that the family operate a [store] and so there is local access to prescription drugs. There is no evidence before the Tribunal that suggests he would be denied treatment or that treatment would be withheld from him for any reason. In sum, I find that medical and mental health treatment and appropriate medicine is available in his home province now and in the reasonably foreseeable future, if he chooses to seek such care. I do not accept that the scarce psychological support and counselling in his home area and province, limited by location and in size, amounts to serious harm. Also, as I do not accept he will feel in fear of his life for the reasons he claims when he is living at home, I do not accept the mental health treatment he did access would be ineffective or hindered for that reason.
[9] 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, [The applicant has now been in Australia since February 2014 and at the hearing when I asked how he financially supported himself he stated he worked for a [business] and he had only brought $[amount] from Pakistan. The applicant’s [work] shows that his mental health issues and treatment have not prevented him from working and supporting himself in Australia. In sum, I am not satisfied that the applicant’s medical and mental health conditions will prevent or significantly hinder him from working or undertaking further study when he returns home.
In light of the foregoing and having particular regard to the applicant’s mental health needs here including the great improvement in his mental health until he was invited to a Tribunal hearing, 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 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[10].
[10] The non-exhaustive list provided in s.91R(2)
The submission of 31 October 2017 indicated the applicant’s brother living in [another continent] had been found to be owed protection obligations. However, no other material has been provided to the Tribunal concerning the brother and the brother’s migration outcome. In light of the foregoing and my findings that I do not accept the applicant’s narrative and evidence, I do not consider the brother’s migration outcome assists the applicant in the current matter.
When I consider all of the applicant’s personal circumstances including his mental health 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 militants, or from the Pakistan military or authorities or from any other agents or the general community. I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in his home area in Khyber Pakhtunkhwa province, for the reasons he has claimed of:
· Religion: He fears the Taliban, Sunni extremist groups and agents will harm him because he is a liberal, Sunni Muslim.
· Political opinion: He fears the Taliban, Sunni extremist groups and agents will harm him because of his political opinion (actual or imputed) as an anti-Taliban and anti-Sunni extremist man who had:
- been an actual and perceived informer to the Pakistan army
- been a member of the Village Defence Committee
- a profile as a student studying and seeking asylum in a Western country
· Political opinion: He fears the Pakistan authorities will harm him because of his political opinion (actual or imputed) against the Pakistan authorities, on account of being discovered by the army in Taliban custody and the army’s subsequent mistreatment of him.
- Membership of a particular social group, of: young Pashtun Sunni Muslim males from Swat; students in Khyber Pakhtunkhwa province; returnees from a Western country; failed asylum seekers 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.
In light of the foregoing, I find unconvincing and do not accept his claims that in Pakistan he faces a real risk of significant harm from the Taliban or militants, or from the Pakistan military or authorities. In light of the foregoing, I find he does not face a real risk of significant harm from the Taliban or militants, or from the Pakistan military or authorities or from any other agents or the general community- for any reason.
I accept the applicant may face dislocation when he returns to Pakistan, as he has not been there since February 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 psychological problems and may well continue to have this condition in Pakistan. Whilst I acknowledge that in Australia he manages to get a good level of support, I do not accept the submissions that on his return to Pakistan he will be unable to access support or that support would be withheld or denied him. In my foregoing discussions I acknowledged that the mental health sector in Pakistan is under-developed and under pressure, may be expensive and takes time to access, and almost all of it located in the cities. But as I pointed out to the applicant, country information shows medical and mental health treatment and appropriate medicines are available in Pakistan and ostensibly would be accessible by him. There is no material before the Tribunal that suggests he would be denied treatment or that treatment would be withheld from him for any reason. In sum, I find that medical and mental health treatment and appropriate medicine is available in his home province now and in the reasonably foreseeable future, if he chooses to seek such care. I do not accept that the scarce psychological support and counselling in his home area and province, limited by location and in size, amounts to significant harm.
The applicant will be returning to the close family support of his parents and other family. I am not satisfied that the applicant’s medical and mental health conditions will prevent or significantly hinder him from working or studying when he returns home. He was a student in Pakistan for several years after 2009 and he has worked as [an occupation] here. 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.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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
MemberATTACHMENT 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, [Key Legal Topics
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Immigration
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Administrative Law
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Judicial Review
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Natural Justice
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Procedural Fairness
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Citations1600907 (Refugee) [2017] AATA 2933
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