1603412 (Refugee)

1603412 (Refugee) [2019] AATA 6682 (12 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603412
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Paul Millar
DATE:12 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 12 December 2019 at 3:50pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – social group – political activities – member of ANP – attacked by MQM – friend shot – fear of harm from former girlfriend’s family – claim brother was attacked – inability to focus on questions – inconsistencies relating to mental state – psychological report provided – not truthful witness – attempt to conceal conflicting evidence – vague evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 417, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZGIZ v Minister for Immigration and Citizenship[2013] FCAFC 71

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who the Tribunal finds to be a citizen of Pakistan, applied for the visa on 16 October 2012 and the delegate refused to grant the visa on 10 February 2016.[1] The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashtun and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
[1] The Tribunal’s finding on citizenship is based on copies of the applicant's Pakistan passport which appear at folios 1-4 of Department file [info deleted](‘Department file A’).
CRITERIA FOR A PROTECTION VISA
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.
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.
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’).
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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] February 2011 as the holder of a [Visa].[2] He applied for protection on 18 February 2011 and his application was refused by the Department. This decision was affirmed by the former Refugee Review Tribunal in August 2011 (‘the first Tribunal’).[3] The applicant sought judicial review of that decision in the former Federal Magistrate Court. He subsequently discontinued those proceedings in February 2012.
[2] This chronology of the applicant's migration history is taken from the decision of the delegate.
[3] See RRT Case Number 1104327 (29 August 2011).
The applicant then sought the intervention of the Minister pursuant to s.417 of the Act, but, the Minister declined that request. In October 2012, the applicant again applied for protection and this application was accepted by the Department on the basis of the decision of the Federal Court in SZGIZ v Minister for Immigration and Citizenship.[4] On this basis, the task of the Tribunal is to determine whether the applicant meets the complementary protection criterion.
[4] [2013] FCAFC 71 (3 July 2013).
According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he is a Pashtun and supports the Awami National Party (‘ANP’).[5] The Tribunal holds concerns about the applicant’s credibility. Before discussing them, it is necessary to first recite the evidence given by the applicant at the Tribunal hearing with respect to his protection claims.
Evidence at the Tribunal hearing
[5] The applicant's evidence to the Department and the Tribunal, with respect to this particular application for protection, comprises the contents of the protection visa application forms; the applicant's evidence at his interview with the delegate for which there is an audio recording on Department file A and to which the Tribunal has listened and the applicant's evidence at the Tribunal hearing. The Tribunal also had access to Department file [info deleted] (‘Department file B’) which relates to the application the applicant made for a protection visa in February 2011. The Tribunal has taken into consideration and discusses in this decision, information on that file that relates to the applicant's protection claims.
To the Tribunal, the applicant said that he was born in Karachi. He lived in Karachi until leaving Pakistan in late 2010. After completing school, the applicant undertook and completed a ‘[course]’. He worked as an assistant in a shop in Karachi operated by one of his brothers. With respect to his political activities, the applicant said that in approximately 2005 or 2006 he began to undertake activities for the ANP. He said that he was not a famous or public figure in the party. He undertook his activities around the time of elections. This involved [various tasks]. He undertook activities in this fashion up until leaving Pakistan in late 2010.
The Tribunal asked the applicant whether, at any time in his life in Pakistan, he lived or spent time in another part of the country, away from Karachi. In response, the applicant said that in approximately 2009 he went to his ancestral villages in [Location 1] with a number of other people who were all supporters of the ANP. This was the first and only time he went to these villages. One village was his mother’s native village and the other was his father’s native village. The applicant remained in this area for approximately one month. In that period, he assisted local ANP representatives to distribute emergency supplies to people in need due to an operation being undertaken at that time by the Pakistan army to take control of the area from the Taliban.
To provide support of this nature to people in the area was primarily the reason why the applicant and those with him travelled from Karachi to that location. In addition to those activities, the applicant also attended gatherings organised by the party at which people spoke against the Taliban. The applicant himself attended and spoke at three such gatherings in three different areas. When asked what he spoke about at these gatherings, the applicant said that he told those present not to support the Taliban. He also repeated the slogans of his party.
The applicant also said that, at these gatherings, party leaders told those present that they must support the operation being conducted by the Pakistan army. The Tribunal asked the applicant whether he also told those present to support the army. In response, the applicant said that he did not do that. When asked why not, he said that those matters were dealt with by the party leaders so ‘why would [he] say that?’. The Tribunal asked the applicant how he felt about his party’s position that the people in the area should support the Pakistan army. In response, the applicant said that he agreed with that position and said that the people in the area should support the army. However, he did not say that when he spoke at these gatherings. He just told those present not to support the Taliban.
The Tribunal asked the applicant why he returned to Karachi after one month in [Location 1]. In response, the applicant said that one of his friends was shot at by an unknown person. This incident occurred in one of the locations where he had spoken at a gathering. The shooting took place approximately two days after that and, although the applicant was to speak at another party gathering, he and his friend left [Location 1] and returned to Karachi. The Tribunal asked the applicant whether the only reason he left [Location 1] was because of the attack on his friend. In response, the applicant said that was correct. He believed that the Taliban was responsible for the shooting. One year after his return to Karachi, the applicant then left Pakistan to work in [another industry].
The Tribunal asked the applicant whether, in his life in Pakistan, in particular, the period in which he undertook activities for the ANP, he was ever attacked by anybody. In response, the applicant said that he participated in party gatherings and there were a number of incidents in which others would come and attack those present leading to party supporters being wounded or even killed. The Tribunal asked the applicant whether he was ever, himself, attacked, hit or assaulted by anybody. In response, the applicant said that a number of blasts occurred at gatherings and he referred to the death of a party leader around elections held in 2018.
The Tribunal again asked the applicant whether he, himself, was attacked, beaten or assaulted by anybody in Pakistan. In response, the applicant said ‘No’. The Tribunal then asked the applicant why he left Pakistan in late 2010. In response, the applicant said that he had been in a relationship with an ethnic Punjabi woman who fell pregnant. Her brothers objected to the relationship and the pregnancy because the applicant was Pashtun. This woman’s brothers said that they would kill the applicant for being in a relationship with their sister. He said that in 2017 she died, but he did not know the cause of her death.
The Tribunal asked the applicant whether her brothers threatened to kill him prior to his departure from Pakistan in late 2010. In response, the applicant said that was correct and, at that time, he was hiding from them. The Tribunal asked the applicant why these people would seek to harm him if he returned to Pakistan. In response, the applicant said that they would definitely wait for the opportunity to seek revenge for the applicant having been in a relationship with their sister.
The Tribunal then asked the applicant whether there was any other reason he was afraid to return to Pakistan. In response, the applicant said that the main reason was his fear of the brothers of this woman with whom he had been in a relationship. The Tribunal asked the applicant whether there was any other reason he was afraid to return to his country. In response, the applicant said that the fear of this woman’s brothers was the main reason, before then saying that there was no other reason.
The Tribunal then asked the applicant whether, apart from his fear of his former girlfriend’s brothers, there was any other reason he left Pakistan in late 2010. In response, the applicant said that he had been in the ANP and, on return to Pakistan, he would resume his support and activities for that party. The Tribunal asked the applicant whether, when he left Pakistan in late 2010, he held any fear of the Taliban. In response, the applicant said that he did and that was because of the shooting incident involving his friend in [Location 1]. He said that this was the reason why he held a fear of the Taliban because he thought that they might attempt to shoot him. The applicant then referred to the regime of the leader Imran Khan and changes brought to the country as a result. When asked to explain that reference, the applicant said that on return to Pakistan he would resume his support for the ANP and he would suffer harm as a result.
The Tribunal then asked the applicant about his family. The Tribunal put to the applicant its understanding that one of his brothers also travelled from Pakistan to Australia and, based on the evidence he gave at his interview with the delegate with respect to this current protection visa application, the applicant has had no contact with him. In response, the applicant said that was correct. He said that his mother died in 2018 and he was told that his brother went back to Pakistan.
The Tribunal asked the applicant whether any member of his family had ever been arrested or attacked in Pakistan. In response, the applicant said that he had a brother who supported the Pakistan People’s Party (‘PPP”) and, on one occasion when travelling in a ‘[vehicle] with a high profile party leader, men on motorcycles fired shots at them. He said that his brother was wounded in this incident and his party colleague subsequently died from the injuries that he sustained. The applicant said that, normally, this person would travel with escorts and guards, but, on this occasion, he travelled in the vehicle only with the applicant’s brother.
The Tribunal asked the applicant whether there was any other occasion any member of his family had been attacked. In response, the applicant said that there was no other occasion beyond the incident that he had just mentioned. The Tribunal asked the applicant whether any member of his family had ever been arrested in Pakistan. In response, the applicant said that no member of his family had ever been arrested. When asked if he had a family member who lived in [Location 1], the applicant said that no one stayed there. When asked if he had any relatives in that area, the applicant said that there were distant relatives on both his mother’s side and his father’s side.
The Tribunal asked the applicant whether any of his relatives in [Location 1] had ever been detained. In response, the applicant said that he did not know anything about that. He said that in 2009 during the military operation a lot of ‘family’ were killed or went missing. When asked if any of these people belonged to his own family or were his relatives, the applicant said that he knew of the brother of his mother’s sister-in-law who had gone missing. When asked if this person had been taken or abducted by any group, the applicant said that he did not know. He then said that it was possibly somebody from the Taliban, but, he did not know. The Tribunal then asked the applicant whether the Taliban ever asked members of his family or relatives to cooperate with them. In response, the applicant said that to his knowledge that did not happen. When asked if the Taliban ever detained a family member or relative of his, the applicant said ‘No’.
The Tribunal turned to the issue of the applicant’s knowledge of his party and politics in Pakistan. In this respect, the Tribunal asked the applicant to name the last election in Pakistan in which he undertook political activities for his party. In response, the applicant said that he undertook activities for elections held in 2008. When asked what those elections were held for, the applicant said that he was not sure. He said that he was not sure if the elections were after the assassination of Benazir Bhutto, whether the elections were for the government of the country or for a particular part of the country.
The Tribunal asked the applicant to name his party’s candidate in those elections for the area where he was undertaking political activities. In response, the applicant named two locations and then mentioned the name ‘[Name 1]’ or ‘[variation of Name 1]’ who stood for elections in Karachi. He then said that this person was from Sindh province. The Tribunal again asked the applicant to name his party’s candidate in the elections in question for the area in which he undertook political activities. In response, the applicant said that ‘[Name 1]’ was the candidate for the ‘Sindh Karachi’ area.
Credibility concerns
Inconsistency in the applicant’s protection claims
In his protection visa application form, lodged with the Department in February 2011, where required to give his reasons for claiming protection, the applicant said that he and his brother were involved with the ANP in Karachi. The applicant stated that, because of their involvement, they were threatened and attacked by people from the ‘MQM”. In addition, the applicant said that ‘religious extremists’ may also harm him because of his support for the ANP as it was a ‘secular progressive party’. However, beyond that single, isolated reference to a different agent of harm, the tenor of the applicant’s claims in this application form was that he left Pakistan and was afraid to return there because of threats and attacks from the MQM.
When interviewed by the delegate in April 2011 with respect to his first protection visa application, the applicant was questioned as to who in Pakistan he feared would harm him. In his responses, the applicant mentioned being attacked by MQM members at a rally for his party in July 2010. He said that this was the only occasion on which he was attacked, but, he also received threatening telephone calls. The delegate asked the applicant why he could not live safely in another part of Pakistan away from Karachi. The applicant responded that he would not be safe in another part of Pakistan because the MQM would harm him and the Taliban would make him grow a beard, force him to join them and they would target him.
In submissions dated 19 August 2011, the applicant’s former representative claimed that the applicant was from [Location 1] and, as his family had refused to support extremist groups, he was at risk of harm from them. It was submitted that the applicant opposed the Pakistan army’s approach in that area and those he feared would find him in any other part of Pakistan he chose to live.

At the hearing before the first Tribunal on 19 August 2011, the applicant made specific claims about being targeted by the Taliban. In this respect, he said that although he was born and lived in Karachi, he and his family also spent time in [Location 1]. In that area, they did not conform to the demands of the Taliban, three family members were detained by the Taliban and, consequently, he and his family were on a list of people to be pursued targeted by the Taliban.
With submissions dated 1 June 2012 in support of the applicant’s request for Ministerial intervention, the representative provided a statutory declaration made by the applicant on 16 July 2011 in which he made the following claims.[6] He and his brother supported the ANP and he and his family lived in Karachi as well as [Location 1]. In March 2009 members of his family were arrested by the Pakistan army. In May 2009, the applicant joined a Jirga demanding the withdrawal of the Pakistan army from the area, the release of Pashtuns arrested in [Location 1] by the Pakistan army and that the Taliban, Al Qaeda and the army be prevented from entering the family’s village in that area. The applicant took part in groups going to other areas within the Khyber Pakhtun Kwa province (‘the KPK’) to ‘enhance support’ against the Taliban and the army.
[6] See folios 186 – 187 of Department file B.
In this declaration, the applicant said that in June 2009 he and others passed a resolution in a mosque that the army should be denied access to the province, following which the applicant played a ‘major role’ blocking the road near that area. That same month, the army arrested members of the applicant’s family and the army went to the applicant’s house in the area to arrest him. Due to these events, the applicant went to Karachi. In addition, an older brother, crossed the border into Pakistan. The applicant had ‘cousins and brothers’ in Karachi with whom he had no contact and who supported the Punjabi government. Finally, the applicant claimed that he disagreed with the treatment of the KPK by the Pakistan government and asserted that the Taliban acted for the government’s intelligence agency.
In submissions dated 16 October 2012, the representative enclosed the applicant’s second protection visa application and made arguments as to why it should be considered with respect to the complementary protection criterion. In the second protection visa application, at that part of the application form where required to give reasons for claiming protection, the applicant said due to his membership of the ANP, the Taliban would harm him for voicing opposition against them. The applicant did not specify any other reason for claiming protection and did not express a fear of any other agent or party.
At his interview with the delegate held in May 2014, with respect to his second protection visa application, the applicant said that he lived in Karachi, but, went to [Location 1]. He expressed a fear of harm from the MQM and the Taliban due to his ethnicity and his activities for the ANP. The applicant said that in 2009 he attended a meeting held in [Location 1] at which he and others told the Pashtuns in attendance not to support the Taliban. Certain elders present told the applicant and the others they should leave immediately or they would be harmed due to the presence of Taliban supporters there. While the applicant mentioned the military operation being undertaken in that area in 2009, he did not advance any of the claims he advanced in his statutory declaration of July 2011 in which he said, in effect, he was at risk of harm from the army for voicing opposition to their operations at that time.
Towards the conclusion of his interview with the delegate, the applicant stated that he feared harm in Pakistan from the brothers of a woman with whom had been in a relationship and who had fallen pregnant to him. The applicant said that her brothers made her abort the pregnancy and warned him not to come back or they would kill him. The delegate put to the applicant that at an early stage of the interview he was asked who and what he feared in Pakistan and he made no mention of this particular claim. In response, the applicant said that he did not mention it at that early stage because he thought that he would be asked further in the interview. He then said that this woman’s brothers would not let her marry him and he would suffer harm on that basis. She was Punjabi and he would not be allowed to marry her.
All of this evidence indicates inconsistency on the part of the applicant with respect to his protection claims at these various earlier stages and with the account he gave to the Tribunal at the hearing held on 17 October 2019. With respect to a fear of harm from the MQM, while the applicant claimed with respect to his first protection visa application that he had been attacked by people from that party, to this Tribunal, the applicant said that he had never been attacked, hit or assaulted by anybody in Pakistan.
With respect to a fear of harm from the Taliban, it was not until the submissions of 19 August 2011, that the applicant advanced specific claims to have had adverse dealings with the Taliban, to have been specifically targeted by them and that they arrested members of his family. While the applicant advanced broadly the same claims to the first Tribunal and while, to the delegate in May 2014, he did claim to be of adverse interest to the Taliban, this was on the basis of speaking against them at a meeting in [Location 1], a claim not made prior to that interview.
In addition, to this Tribunal, while the applicant also mentioned speaking out against the Taliban at meetings in [Location 1], he said that he returned to Karachi following the shooting of one of his associates, a claim not made at any stage prior to the Tribunal hearing. Rather, to the delegate, the applicant said that he returned to Karachi after local elders warned him to leave. Finally, on this issue, the applicant told this Tribunal that no member of his family or relative had been the subject of demands from the Taliban to cooperate with them nor had any family member or relative been detained by the Taliban. That appears to be inconsistent with earlier claims that family members had been detained by the Taliban.
The applicant’s fear of harm from the brothers of a woman with whom he had been in a relationship in Pakistan was not mentioned at any stage before the applicant’s interview with the delegate in May 2014. The applicant’s claims in the statutory declaration of July 2011 about being of adverse interest to the Pakistan army because of his opposition to them, were not made in his first protection visa application form, at his interview with the delegate in April 2011 or to the first Tribunal. Further, those claims are in stark contrast to his evidence at the Tribunal hearing that he supported the army’s operations in the area and did not speak out against them.
As stated above, to this Tribunal, the applicant said that no member of his family or relative was arrested in Pakistan in contrast to his claims in his declaration that the army arrested members of his family in March 2009. Finally, claims made in documents submitted by the applicant in support of his request for Ministerial intervention, to the effect that his brother was wounded while travelling in a vehicle with family members, are inconsistent with the applicant’s claims to the Tribunal about a brother being fired at while travelling in a vehicle with a high profile leader of a political party.
Pursuant to s.424A of the Act, by letter dated 23 October 2019, the Tribunal put these concerns to the applicant. In response, in a statutory declaration made on 19 November 2019, the applicant submitted that he experienced many incidents of harm in Pakistan, a number of which related to similar types of events involving the same people and which, therefore, may have led to confusion. Even if it was the case that the applicant or family members suffered harm on a number of occasions, that does not excuse the striking inconsistency in the applicant’s evidence as set out above.
The applicant submitted that his immediate and extended family lived in [Location 1]. Whenever he felt he was not safe in that area, he would travel to Karachi. On many of those occasions, elders and the community would warn him to leave. This could be due to a fear of being attacked by the MQM, the Taliban, extremists or the Pakistan army. He would return to [Location 1] whenever he thought that it was safe to do so and never stayed permanently in Karachi. The applicant submitted that his accounts as to when and why he travelled to Karachi from [Location 1] did not relate to just one specific incident. The applicant submitted that, in 2009, an ANP associate was shot at by the Taliban while the applicant was in [Location 1] and, due to that incident, the applicant fled from the area and went to Karachi.
If it was truly the case that the applicant had to leave [Location 1] for his safety on a number of occasions when he was staying there, he could easily have given that evidence to this Tribunal when he appeared before it. To this Tribunal he related just one incident concerning the shooting of an associate, an incident he had never mentioned prior to the hearing before this Tribunal. If anything, the submissions made by the applicant in his statutory declaration of 19 November 2019, are very poor attempts on his part to try and conceal the obvious inconsistency in his accounts of his life in Pakistan.
The applicant submitted that people living in [Location 1] had ‘issues’ with all of the groups he mentioned above. At present his party and others were blocking the road to [Location 1] because they did not approve of the government. He opposed the presence of the Pakistan army in [Location 1] and spoke out against that when he was in Pakistan. The applicant conceded that, to the Tribunal, he said that he supported the operation undertaken by the Pakistan army in that area, but, in fact, that was incorrect and he gave that evidence because he was nervous and anxious during the hearing and did not properly understand the questions he was being asked. Rather, he submitted that the Pakistan army was looking for him because he took part in a roadblock stopping them from entering [Location 1].
If it was truly the case, that the applicant had taken part in a roadblock against the Pakistan army and spoke out against them, he would have given that evidence to this Tribunal. While he blames his mental state, he was able to previously advance these claims at a different stage and advance them in his most recent statutory declaration. His failure to do so at the hearing before this Tribunal is not credible.
The applicant submitted that it was common for the various groups trying to control [Location 1] to make threats and undertake violence to control the population. Members of his immediate and extended family were either directly or indirectly affected by those actions. With respect to the Taliban, the applicant said that at meetings he would speak out against them and he and his family refused to support religious extremists. As a result of this, the applicant and members of his family were either attacked or targeted by such groups. The applicant conceded that to this Tribunal, he said neither he nor any member of his family had been attacked, but, he submitted that this was incorrect. He submitted that members of his extended family were taken by the Taliban and are still missing. While the applicant makes these claims in his declaration, if he was relating a truthful account, he would have related those claims to this Tribunal and he did not do so.
With respect to the MQM, the applicant submitted that he campaigned as much as he could against that party and, as a result, but also because of his support for the ANP, members of the MQM would target, assault or threaten him and his immediate family. In this respect, he submitted that in 2008, members of the MQM fired shots into the crowd at an ANP rally and, as people fled from the scene, the applicant was knocked over and suffered a severe [cut]. He submitted that he was attacked by members of the MQM at an ANP rally in July 2010. Again, in these submissions, the applicant is merely making claims in a poor attempt to conceal the striking inconsistency in his evidence. While he now claims to have been attacked by people from the MQM and suffered injuries fleeing from them at a party rally, he did not advance those claims to this Tribunal even though he was given ample opportunity to do so.
The applicant submitted that his brother had been targeted on many occasions because of his political views and associations. In this respect, the applicant referred to a ‘first incident’ which occurred when the applicant was in Pakistan and in which men on motorcycles fired shots at a vehicle in which the applicant’s brother and his own family were travelling. The applicant then referred to a ‘second incident’ which occurred when the applicant was in Australia in which his brother was travelling in a motor vehicle with a high profile political leader and men approached and shot at them. The applicant said that he advanced the latter claim to demonstrate how dangerous it was for him to return to Pakistan and he was not trying to add to his evidence about the first incident.
The Tribunal rejects these submissions because the applicant could easily have related accounts of these two incidents at the hearing before this Tribunal if he was giving truthful evidence. As set out above, the applicant’s account of his brother being shot at given to this Tribunal was inconsistent with the account put forward in documents he had earlier submitted. His claim that there were two separate incidents is a poor attempt to conceal the inconsistency in his evidence.
In his declaration, the applicant submitted that the late introduction on his part of his claims about being in a relationship with a woman when he lived in Pakistan was due to a former representative advising him about the elements of the complementary protection criterion. Further, he said that the matter was personal and he was ashamed of what had occurred. The Tribunal rejects these submissions because the applicant could easily have advanced his fear of harm on this ground when he first applied for protection. While, at that time, advisers may have told him about the need for serious harm to relate to a convention ground, the Tribunal does not accept that would prevent the applicant from still claiming to fear returning to Pakistan on the basis of this relationship.
In his declaration, the applicant attributed the inconsistencies in his evidence to his mental state, the applicant referring to poor concentration, depression, nervousness and anxiety. He submitted that this caused him to not properly understand questions asked of him. In submissions dated 20 November 2019, the representative repeated these claims (in addition to repeating the claims made by the applicant in his declaration of 19 November 2019 with respect to the inconsistencies in his evidence). The representative added that he raised the applicant’s mental health with him due to his inability to focus on questions put to him.
In support of these claims, the representative provided ‘summaries’ of ‘psychological treatment’ dated [November] 2018 and [April] 2019 from a ‘[a person]’ employed by a local agency supporting victims of trauma. In these reports, the counsellor stated that the applicant experienced symptoms of high anxiety and depression, especially after the death of his mother and due to the uncertainties of his visa application.
The Tribunal has carefully considered this evidence and the submissions made by the applicant and his representative about his mental state. The inconsistencies in the applicant’s evidence are manifold and very significant. These inconsistencies span accounts given from as early as 2011 up to the hearing before the Tribunal held in October 2019. The Tribunal can allow for variations in accounts given at a number of stages over a long period, but, it is self-evident that the discrepancies set out above are not due to any genuine lapse of memory or anxiety. The inconsistency in the applicant’s accounts is due to the applicant’s lack of truthfulness as a witness. His lack of truthfulness is only further reflected by the submissions made in his most recent statutory declaration in which he advances new claims in an attempt to try and conceal these different instances of conflict in his evidence.
At earlier stages of the determination his protection claims, the applicant also attempted to explain the inconsistency in his evidence by blaming his representative for failing to put forward claims about which the applicant had instructed him, namely, his relationship with a Punjabi woman. Another claim advanced was that he did not go into detail at various stages. The Tribunal has considered these further purported explanations, but, they cannot overcome the sheer scale of the inconsistency in his evidence. Accordingly, these further claims are rejected.
The applicant’s knowledge of the ANP
When interviewed by the delegate in April 2011 with respect to his first protection visa application, the applicant was questioned as to his knowledge of the ANP. The delegate found the applicant to be vague and unconvincing on this issue. The applicant could not name the persons leading his party at the provincial level, a major party figure assassinated in August 2010 and the people from his party who held seats in the Sindh provincial government. The applicant was unable to say how many seats his party held in the national government.
At the hearing before the first Tribunal, the applicant was questioned as to his knowledge of the ANP. The first Tribunal found the applicant’s responses displayed a very limited knowledge of the party; knowledge that was inconsistent with his claims to have been involved with the party over a number of years. In this respect, beyond naming the president of his party in Sindh, the applicant could not name other prominent party members. In addition, the applicant was unaware of and knew nothing about the assassination of the provincial leader of his party in Karachi in August 2010, an event that led to widespread political violence.
At his interview with the delegate held in May 2014, in relation to his second protection visa application, the applicant was questioned as to his knowledge of the ANP. He had difficulty naming his party’s candidate in the area where he undertook his campaigning activities with respect to the election held in 2008. The applicant’s vagueness in this respect was further reflected in his evidence at the hearing before this Tribunal as set out above. The applicant could not remember the purpose of the elections held in 2008 and beyond naming a party candidate for Karachi or Sindh, could not give a positive or precise response as to the name of his party’s candidate, if there was one, for the area in which he was undertaking political activities.
Pursuant to s.424A of the Act, by letter dated 23 October 2019, the Tribunal put to the applicant that, to the Tribunal and at these earlier stages, he gave vague evidence when questioned about his knowledge of his party and politics in Pakistan. The Tribunal put to him that this vagueness appeared to be inconsistent with his claims to have undertaken political activities for his party over a number of years. In response, in his statutory declaration made on 19 November 2019, the applicant purported to address this concern. He claimed that he and his family supported the ANP, that they have been targeted by other groups for doing so and that political violence involving his party takes place regularly in Pakistan. The applicant did not explain his persistent vagueness exhibited at various stages of the determination of his protection claims, when questioned as to his knowledge of his own party.

As discussed above, both the applicant and his representative referred to the applicant’s mental state and this was also advanced as a reason for the applicant’s vague evidence about the party he claims to have supported in Pakistan. The Tribunal does not accept that the applicant’s claimed mental state can excuse his failure to respond properly to questions that related to a basic and rudimentary knowledge of the ANP. Rather, the Tribunal finds that the applicant’s vagueness can only be attributed to the lack of truthfulness on his part about undertaking political activities in Pakistan.
At earlier stages of the determination of his protection claims, the applicant purported to explain the vagueness of his evidence with respect to the ANP by claiming that he only answered what he was asked and that he was only a low level member focused on his local branch. None of those claims can overcome or explain the vagueness consistently demonstrated by the applicant at these various stages of the determination of his protection claims. This vagueness is inconceivable for someone claiming to have supported and undertaken activities for this particular party over a number of years.
FINDINGS
At the beginning of the hearing, the Tribunal put the applicant on notice that, although some or all of his evidence may have been found credible by the delegate, it remained the Tribunal’s task to decide for itself whether or not he was telling the truth and this was the purpose of the questions it would be asking him. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility cause the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.
Accordingly, the Tribunal disbelieves the applicant’s claims that he and any member of his family supported, was involved with or undertook activities for the ANP or any other political party. The Tribunal disbelieves the applicant’s evidence about him and his family spending periods of time in [Location 1] and the applicant undertaking activities there of any kind, political, community or otherwise. The Tribunal has no credible evidence about where the applicant lived in Pakistan apart from his and his family’s residence in Karachi. The Tribunal disbelieves the applicant’s claims about speaking out against the Taliban and the Pakistan army and undertaking activities of any kind in opposition to either group. The Tribunal disbelieves all claims made by the applicant about him or any member of his family, immediate or extended, being threatened, attacked or suffering harm of any kind. The Tribunal disbelieves the applicant’s claims about being in a relationship with a Punjabi woman and her brothers threatening him with harm on that basis.
In view of its credibility findings, the Tribunal disbelieves all claims made by the applicant at all stages in support of his protection claims. The Tribunal finds credible no more than that the applicant is a Pashtun male from Karachi where he lived in Pakistan. The Tribunal has no credible evidence before it that the applicant or any member of his family suffered harm in Pakistan. The Tribunal has no credible evidence before it that anyone in Pakistan seeks to harm him or his family. The Tribunal has no credible evidence before it as to why the applicant left Pakistan and why he does not want to return there. Because he is not a witness of truth, the Tribunal disbelieves the applicant’s claims that on return to Pakistan he will undertake activities for the ANP. The Tribunal finds that it has no credible evidence before it about the applicant’s political opinions.
In submissions dated 19 March 2012, in support of a request for Ministerial intervention, the representative submitted that the applicant feared harm due to his support for the ANP, as a member of a particular social group of people who hold views against the Taliban and a ship deserter. The Tribunal disbelieves the applicant’s evidence about supporting the ANP and opposing the Taliban. The Tribunal has no credible evidence about the applicant’s political views. Accordingly, there is no need for the Tribunal to determine whether or not the claimed particular social group exists. While the Tribunal understands that the applicant left the ship on which he was employed, he himself has not claimed protection on this ground. There is no credible evidence before the Tribunal that anyone in Pakistan seeks to harm this applicant on that or on any ground. The risk of him suffering significant harm because he left his ship is remote.
In reaching its findings on credibility, the Tribunal has also taken into consideration documents submitted by the applicant at various stages to support his protection claims. With submissions dated 1 June 2012 in support of the applicant’s request for Ministerial intervention, the representative provided letters [from] ‘[a person]’ of the ANP in Sindh, ‘[info deleted]’ who advised the applicant that if he returned to Pakistan he would be attacked by the MQM.[7] In these letters, the writer referred to the shooting of a party activist in March 2012 and the representative also provided a newspaper report of that incident.[8]
[7] See folios 184-185 of Department file B.
[8] See folio 188 of Department file B.
With these submissions, the representative also submitted a report dated [December] 2011 made by the applicant’s brother who complained that, on that date, while riding his motorcycle in Karachi, he was attacked by a number of men.[9] The representative also provided a report dated [December] 2011 issued by a doctor in Pakistan with respect to an examination of that person recording that he alleged that he had been assaulted.[10] The representative also submitted letters from three men originally from Pakistan and who all reside in Australia.[11] These men assert that the applicant is a good person, that he is their friend and that he is at risk in Pakistan.
[9] See folio 191 of Department file B.
[10] See folio 189 of Department file B.
[11] See folios 195 – 200 of Department file B.
The Tribunal has carefully considered the contents of all of these documents. However, as discussed above, the applicant gave inconsistent evidence about the purported attack on his brother. He gave consistently vague evidence when questioned as to his knowledge of the ANP and in all of the different respects discussed above, the applicant’s account of the events that he claims occurred in Pakistan and which caused him to apply for protection, has been strikingly inconsistent. Those inconsistencies span many various aspects of his account and not just those referred to in these documents. Accordingly, the contents of these documents do not overcome the Tribunal’s concerns about the applicant’s credibility and the Tribunal does not give evidentiary weight to them.
While claims are made about the risk of ANP supporters being harmed by the MQM, they do not assist the applicant because the Tribunal disbelieves his claims about supporting and undertaking activities for the ANP. While he has certain friends in Australia who claimed that he is at risk in Pakistan, for the reasons given above, the Tribunal finds that it has no credible evidence that anyone in Pakistan seeks to harm this applicant. Accordingly, their claims are rejected.
At the hearing, the applicant said that he had photographs depicting him and the Punjabi woman with whom he claimed to have been in a relationship attending a birthday celebration. The applicant offered to produce those photographs to the Tribunal. The Tribunal did not require the applicant to produce such documents because they would not demonstrate or corroborate his claims to have been in a relationship with this woman and his claims that her brothers wish to harm him on that ground. Such photographs would not overcome the applicant’s inconceivable failure to advance his fear of harm on this ground until such a late stage.
In a letter dated [March] 2011, a counsellor referred to the applicant reporting a range of stress-related symptoms, based on which, the counsellor assessed the applicant as not being capable of undertaking employment.[12] As discussed above, with submissions of 20 November 2019, the representative provided the Tribunal with reports issued in November 2018 and April 2019 by a counsellor with respect to the applicant’s mental state. The Tribunal notes that according to these recent reports, his symptoms relate to his mother’s death and the uncertainties as to the outcome of his application for a visa to be able to stay in Australia.
[12] See folio 111 of Department file B.
The Tribunal can well understand that a national of another country seeking to remain in Australia would be anxious about any attempt they make to achieve that outcome and would also be distressed by the death of a family member in their home country. However, that does not demonstrate that the claims that the applicant advances for leaving Pakistan and not wanting to return there are true. For the reasons given above, the Tribunal finds that those claims are false. It may well be that, with his immigration status in Australia resolved and joining family again in Pakistan, his symptoms of anxiety or depression will be resolved. At any rate, the applicant does not claim protection on the basis of his mental state.
In submissions of 20 November 2019, the representative asked that the Tribunal reconvene the hearing to enable the applicant to have another opportunity to relate his entire account of the events on which he seeks protection. The basis of this request was that the applicant would then have had the benefit of receiving treatment for his mental state. This request was made on the basis that it was the applicant’s mental state that caused him to give inconsistent evidence and be vague as to his knowledge of the ANP in the respects discussed above.
For the reasons given above, the Tribunal does not accept that the applicant’s mental state is the reason why his evidence was inconsistent and why his evidence as to his knowledge of the ANP was consistently vague. The Tribunal is satisfied that its concerns about the applicant’s credibility have arisen because he is not a witness of truth. Accordingly, the request from the representative to reconvene the hearing is rejected. The Tribunal adds that when the applicant appeared before it, he was well able to comprehend the Tribunal’s questions and respond to them. The Tribunal was able to question him closely and in depth about his protection claims. He had a meaningful opportunity to participate in the hearing.
To the Tribunal, at the conclusion of the hearing, the applicant said that he had been in Australia for almost ten years and had found good employment. He complained that should the Tribunal affirm the decision of the delegate there would be further delay in the resolution of his status through appeals in the courts that he would make. Whether or not the applicant chooses to pursue appeals in the courts in Australia is entirely a matter for him. While he may feel settled in some way in Australia through finding employment and the time he has been here, that does not demonstrate that there is a real risk that he will suffer significant harm in Pakistan.
In an application to a local welfare agency in 2011, the applicant claimed that he borrowed money to be able to arrange his departure from Pakistan and to be able to travel to and enter Australia.[13] The first Tribunal also referred to the applicant claiming financial hardship in Pakistan, but, the first Tribunal found that would be due to prevailing economic conditions there. Because he is not a witness of truth, this Tribunal finds that it has no credible evidence about the applicant’s financial circumstances in Australia or Pakistan. The risk of him suffering significant harm on this ground is remote.
[13] See folio 115 of Department file B.
The Tribunal now turns to an assessment of the risk of the applicant suffering significant harm on the only grounds that remain for consideration, namely, that he is a Pashtun man who will return to Karachi. There are approximately 30 million Pashtuns living in Pakistan.[14] Pashtuns form a large community in Karachi.[15] They participate in both public and private sector activity.[16] In terms of the treatment of Pashtuns based solely on their ethnicity, DFAT advances the following assessment (verbatim):
‘DFAT assesses that Pashtuns face a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab. Pashtuns in Pashtun majority areas or locations where individuals have family or social connections face a low risk of official discrimination. Pashtuns who are not Turis, or are not linked to the ANP, face a similar risk of violence as other ethnic groups in Pakistan in the same locations.’[17]
[14] See DFAT, Country Information Report Pakistan, 20 February 2019. At 2.7 DFAT states that the population of Pakistan is 207.7 million. At 2.9 DFAT states that Pashtuns comprise 15.4 per cent of the population of Pakistan.
[15] See DFAT, Country Information Report Pakistan, 20 February 2019. At 3.5 DFAT states that the largest Pashtun communities live in Karachi, which hosts the largest population of Pashtuns in the world.
[16] See DFAT, Country Information Report Pakistan, 20 February 2019. At 3.6 DFAT states that Pashtuns are represented at all levels of society and Pakistan historically dominating employment in the transport sector, but, also, being well represented in Pakistan's security forces.
[17] See DFAT, Country Information Report Pakistan, 20 February 2019, at 3.12. With respect to Pashtuns most likely to receive the discrimination referred to in this quotation, see also DFAT, Country Information Report Pakistan, 20 February 2019, at 3.10. There DFAT refers to Pashtuns migrating within Pakistan to cities like Karachi and Lahore where they could be subjected to ‘ethnic profiling’ and demands for bribes from security officials as well as the ‘blocking’ of their identity cards.
On the subject of violence and security more generally in Pakistan, available country information indicates that there continues to be a significant decline in the number of reported terrorist attacks in Pakistan.[18] This decline in terrorist violence has also occurred in Karachi.[19] This decrease in Pakistan, including Karachi, has been attributed to various security operations launched by the Pakistan army since 2014.[20] This has also led to a significant reduction in serious crime in Pakistan especially in Karachi.[21] Security and law enforcement personnel were the targets of the largest number of attacks in 2018, the most lethal attacks being against political leaders and workers.[22] Violence in Karachi also concerns supporters and members of different political parties attacking each other, including the ANP.[23]
[18] See DFAT, Country Information Report Pakistan, 20 February 2019. At 2.67, DFAT states as follows:
‘Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend.’
See also United Kingdom Home Office (‘UKHO’), Country Policy and Information Note Pakistan: Security and humanitarian situation, including fear of militant groups, Version 2.0, January 2019. At 2.4.11, the UKHO states that in 2017, the overall security situation improved and that between 2014 and 2017, the total number of violence related fatalities declined by over 73%.
[19] See DFAT, Country Information Report Pakistan, 20 February 2019. At 2.69 DFAT described the decrease in attacks in Karachi, compared to 2017, as ‘62 per cent’.
[20] See DFAT, Country Information Report Pakistan, 20 February 2019, 2.75 – 2.81. See also United Kingdom Home Office (‘UKHO’), Country Policy and Information Note Pakistan: Security and humanitarian situation, including fear of militant groups, Version 2.0, January 2019. At 2.5.2 the UKHO states that the numerous military operations undertaken by the Pakistan government has brought a significant reduction in insurgent activities and terrorist related incidents.
[21] See DFAT, Country Information Report Pakistan, 20 February 2019, 2.99. See also United Kingdom Home Office (‘UKHO’), Country Policy and Information Note Pakistan: Security and humanitarian situation, including fear of militant groups, Version 2.0, January 2019. At 7.1.4, the UKHO states:
‘Although Karachi was reported as one of Pakistan’s most violent cities, the CRSS stated in its National Action Plan (NAP) audit report (CRSS NAP report), dated June 2018:
‘A major source for decline in violence in Pakistan has been the improving situation in Karachi. Although the city was once considered a hub for political/religious militancy and urban crime, Karachi’s security situation has improved dramatically since 2014. Data collected by the CRSS Annual Security Report of 2017 confirms these trends. Target killing alone fell from 1,671 fatalities in 2013 to 84 in 2017. Meanwhile, terrorism incidents have also reduced drastically in the last two years.’
[22] See DFAT, Country Information Report Pakistan, 20 February 2019, 2.70.
[23] See DFAT, Country Information Report Pakistan, 20 February 2019. At 3.3, DFAT states as follows:
‘The steady migration of Pashtuns from Khyber Pakhtunkhwa and the former FATA to Karachi has reportedly contributed to violence between the armed wings of major political parties, including the Mohajir-based Muttahida Qaumi Movement (MQM, see Mutahidda Qaumi Movement), the Sindh-based Pakistan People’s Party (PPP), the Pashtun-based Awami National Party (see Awami National Party (ANP)), and the TTP.’
From this country information the Tribunal draws the following inferences. The applicant comes from a large Pashtun community in Karachi where, according to the evidence the Tribunal finds credible, he lived all of his life in Pakistan. There is no credible evidence before the Tribunal that the applicant suffered discrimination in Karachi and the Tribunal infers on the basis of the country information that the risk of him suffering discrimination of any kind let alone discrimination that would amount to significant harm is remote.
Country information indicates a significant reduction in militant or terrorist-related violence in Pakistan, including in Karachi where there has also been a significant decline in criminal activity. While violence may continue between supporters of different parties, the Tribunal disbelieves the applicant’s claims about supporting and being involved with the ANP. Accordingly, on all of these grounds, the risk of him suffering significant harm on return to Karachi as a Pashtun male is remote.
At the hearing, the Tribunal discussed this country information with the applicant and put to him the inferences that the Tribunal draws from that information. In response, the applicant said that he agreed that the security situation in Pakistan was improving but, he remained afraid of the brothers of the woman with whom he had been in a relationship in Pakistan. The Tribunal disbelieves the applicant’s claims about being in a relationship with a woman in Pakistan whose brothers want to harm him on that basis. Accordingly, the Tribunal finds that its inferences drawn from country information are correct and there is not a real risk that the applicant will suffer significant harm on return to Pakistan.[24]
[24] The Tribunal is aware that earlier decision-makers with respect to his protection claims, being, the delegates who determined his applications and also the first Tribunal, made reference to country information to assess the risk to the applicant in Pakistan. This Tribunal prefers the country information set out in this decision as the most accurate basis on which to assess the risk of the applicant suffering significant harm in Pakistan. That is because it is the most recent.

For all of the reasons given above, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, Pakistan, there is a real risk that the applicant will suffer significant harm. For the reasons given above, the Tribunal concludes that the decision under review should be affirmed.
For the sake of completeness, the Tribunal records that the delegate issued a certificate restricting the disclosure of certain documents on Department file B. There was no need for the Tribunal to raise this with the applicant because these documents comprise nothing more than administrative records relating to the processing of the application, copies of parts of the protection visa application form listing the applicant’s family members and an assessment made in relation to the applicant’s request for Ministerial intervention. With respect to that latter matter, the documents in question merely repeat the grounds on which the delegate refused the applicant’s first protection visa application and the grounds on which the first Tribunal affirmed that decision.
The contents of all of these documents are not relevant to the grounds on which this review has been determined and they are not adverse to the applicant. Further, disclosure was restricted on the basis that the documents contained ‘information relating to an internal working document and business affairs’. This is not satisfactory justification for the delegate's claim that disclosure of this information would be contrary to the public interest. Accordingly, the certificate in question is not valid.
For the sake of completeness, the Tribunal also records that the delegate issued a certificate restricting the disclosure of certain documents on Department file A. One such document is nothing more than an administrative record kept by the Department that has no relevance to the grounds on which this review has been determined. The contents of the document are not adverse to the applicant. The delegate also sought to restrict disclosure of documents that emanate from a media publication in Pakistan relating to candidates for elections in the area in Karachi in which the applicant claimed to have undertaken activities for the ANP.
While that information is relevant to the grounds on which the applicant has claimed protection, for the reasons already given, the Tribunal disbelieves the applicant’s claims to have undertaken activities for that party. Information about candidates for elections in that particular area is not, of itself, adverse to the applicant. The delegate claimed that all of this information related to ‘an internal working document and business affairs’. The information obtained from the media publication could not possibly be classified in that manner. Overall, the classification of the information subject to the certificate issued by the delegate falls well short of amounting to satisfactory justification for the claim that disclosure of this information would be contrary to the public interest. Accordingly, the certificate is not valid.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(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.
Paul Millar
Member

[2019] AATA 6682

12 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction