1603183 (Refugee)

[2019] AATA 4397

1603183 (Refugee) [2019] AATA 4397 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603183

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Luke Hardy

DATE:29 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2019 at 2:46pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – member of same family unit – father’s connection’s with government –threatening letters by Taliban – Pashtun – lack of credibility – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 85-89, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559

MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 [2004] HCA 18
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The [Applicant] is a Sunni Muslim ethnic Pashtun Pakistani citizen from the city of Peshawar in the province of Khyber Pakhtun Khwa (KPK). He first arrived in Australia [in] March 2013 on a student visa valid to 15 March 2016. He voluntarily returned to Pakistan on [in] April 2014 and re-entered Australia on [in] May 2014. He lodged a protection visa application on 23 July 2014 and the delegate refused to grant the visa on 19 February 2016. [The Applicant] then sought review by the Tribunal.

3. [The Applicant] appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. He was accompanied by his advisor, registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

4. At the commencement of the hearing, I raised with [the Applicant] the existence of a “Non-disclosure” certificate in his Department of Home Affairs (DHA/the Department) file. The certificate purports to order that certain documents in his file may not be disclosed to any person, the potential issue being that if I saw them and relied on them in a negative decision without disclosing them to him, I would fall into jurisdictional error. However, in this case, the certificate (at f.91 of the DHA file) states that it covers three itemised documents including three internal DHA checklists including, paradoxically, a checklist declaring that the file contains no documents that should be placed under a non-disclosure certificate. The certificate on file identifies all three documents, correctly in my view, as internal working documents, which means that the non-disclosure certificate is an invalid one[1]. I indicated to [the Applicant] and his advisor that none of these documents are relevant to my review of the present application. [The Applicant] and his advisor accepted this assurance.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   [1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98

   The issues

5. The main issue in this case is whether, on accepted facts, [the Applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

6. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims to the Department

7. [The Applicant] claimed in his protection visa application form that he is a Sunni Muslim. He claimed to have lived with his family at the same address [in] Peshawar from his birth until his first arrival in Australia. He claimed his parents still live there in Peshawar as do [his] siblings, including [a few] brothers, [some] of them unmarried. He claimed to be a [graduate of an] University.

8. [The Applicant] claimed his father [operates a] company in Peshawar that has [government connections]. He claimed his father invited him to visit the company’s worksites after his graduation. He speculated that members of Pakistan’s banned Islamist insurgency the Taliban must have seen him when he visited one of his father’s worksites.

9. He claimed in a statement attached to that form that when he went back to Pakistan for a visit in April 2014 he received a letter at his family’s home, addressed to him from the Taliban, asking him to report to them. He said he ignored the letter and then received another one, saying. “We know you are hiding, but we will find you and kill you, because you have turned Christian [and] you are working with the [information deleted]… Whenever we see you in Peshawar you would not have any result other than death.” 

10. [The Applicant] claimed that his family home is about [a few] kilometres from a district called the “[an Agency]”. He said that the Taliban proclaimed a parallel government in [an Agency], under a Taliban leader called Mangal Bagh, recruited local youths and pressured them to keep their beards.

11. I note that a different group, Lashkar-i-Islam (LI), i.e., not the Taliban, controlled the [an Agency], under its leader Mangal Bagh, until a local Zakhakhel tribal militia (TI) forced them out in 2011:

    … TI maintains security in the Bazaar Zakhakhel area of Khyber, preventing the return of LI.

    Although TI could be considered a lashkar (tribal militia), they prefer not to identify themselves as such. Lashkars are generally considered anti-Taliban, and Taliban factions are known to target any newly-formed lashkar. The Zakhakhel who comprise TI have no enmity with the Taliban in general or with other militant groups active in the area. Their only aim is to prevent Mangal Bagh and LI from gaining access to Zakhakhel areas. Therefore, they likely choose to downplay the fact that they are a tribal militia out of fear of reprisal attacks.

    TI is estimated to have 300-350 members. Under tribal traditions, each family among the Zakhakhel is required to send one person as a volunteer to the militia. TI also receives support from the political administration in the area, from which it has received weapons, ammunition, trucks and money. Nevertheless, in their fight against LI, TI did not receive any direct combat help from Pakistan’s military.

    TI also receives income from smuggling goods to and from Afghanistan, such as spare automobile parts, imported fabrics and food. This same smuggling route through Khyber was previously used by LI, from which it earned thousands of dollars daily. Indeed, it was the issue of how to divide the profits that caused the original split between LI and the Zakhakhel in early 2011…[2]  

    [2] “Mangal Bagh and LI Marginalized in Khyber Agency,” CTC Sentinel, April 2012, Volume 5, Issue 4,

12. [The Applicant] claimed in his protection visa application statement that the situation in the [an Agency] was volatile and there were local fears of a “backlash” from the Pakistan government. He seemed here to be suggesting that locals feared that the Government would send in the army to secure the district to prevents it becoming or continuing to be an Islamist stronghold.

13. [The Applicant] claimed that the Taliban regards anyone working with the government as an “infidel” who should be put to death. He said he has been targeted for such a fate in the letters received from the Taliban.

14. [The Applicant] subsequently submitted two photocopies of translated letters.

15. The first letter, dated 11 May 2014 and numbered “271”, under a purported Taliban letterhead, tells [the Applicant] that he is a person of interest to the Taliban and is required to report “to the Islamic Court of the Taliban in whatever circumstance you may be to resolve your file (matter)” The letter says that if he does not report, the court will make a “unilateral” decision and give him an opportunity to object. The letter, purportedly signed by someone on behalf of the “Islamic Council of Waziristan”, gives no suggestion as to where the “Islamic Court of the Taliban” might be located.

16. The second letter, dated only six days later, on 17 May 2014 and numbered “391”, under a slightly different “Taliban” letterhead, purports to advise [the Applicant] that he has failed to appear before the above-named Court, calling him an “infidel” who has gone into hiding and who has sought asylum in the “infidel” nation” Australia (although as at 17 May 2014, he had not done so) and telling him that if he comes back to Peshawar he will be caught and executed. The signing of this second letter resembles that in the first.

17. [The Applicant] provided the Department photocopies of documents arguing that his father’s company is [connected to] government. He also submitted a copy of a [November] 2014 [information deleted], with translation provided later, relating to the diffusing of a bomb (or the controlled exploding of it by “water charge”) at or near a [location]. [The Applicant] claimed to the Department that this bomb was placed in front of the home of his uncle. He evidently told the delegate that his uncle was the victim of a bomb explosion. [Information deleted].The delegate generally accepted [the Applicant]’s claims as being factual but found it safe, practicable and reasonable for him to relocate to another city like Lahore. The delegate appears to have questioned why [the Applicant] lodged a protection visa application when he did, given that his [temporary] visa had many more months on it, and [the Applicant] is reported to have said, to the delegate’s satisfaction, that he applied for the protection visa in July 2014 out of concern over what had happened to him in May 2014.

18. The Tribunal must make a determination on [the Applicant]’s claims de novo.

    Evidence submitted to the Tribunal

19. [The Applicant] submitted medical reports to the Tribunal stating that he is being treated [for a medical condition] and that he suffers from depression. He also submitted some photographic material as evidence of his father [connections with the government in the course of his work].

20. [the Applicant’s] advisor submitted a statement comprising legal arguments and references to media articles about the Taliban in Pakistan, notably relating to the Taliban telephoning people directly to demand money from them; to some intelligence officials having links to terrorists; to some terrorist networks engaging in violence in the city of Lahore; to the continuing presence of the Taliban in Pakistan; and to the existence of Taliban sleeper cells in that country. The submission quotes a number of articles reporting instances of Taliban violence in KPK particularly around the time of the 2018 elections.

21. [The Applicant] also submitted a number of articles describing discrimination against Pashtuns in Pakistan’s major cities like Lahore. In particular some of the articles discuss “racial profiling” by police and others in places like Lahore, where, for example, police point the finger, as it were, at Pashtuns whenever a crime has been committed by as yet unknown perpetrators, resulting in Pashtuns being held for questioning without good reason.

    The Tribunal hearing

22. I asked [the Applicant] about his studies in Australia. He said he commenced studying for a [qualification] but did not like the course and therefore switched to a course [in] February or March 2014, but found increasingly, over a period of one year, that he could not follow lectures due to increasing symptoms of physical [various medical conditions]. He said he submitted himself for [tests] around April and June 2014. He said he was losing weight at that time. He said he had to wait until March or April 2015 before receiving a precise diagnosis of his slowly deteriorating condition. He said he was already not attending any classes by February 2015.

23. [The Applicant] said he went back to Pakistan in April 2014 because his mother was sick. He said that he went during a semester rather than during a semester break. He said his mother’s condition has improved. He said he believed at the time he went to Pakistan that he had obtained appropriate leave from his education provider only to receive the first of a number of warnings for non-attendance from the latter after his return to Australia in May 2014. He said he had been unwell. He said he could not remember when he received his last warning.

24. It appears [the Applicant] lodged his protection visa application at a time when he was already finding it hard to attend classes and had received at least one warning from his education provider about absence from classes.

25. I asked [the Applicant] to describe the current circumstances of his family in Peshawar. He said his father [operates a company with connections to the government]. He did not suggest that his father has been contacted by the Taliban. He said his mother is a housewife as are his sisters. He said his brothers live and work or study in Peshawar, one of them working with his father. He said another brother is a [medical professional] in Peshawar and his other brothers are all students there. he did not suggest that the brother who works with his father has been spotted and contacted by the Taliban.

26. [The Applicant] also described [a number of] uncles, all working [in a specified]  industry in Peshawar, and  [uncles][who work in a specified area as well].

27. I asked [the Applicant] questions about the two letters. I asked him what kind of matter could it be that the Taliban might have wanted to discuss with him in a court. In reply, he said he did not know, adding that when the Taliban sends such letters it usually wants money. On my review of the two sequential letters, and their context, including the circumstances of [the Applicant’s] family, with two members running and helping to run a [company], and reports of the Taliban demanding money up front from people they contact, nothing in either of these communications suggested to me that its author(s) were trying to obtain money. All of [the Applicant’s] other evidence about Taliban methods of extracting money from the local population involved direct, apparently unambiguous demands for money and, in some of the evidence he provided, specific sums of money.

28. [The Applicant] said he was hiding in Pakistan when the second letter arrived, but his evidence about this was vague. Meanwhile, on earlier evidence, [the Applicant] was visiting and caring for his mother throughout the month he was in Pakistan, and remained there for  [a few] weeks after  [May] 2014, making it hard to see how he could have effectively been hiding.

29. When I asked him about the Taliban’s demands to attend a court, [the Applicant] said he did not know where or when he was supposed to report to the Taliban. He simply said he did not comply with the first letter. I asked him if he could help me understand why the Taliban would demand he appear in a court, not telling him either where or when he should appear, and then only waiting [a few] days to declare him to be some kind of “infidel” evader. In reply, he said that the Taliban normally have spies around Peshawar, in the area they call Waziristan, so that if a person wants to meet them he can contact one of those spies. He said he chose, rather, to hide. I put to him that the letter did not even suggest he contact anyone and he said, “They wrote it; not me.” His story about being left to guess which people to contact struck me as being somewhat far-fetched.

30. I put to [the Applicant] that, whether the Taliban merely wanted money or wanted to punish an “infidel” who had been in Australia, the first letter seemed either to fail in, or defeat, its own purpose, in that it appeared to give him, who claims nowhere in Pakistan is safe, enough motivation to leave Pakistan as soon as possible. In reply, [the Applicant] said the letter was not written by him and that had he written it he would have done a better job.

31. I also put to [the Applicant] that the Taliban seemed uncharacteristically adherent, at least on paper, to notions of “due process”, notwithstanding that the first letter gave him no deadline or other guidance. In reply, he said that “maybe” the Taliban was just trying to verify “reports” about him, or just trying to obtain money.

32. I put to [the Applicant] that it was necessary for me to scrutinise both of the letters in their claimed context due to a preponderance of independent information[3] to the effect that falsified documents are easy to obtain in Pakistan for a price. [The Applicant] denied that either of the letters was false.

    [3] “Documentation: Prevalence of Fraud,” DFAT Country Information Report: Pakistan, 20 February 2019, paragraphs 5.70 to 5.76.

33. I asked [the Applicant] how the two letters came into his hands, and he said that they were sent to him as digital scans from his cousin in Pakistan around the time he submitted his protection visa application. He said he could not have brought them here himself. He said such letters could not be sent in the mail as their content was threatening. He said his father gave them to his cousin who attached them as scans to an email.

34. I asked [the Applicant] if anyone had shown these letters to authorities in Peshawar, as they appeared not only to be threatening but also purportedly signed by an individual Taliban member: they might have been useful to investigators like the ones who were investigating bomb attacks and the like. (See paragraph 38 below). In reply, [the Applicant] said there would have been no point showing such letters to the authorities because this kind of material was so common that the authorities no longer took any of it seriously. [The Applicant’s] adviser said that according to the translations provided, no-one can read the name of the author of the two letters. I have considered that suggestion but find it somewhat misleading, since all that is said is that the interpreter cannot discern a name in the signature provided. If the signature is genuine, and no effort had been undertaken to help authorities in Pakistan ascertain whether it might be, it is not necessarily the case that the signature would not be recognised by those authorities in that country. 

35. I put to [the Applicant] that if the Taliban was trying to get money out of his family, he seemed an odd one to single out: his father co-owns a [a company] that also employs his brother. I put to him that on his evidence so far, all his family members are just getting on with their day-to-day lives unharmed and unthreatened by the Taliban. In reply, he says his father has to go to work and, in any event, carries a firearm. I put to him that, even so, his family has been and continues not to be harassed by the Taliban or other groups.

36. In reply to this, [the Applicant] made an apparently new claim: he said that his family receives telephone calls from the Taliban, or a faction that split for the latter, demanding sums of money. I put to [the Applicant] that this appeared to be a new claim and asked him why he had not presented it before. In reply, he said the calls only started two years ago, after his protection visa interview with the Minister’s delegate. I put to [the Applicant] that although his submissions to the Tribunal referred to articles about the practice of telephone extortion in Pakistan, he had not claimed in any of those submissions that his family had ever received any such calls. In reply, [the Applicant] said the calls started around [years] ago. He went on to say that if a person refuses to pay the Taliban that person or members of the person’s family are killed. I put to [the Applicant] that after [years] in his family’s case and [a few] years in his own, no such treatment had been visited on his family, whereupon he gave confused evidence as to whether the group harassing his family was actually the Taliban or from other extremist group or faction.

1. [The Applicant] went on to say that the Taliban demanded money [from] his [uncle] who refused to pay them anything.  He claimed that the Taliban then laid a bomb outside his uncle’s house. He said the police came and defused the bomb. He said that since that episode his uncle has been paying tithes to the Taliban. I asked [the Applicant] if he had told the delegate that the bomb actually blew up in front of his uncle’s house and he informed me that this indeed was what he had said to the delegate.[Information deleted]. I note, however, that no houses are mentioned in the [information deleted]. Meanwhile, [the Applicant] claims his uncle was approached by authorities in the course of their investigation, but none of the [investigators] entertained the possibility that the bomb was laid to intimidate an individual who lived across the road from the [location] after he refused to give money to the Taliban. It struck me that [the Applicant’s] claims about the bomb having been set directly to target a family member of his was tenuous, somewhat contradicted by available independent evidence, otherwise unsupported and somewhat far-fetched.

2. I asked [the Applicant] if he wanted to draw my attention to any factors relating to the photographs he had submitted. In reply, he confirmed they were evidence of his father’s work and role in society and of his cordial relations with Pakistani officials and authorities.

3. I asked [the Applicant] to explain what reason would motivate the Taliban or some other group to want to extort money from him or his family and he said that his family is well-off, having funds that the Taliban covets. He said there are thousands of examples of the Taliban and other groups trying to obtain money by extortionate means.

4. I asked [the Applicant] about the option of relocating to a place outside of his home province, given that he speaks Urdu, has demonstrated here in Australia a capacity to subsist outside of his local home environment. I asked him about Islamabad and Karachi as specific potential examples. In reply, he said there are so many Islamist militants in cities. I asked him why he would be targeted in such places and he said that militants try to extract money from people in places not limited to Peshawar.

5. I put [the Applicant] that extortion of money, even I large sums and/or over time is not necessarily persecution. In reply, he said there is also discrimination against ethnic Pashtuns in Pakistani cities outside of KPK province. He referred me to a report about 300 Pashtuns having “disappeared” after encountering Pakistani authorities in 2016. I acknowledged the content of independent reports [the Applicant] had submitted relating to police in Pakistani cities racially profiling Pashtuns when responding to reports of crimes. He said that police usually search Pashtun homes first after bomb explosions. I put to him that racial profiling, whilst discriminatory, is not necessarily, in and of itself, persecution. I asked him why he thought the 300 Pashtuns had been taken away, and he said that police had been instructed to search for Taliban militants, who are usually Pashtuns, and had swept up Pashtuns who were not Taliban members in their operations. He said that if there is a bomb explosion in Lahore, the police question and arrest Pashtuns as a first response.

6. I put to [the Applicant] that much of his evidence appeared to indicate that he, as with other members of his family, would be able to live and work in Peshawar without facing a real chance of being persecuted, but for what is purportedly suggested directly to him in the two letters.

7. Summing up his client’s position, [the Applicant’s] adviser suggested that there might be a Convention-related factor to the harm [the Applicant] claims to fear because he is a member of a family whose head is his wealthy father. I considered this suggested formulation, but, on reflection, it appears that money, and the criminal desire to obtain it by illegitimate means, is the essential and significant factor in the harm claimed, meaning that the feared harm lacks a Convention nexus. ’[the Applicant’s] adviser said that the harm feared, in the event of failure to pay, is nonetheless significant harm for assessing eligibility for complementary protection, and I said that it is, in principle, because according to the second letter to [the Applicant] it involves intimations of a “death penalty” and “arbitrary deprivation of life”.

8. [The Applicant’s] adviser said that it would not be reasonable to expect him to relocate to another part of Pakistan because the terrorists and their networks would locate him and perceive that he had been trying to evade them. He also said that [the Applicant’s] health and depression would make it impractical for him to start life in a different location in Pakistan.

9. [The Applicant’s] adviser also said that while Peshawar is no longer controlled by the Taliban there is no need for the Taliban to have control of that city and its environs in order to be disruptive. I accepted this general position, notwithstanding that I must consider [the Applicant’s] claims about his vulnerability to Taliban repression on their individual merits.

   Post-hearing submissions

10. A 3 April 2019 submission from [the Applicant’s] adviser states that [the Applicant] is from a wealthy family in Pakistan, that he holds opinions against the Taliban and Sunni extremists. The submission asserts that state protection in Pakistan is weak and does not rise to the standard in MIMA v Respondents S152/2003 [2004] HCA 18. The submission goes on to say that [the Applicant] would face harm in larger cities in Pakistan and that he would need to return to Peshawar periodically to renew his national ID, thus facing heightened risk of harm there.

11. [The Applicant] submitted a copy of a news report regarding the kidnapping and murder of Peshawar policeman Tahir Dawar by the Taliban in late 2018. The officer was evidently kidnapped in Islamabad and his body dumped inside Afghanistan. [The Applicant] submitted another article about the fatal shooting of a trade representative in Peshawar. Both offences have been attributed to the Taliban.  

12. On 24 April 2019, [the Applicant] submitted another independent article regarding discriminatory treatment of Pashtuns in cities outside of KPK, including such activities as extrajudicial killings and a “fake police encounter” in Karachi.

    Findings in relation to s.36(2)(a) of the Act

13. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

    [4] MIMA v Rajalingam (1999) 93 FCR 220.

    [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

14. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either

15. “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] It is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]

    [6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [7] Sun v MIBP [2016] FCAFC 52 at [69].

16. It has not been suggested in this matter that [the Applicant’s] health or purported depression has prevented him from giving meaningful evidence. Having considered all of the evidence before me, I am not satisfied on the evidence before me that any deficiencies in [the Applicant’s] evidence is due to any circumstances beyond his control.

17. I accept that [the Applicant] is an unmarried, ethnic Pashtun, Sunni Muslim university graduate from Peshawar in Pakistan’s KPK province.

18. I accept that [the Applicant] holds opinions that are not sympathetic with the Taliban or other religious extremists in Pakistan, but what weight I give to this factor is a separate matter. I do not accept on the evidence before me that [the Applicant] is genuinely interested in spreading or publishing any political or religious views. Not even the purported first Taliban letter accuses him of such activity, while the second only accuses him of failing to appear and of having sought asylum in Australia. I find no basis for accepting that [the Applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future, either separately or cumulatively, due to the opinions and beliefs he holds.

19. I accept that [the Applicant’s] father operates a business [with connections to] government at various levels in Pakistan. I accept that [the Applicant’s] father is known in Pakistan to have cordial relations with government officials and authorities there. I accept that one of [the Applicant’s] brothers is employed in their father’s business, and I give this particular face some cumulative weight in the present matter, because [the Applicant] has suggested that being seen to be affiliating with his father’s business may have been a factor in motivating the Taliban to harass him, whereas no such harassment has evidently been suffered by [the Applicant’s] brother.

20. I accept that [the Applicant’s] siblings all live and work in and around Peshawar as claimed and I give these facts some cumulative weight, again because it has been claimed that being a member of [the Applicant’s] father’s family heightens the risk of being persecuted in Pakistan, whereas, looking at the circumstances of [the Applicant’s] siblings, this has not been the case.

21. I give some cumulative weight in this matter to the fact that [the Applicant] voluntarily returned to Pakistan to care for his mother in 2014. It is reasonable to infer that he weighed the risks of doing so and found that the risks of residing in Peshawar with his family did not outweigh the need to help his mother. His return is indicative of a lack of fear, up to that time, of repatriating to his home area to be with his family. As noted, however, [the Applicant’s] claims are all about what happened after he returned in 2014, but in any event the evidence in this matter contributes to my concluding that there was no underlying or ongoing threat to his family up until the purported arrival of the two letters, purportedly one after another.

22. It therefore seems to me to be illogical that [the Applicant] became a target of one letter and then another from the Taliban in 2014 after being linked to his father, whether due to his father’s money or due to his father’s role as a high-profile [contractor]. I do not accept, on the evidence before me that this link has been a basis for harassing [the Applicant], and in coming to this conclusion I give weight to the fact that [the Applicant’s] brother has for some time been employed in their father’s company without receiving death threats from the Taliban or any other militant group.

23. [The Applicant] has provided another reason why the Taliban wants to harm him, being that, as disclosed in the second letter, he was already rumoured to have sought asylum in Australia back in 2014, even before he took steps to do so, by virtue of having travelled here. 

24. The problem for [the Applicant] here is that I conclude on the evidence before me that both letters are fabrications. One cumulative reason for this is that I consider it incongruous that the letter summons [the Applicant] to some kind of court without saying where or when; that is just illogical. Another such reason is that, whereas [the Applicant] claims that the Taliban kills people and their families for failing to respond to demands, nobody in [the Applicant]’s immediate family has been killed or suffered an attempted killing. [the Applicant] claims his uncle is an example of the kind of retribution the Taliban enacts when its demands are ignored or refused, but I do not accept on the evidence before me that the [location of the] bomb had anything to do with ’[the Applicant’s] uncle, and I consider that ’[the Applicant’s] efforts to suggest such a link ultimately go against his overall reliability in this matter.

25. Another cumulative factor in my conclusions about the two letters is the reported ease with which fabricated documents are created in Pakistan. A further cumulative reason for my conclusions as to their authenticity is that the only authorities to which these threatening documents have been referred are Australian authorities. [The Applicant] has given conflicting evidence about the Pakistani authorities’ interest in investigating evidence of Taliban intimidation: on the one hand, his uncle was asked to assist; on the other, they would never take these two letters seriously, even in the case of the son of a high-profile [contractor]. Ultimately I have unresolved concerns about the actions these letters did not trigger in Pakistan as opposed to the action they evidently did trigger in being sent to Australia in time to be submitted in connection with ’[the Applicant’s] protection visa application.

26. It also strikes me as odd that [the Applicant] still thinks that the motivation for sending these letters, or at least the first one, is about demanding money, because his own evidence elsewhere in this case indicates that Taliban demands for money are unambiguously about the money they demand. Neither of these letters allude to money at all, which fact leaves [the Applicant’s] supposedly genuine, subjective intuitions about the letters far-fetched. Ultimately, I do not accept that a person as well-educated as [the Applicant] is, with evidently so much knowledge about how the Taliban interact with the general population in his home region, would genuinely intuit that the first letter was, or even could have been, a demand for money. I find his explanation for that letter to be disingenuous, and that is a cumulative factor in my overall conclusion to the effect that both letters are fabrications.

27. I do not accept on the evidence before me that [the Applicant’s] family started receiving telephone calls from the Taliban or any other group demanding money in the last two years, or ever. [The Applicant’s] claim to this effect was, as noted, a new claim not raised with the Department. Notwithstanding that new facts can arise over time, say, when threatening persons escalate their harassment of a person or person, I find that [the Applicant] had an opportunity to mention such an important new claim in his pre-hearing submissions to the Tribunal which included general reporting about such practices in Pakistan, and I give some weight in this matter to the fact that he did not. Meanwhile, whereas he suggests his immediate family members have been receiving telephone calls from the Taliban or some other group demanding money under threat of harm should they refuse, no potentially relevant harm has come to any of them. In addition, this new claim is not supported other than by the general reports about other people having received such demands over the telephone from time to time. Overall, I find that [the Applicant’s] claim about his family having received threatening demands for money over the telephone is a recent invention, and goes to my overall impression to the effect that he is, to a critical extent in this matter, unreliable. In the circumstances, I give no weight either way to the suggestion that [the Applicant’s] father has or carries a firearm.  

28. Generally, although I accept that the pushback against the Taliban in KPK province and other parts of Pakistan suffers occasional violent setbacks, and even though I accept that [the Applicant’s] family has a profile for its [work] and other affiliations with state officials, I am not satisfied that [the Applicant] faces a real chance of being persecuted by the Taliban or any other extremist and/or militant group or any party in Pakistan in the reasonably foreseeable future. I am not satisfied on the evidence before me that he would be unable to avail himself of effective state protection from harassment from the non-state parties he describes in his claims.  I find that the level of state protection available to [the Applicant], evident in the protection enjoyed by his family, is sufficient to meet standards considered and set out by Australian courts in relevant rulings, including MIMA v Respondents S152/2003 [2004] HCA 18. Although we explored the issue of relocation during the Tribunal hearing, I find that [the Applicant] does not need to relocate in order to avoid a real chance of being persecuted.

29. Meanwhile, I am not satisfied that [the Applicant] faces a real chance of being persecuted in Pakistan for reasons of his Pashtun ethnicity. Such a problem has evidently not been not faced by him or his family in KPK province. I am not satisfied on the evidence before me that he would face a real chance of being persecuted for reasons of his “race” or ethnicity in the event of trying to access KPK province form a port of entry in Pakistan. I give some weight to the fact that, travelling to and from Australia, he has travelled through such places [a number of] times without potentially relevant incident in fairly recent years.

30. I am not satisfied on the evidence before me that [the Applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for either separate or cumulative reasons of having stayed, or having sought asylum, in a Western country in general or Australia in particular.

31. On the basis of independent country information, I am not satisfied on the evidence before me that [the Applicant] faces a real chance of being persecuted in Pakistan due to his living close to the area [an Agency].

32. Looking at when [the Applicant] lodged his protection visa application in 2014, I find on the evidence before me that he did so around the time he was already ill and foreseeing difficulties attending and completing his studies, and also soon after already having received warnings about non-attendance. This evidence of concurrent factors contributes cumulatively to my finding that he had strong motivations for lodging a protection visa application that had nothing to do with a genuine need for protection.

33. Having considered all of the evidence in its entirety, I am not satisfied that [the Applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any Convention-related reason. His claimed fear of being persecuted in Pakistan for a Convention-related reason is not well founded. He is not a refugee.

1. For the reasons given above, I am not satisfied that [the Applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

   Findings in relation to s.36(2)(aa) of the Act

2. Having concluded that [the Applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

3. A person is entitled to protection under s.36(2)(aa) if there are 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.

4. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

5. "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.

6. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

7. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

8. 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.

9. Accepting that [the Applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.

10. I find that the harm [the Applicant] identifies in his claims appears to include a form of “death penalty” albeit handed down by an unrecognised “state”, “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

11. [The Applicant’s] claims to complementary protection are for the most part the same as his refugee status claims. Since his refugee claims failed, variously, due to lack of credibility,  a failure to meet the “real chance” test, and owing to the availability of effective state protection, they can no more succeed as complementary protection claims.

12. On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the Applicant] will suffer significant harm. 

13. Accordingly, I am not satisfied that [the Applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

14. 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, he does not satisfy the criterion in s.36(2) 

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

16. 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.

17. 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).

18. 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.

19. 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’).

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