1613592 (Refugee)

1613592 (Refugee) [2019] AATA 5907 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613592
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Justin Meyer
DATE:28 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 June 2019 at 10:16am
CATCHWORDS
REFUGEE – protection visa – Pakistan – race – Pashtun – assisted in Peace Committees – assisted in fighting the Taliban – father’s death in suicide bombing attack – mental health issues – credibility issues – delay in applying for protection – answers in previous visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 claims to be a citizen of Pakistan, applied for the visa on 30 July 2014 and the delegate refused to grant the visa on 2 August 1987.
The applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence Mr [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicant has a well-founded fear of persecution or a real chance of significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The delegate made findings from these claims:
·     He is a Pashtun and was born in Malakand in Khyber Pakhtunkhwa, Pakistan. The situation for Pashtuns is very difficult. There have been many bombing incidents in Pashtun areas affecting the Pashtun people.
·     He has [a number of siblings]. [Sibling 1] is a government employee in [District 1]. [Sibling 2] is a [Occupation 1] in [Country 1]. [Sibling 3] is studying [a Qualification in Subject 1]. [Sibling 4] is married and living in Islamabad.
·     In around 2009 the Taliban attacked his area, and the community came together and formed peace committee to defend themselves. He took part in peace committee activities by patrolling the streets in groups of 10 to 15 people.
·     In around June 2010, because of the army's operation against the Taliban, he and his family became internally displaced. Although some residents have moved back home, he and his family have not returned since they left the area.
·     His father was killed in a suicide bomb attack in 2012 because he was a government employee. Militants considered government employees as infidels. As his father was killed on the job, [Sibling 1] was offered a position in the same government department where his father worked. [Sibling 1] accepted this offer because it was a source of income for the family.
·     After the death of his father, his family was under a lot of stress. He came to Australia to get out of Pakistan. He planned to complete his studies and apply for a work visa to remain in Australia. Then, he found out about protection visas and decided to lodge the current application.
·     He fears harm from the Taliban who claimed responsibility for the killing of his father. If he returns to Pakistan, he fears that he will be killed just like his father.
The applicant made these additional claims in writing to the Tribunal on 14 July 2016
·     He ‘belongs’ to the remote village of [Village 1] in the northern province of Khyber Pakhtunkhwa. He is one of [a number of siblings]. By profession the applicant is a [Occupation 2]. One [sibling] is a [Occupation 1], and [Sibling 3] brother is studying for a [Qualification in Subject 1]. The applicant’s father was a government employee and was martyred in a suicide bomb in 2012, while on duty.
·     The family were displaced from their home in 2009-10 when a military operation was started in response to the ongoing terrorist activities in the region. The applicant’s father, being a government employee, was at a high risk and there were serious threats to the family. They were forced to leave their home and village. As they were forced to leave their home, they settled in a camp in Mardan which was operating for internally displaced personnel due to the operation against the militants. They received government internally displaced relief cards, as they were left with nothing and had to rely on government aid.
·     His father was a government employee in one of the sensitive regions of [District 1] and they have received several threats in the form of letters and phone calls from militants. Militants considered government employees as their enemies and killed several of them. It was also a prevailing thought that the people working for the government are infidels.
·     There were several peace committees in the applicant’s village. The applicant was an active member of several of these and was becoming a target for the militants. He was held several times by the militants and was threatened as a consequence of trying restore peace in the village. As he was being tortured continuously and he had no option but to leave the country as militants were following them everywhere in the country. That is when he applied for a [temporary] visa to come to Australia, which he was granted. He left for Australia [in] December 2013. The applicant completed a six months English language course from [University 1]. His plans were to return to Pakistan after the completion of the course. When he informed his family, he was told that his [siblings] have left the country and were going to settle in [Country 1]. He also received several threats and he left the country.
·     One of his [siblings] who is still in Pakistan is living anonymously out of the village with his mother in the city of Peshawar. They told the applicant about the hardships they were going through and suggested not to come back. He became extremely depressed and had to consult a psychologist as well. He is still in a very depressed state and had no option but to apply for a protection visa. He is scared for his life and his family's life.
The applicant made these additional claims in writing to the Tribunal on 26 February 2019
·     He arrived at Australia [in] December 2013 holding a [temporary visa]. In Australia he completed ‘ELICOS’ English from January 2014 until June 2014 and [Qualification in Subject 2] from [Institution 1] in about March 2017
·     In July 2014 he lodged his protection visa application. In the meanwhile, he also applied for a further [temporary] visa and that application was refused.
·     He belongs to a well-respected, educated family from [Village 1] in Malakand Division. His ethnicity is Pashtun ([specified tribe]). Members of his family belong to different political party. His uncles are supporters of [Political party 1], his father was a supporter of [Political party 2] and he personally supported [Political party 3]. His father worked as a [Occupation 3] and his uncle [Mr B] is a retired [Occupation 4]. His father and uncle were elders of the area and they would attend Jirga between disputing parties in their area.
·     Talibanization began in Malakand Division including surrounding district of Swat, Bajaur, Buner and Dir in about 2005/06. They targeted the influential people of the area including governmental officials. The applicant’s family members were against their ideology and refused to obey their orders. On many instances they asked the applicant’s father to resign from his work and to join their organisation. They also asked the applicant’s father to give them his children to join their organisation - which he refused.
·     Towards the end of 2008 a local “Lashkar” (Tribal Militia Force) was formed in his village and his father and uncle became members of this group. The applicant also supported this “Lashkar". The role of this group was to protect his village from the Taliban. One day in about early 2009 a group of Taliban took the applicant to their base, and they beat him with boots and gun butts asking him to stop working against them. He was later set free and continued his activities for “Lashkar”.
·     In about February/March 2009 residents of Swat left the area and most of inhabitants of Swat came to his village. A local committee was formed in his village to assist these people. They provided accommodation, food and other necessities of life to them. The applicant’s [sibling] provided them health care as he is a [Occupation 1]. The applicant would help these people by providing them food twice a day. The Taliban took the applicant to their base again at end of March 2009 and beat him again. They asked him to stop working against them and when he promised to stop he was released after two days.
·     The army began an operation against the Taliban in about mid-2009. Upon request from the army the applicant and his family left their house as Internal Displaced Peoples (IDPs). In Mardan they were issued UNHCR rations card and a bank card as assistance during this time. Copies of a UNHCR rations card and bank visa card were attached to his submission. The army claimed victory against the Taliban in about August 2009 and they asked the inhabitants to return to their villages. The applicant and his family went back to [Village 1] in about end of August 2009.
·     When the local population returned to the region, the army remained in control. In fact, [Village 1] remains militarised to this day. The army's first move when people returned was to convene the eldest from amongst the local population, and to consult with them regarding ongoing self-defence activities. The applicant’s father and uncle were called to such meetings with the army on their return. The name given to these groups was "Peace Committee" or "Defence Committee" variously depending on the area in Malakand Division. In [Village 1] it was just called the "Peace Committee". The first president of this committee was the applicant’s uncle [Mr B] who was previously a [Occupation 4].
·     The applicant’s father and uncle were crucial in the early days of the committee’s development. One of the first roles was the spread of word about the existence of the committee and the army's plans, and to organise the village into sub committees by neighbourhood. The various committee members would draw up rosters for neighbourhood patrols. The applicant is the male member of his father family. It is entirely expected that he stand with his father in all his responsibilities and even perform them in his place. The applicant’s father was a very respected man. He was leading people by example and attempting to instil bravery in them by actively participating in night patrols. It would have been a matter of shame if the applicant had not done the same thing and helped his father, whenever the applicant’s was in the village. That is what the applicant did.
·     The applicant’s the peace committee would work in collaboration with Pakistani army to stop Taliban re-entry into the area. The applicant also joined this committee and took part in night watches and other activities held by the committee. They assisted the army by identifying Taliban militants, Taliban sympathizers in the village and showing them houses of Taliban. [Village 1] is a big village with a population of approximately [number] people, residents of the village are very close knit, and one can easily detect if an outsider of a Taliban sympathizer was in the mix. As a result long-term residents of [Village 1] were proven a useful to aid the army and the applicant, including family members, provided whatever support the army asked the applicant for.
·     The Taliban was out of the scenes, but they continued to target government officials, peace committee members and anyone else who opposed them. In about November 2011 the applicant’s father received a threatening call from the Taliban. They asked the applicant’s father to leave his job and to stop them from supporting the committee. The applicant’s father hung up the call and asked the applicant and his [siblings] to be careful, but the applicant continued his work for the peace committee as he was of the view that restoration of peace and stability is more important in his area.
·     [In] December 2011 when his father got out of his residential quarter at [District 1], he saw a poster stuck at the door asking the applicant’s father to leave his job, pay one million Pakistani rupees and to give them his son to join their organisation. The applicant’s father lodged a police report and a copy of the report with English translation as lodged with the Tribunal. A few months later [in] May 2012 the applicant’s father was travelling with his colleagues from his residence when a suicide bomber “struck him off” [sic] killing the applicant’s father on the spot and injuring many more.
·     The death toll from this attack later reached [number]. The applicant’s father’s killing was a big loss to the family. A newspaper article confirming this attack and killing of the applicant’s father was attached to the submission per this link: [Source deleted]
·     After the applicant’s father death he and [Sibling 2] continued supporting the committee because his family also became a victim of Terrorism just like many other people in his area. He was threatened twice over the phone by Taliban to stop supporting the army. Due to such threats he left his country and came to Australia in December 2013. Whilst in Australia [Sibling 2] told him that he was threatened by Taliban to stop working for committee and join their organisation so he can treat members of Taliban. The applicant told his [sibling] to leave the country and he] applied for a job in [Country 1] and went to [Country 1] in about mid-2014.
·     As he left his home country, the militant then started targeting [Sibling 3] He was threatened via threatening letter in August 2017 to join their organisation. In about mid October 2017 he came to the applicant’s village to have a look at their house. On his way there some unknown gunmen open fire on him. He was lucky to escape unharmed. No one can imagine the stress and tension at that time when a person and their family are not safe in their home country. A police report with English translation of this incidence was attached with the submission.
·     The applicant is very stressed due to the situation the applicant faces back home. The applicant’s mental situation has deteriorated since his father’s killing. The applicant has been seeing a psychiatrist since he came to Australia. The applicant has been diagnosed with post-traumatic stress disorder (PTSD), which he believe stems from his experience in Malakand Division. The applicant suffers from memory loss, The applicant became frightened quickly. The applicant has headaches and feels a lot of stress and worry, Whenever the applicant thinks about Pakistan and the thoughts of returning, his symptoms exacerbate. Through counselling and medication, the applicant feels that he is in a better place, but the applicant will not be able to receive this treatment if the applicant is returned to Pakistan. If the applicant cannot control his symptoms, the applicant fears that the applicant will act in a way that will bring attention upon him by members of the Taliban. A detailed psychological report was attached to his submission.
·     The applicant’s mental situation has deteriorated, and the applicant currently requires psychological treatments. Together with this hardship it is not practicable, nor reasonable for the applicant to resume a life in Pakistan and to relocate to a country, the applicant fears persecution and harm. He is targeted by Taliban due to his imputed political opinion and our work against their organisation. Taliban are present in every part of the country. There is no place in the country where the applicant could live safely.
Psychologist’s report of 25 February 2019
[Mr C], a registered psychologist, wrote that:
·     The applicant first presented [in August] 2014, and [in May] 2015. The applicant re-presented [in December] 2018, and for two further consultations after this date.
·     The applicant first attended due to concerns regarding his ability to pursue his academic studies to his potential, as his mental health status was significantly compromised due to his personal circumstances.
·     Re-presenting in December 2018, the applicant stated as a goal wanting to address his chronic depressed state with psychological treatment.
·     With his GP, the applicant has a mental health treatment plan that identifies depression as the focus of psychological treatment.
·     The applicant’s current psychological health status was formally assessed using psychometric instruments, and with a structured interview schedule.
·     The applicant arrived in Australia from Pakistan in December 2013, on [a temporary] Visa. Following the completion of an ELICOS course at [University 1] in June 2014, the applicant commenced the [Qualification in Subject 3] at [University 1] [in August] 2014. The applicant transferred his academic studies to the [Qualification in Subject 2] at [Institution 1] in March 2015, which he successfully completed in 2017.
·     The applicant described experiencing prolonged emotional distress, and compromised level of functioning whilst residing in Pakistan, beginning in 2009.
·     The applicant stated that he experienced further deterioration in his psychological health following his arrival in Melbourne, in December 2013.
·     The applicant is from [Village 1], in the Khyber Pakhtunkhwa (formerly North West Frontier) province in Pakistan. This is a politically unstable region of Pakistan, with ongoing military insurgency. The applicant mother [and a number of siblings] reside in Pakistan. The applicant also has a [sibling] who resides in [Country 1]. The applicant expressed his ongoing concern regarding his mother's and [siblings’] welfare, as they are internally displaced in another town in the same province, due to receiving written threats to their lives if they do not join the Taliban. The applicant's father died in a suicide bomb blast, in Pakistan, in May 2012, aged [age] years old. This incident occurred at a government agency office at which the applicant 's father was employed. Responsibility for this attack was claimed by the Pakistani Taliban. This was a significant psychological loss to the applicant and his family.
·     In addition, the applicant described directly experiencing incidents of violence and actual death (witnessing public execution by firing squad and subsequent hanging at public square, encountering hanged corpse whilst heading to the local market) whilst residing in [Village 1], Pakistan, between 2009 and 2013. The applicant stated that he was recently informed by his mother that an attempt was made on his younger [sibling’s] life in 2017, as he was the target of gun fire. The applicant's family informed the local police of this incident. These experiences are outside the range of normal daily occurrences, in which the person experiences a direct threat to their safety and/or that of another person.
·     The applicant stated that he is experiencing depressed mood, negative rumination, disturbed sleep, nightmares, appetite loss, inability to focus and concentrate, social withdrawal, loss of interests, low energy levels, tow self-confidence, self-doubt, low self-worth, hopelessness, helplessness, anxiety, fear, flashbacks of past trauma, heart palpitations, excessive sweating, headaches, trembling, impatience, frustration, anger outbursts, feeling out of control, ongoing worrying regarding his family's safety, and prolonged uncertainty regarding his legal status in Australia impacting on his future outlook and aspirations. The applicant's protection visa application in July 2014 was refused in July 2016.
·     Of particular concern is the presence of thoughts of self-harm and suicidal rumination (with a plan), during periods of increased emotional distress. The applicant disclosed experiencing thoughts to cut and stab himself, and to overdose on medication. To this date, the applicant has not acted on these thoughts, as self-harm and suicide are against his religious beliefs as a Muslim.
·     A formal assessment of The applicant 's psychological state utilising the Depression, Anxiety, and Stress Scale (DASS-42) indicated overall levels of depressive, anxiety, and stress symptoms to be within the "Extremely Severe" range, in comparison to that experienced, on average, by adults within the general population. Results of the administration of the Impact of Event Scale-Revised (IES-R) indicated the presence of symptoms of Intrusion and Hypervigilance at the 'Severe to Extremely Severe' ranges, and symptoms of Avoidance at the 'Mild' range. These symptoms are characteristic of the presence of Post-traumatic Stress Disorder (PTSD). The applicant has been prescribed Escitalopram (10mg), an anti-depressant medication, by his GP Dr [D].
·     The applicant 's exposure to multiple instances of violence and death meet the DSM-5 diagnostic criteria of 309.81 Post-traumatic Stress Disorder, with Dissociative Symptoms:
A.Exposure to actual or threatened death, serious injury; in the following ways: 1. Directly experiencing the traumatic event.
B.Presence of one (or more) of the following intrusion symptoms associated with the traumatic event, beginning after the traumatic event occurred:
1.    Recurrent, involuntary, and intrusive distressing memories of the traumatic event.
2.    Dissociative reactions (e.g. flashbacks) in which the individual feels or acts as if the traumatic event was recurring.
3.    Intense or prolonged psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
4.    Marked physiological reactions to internal or external cues that symbolise or resemble an aspect of the traumatic event.
C. Persistent avoidance of stimuli associated with the traumatic event, beginning after the traumatic event occurred, as evidenced by both of the following:
1.    Avoidance of, or efforts to avoid distressing memories, thoughts, or feelings about, or closely associated with the traumatic event.
2.    Avoidance of, or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings about, or closely associated with the traumatic event.
D. Negative alterations in cognitions and mood associated with the traumatic event, beginning or worsening after the traumatic event occurred, as evidenced by the following:
1. Inability to remember an important aspect of the traumatic event (typically due to dissociative amnesia).
2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world.
3.    Persistent negative emotional state (e.g. fear, anger, guilt, shame).
4.    Markedly diminished interest or participation in significant activities.
5.    Feelings of detachment or estrangement from others.
6.    Persistent inability to experience positive emotions.
E. Marked alterations in arousal and reactivity associated with the traumatic event, beginning or worsening after the traumatic event occurred, as evidenced by the following:
1.    Irritable behaviour and angry outbursts, typically expressed as verbal or physical aggression toward people or objects.
2.    Reckless or self-destructive behaviour.
3.    Hypervigilance.
4.    Exaggerated startle response.
5.    Problems with concentration.
6.    Sleep disturbance.
F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H. The disturbance is not attributable to the physiological effects of a substance (e.g. medication, alcohol) or another medical condition.
·     The applicant experiences psychological symptoms that are characteristic of those seen in individuals following exposure to a traumatic event/s. Therefore, the incidents of violence and death directly experienced, together with the death of his father in a suicide blast, have been perceived as emotionally traumatic by the applicant. He experiences chronic PTSD symptomatology at an overall 'severe to extremely severe' range of intensity.
·     The goals of psychological treatment to date have been to restore the applicant 's perception of safety and trust, reduce negative rumination by focusing on facts alone, develop effective coping strategies when experiencing PTSD symptoms by orienting in current space and time, restore self-confidence and a positive sense of self (personally, socially, professionally), instil hope, empower his person with constructive decision making, develop daily structure and goal setting based on self-care and individual interests, and regularise sleep with the use of sleep management guidelines. The applicant was provided with written information regarding PTSD, as developed by the Australian Psychological Society (APS). Recently, the applicant has secured casual employment at a [workplace]. This is providing the applicant with a sense of accomplishment and control regarding his present circumstances.
·     The applicant s psychological state remains significantly compromised. The applicant’s ongoing experience of uncertainty regarding his legal status in Australia is a significant life stressor that contributes to the applicant’s psychological vulnerability and compromised emotional resiliency. Although the applicant is motivated to pursue psychological treatment, any adverse life events beyond his immediate control would cause significant psychological harm and pose a threat in the form of an increased likelihood of self-harm and/or suicide, as the applicant experiences thoughts of self-harm and suicidal rumination when in heightened emotional distress.
The applicant’s oral evidence in the hearing and analysis

The applicant said that he was taking antidepressants and had difficulty in understanding and felt stressed at times. He said that he had seen a doctor in the last two to three months. He said that he had seen a psychologist this year. He said that he had been receiving counselling and have been told to write down his worries before he went to sleep. When asked whether this helped he said that it sometimes helped.
The applicant said that when the operation against the Taliban and began anxiety and stress occurred.
The applicant said that he was a [Occupation 1] had worked in [a workplace] in Peshawar. He was [age] years old at the time of the hearing. He is Pashtun and both parents are Sunni Muslims. He confirmed his other family details as per his written evidence.
He confirmed his written evidence that his father uncle [sibling] and himself were serving on peace committees. He said his father served as the chairman of a peace committee over a population of [number] people. He said his father was involved in patrol. He said that he had stopped his involvement when he left the village in 2012. He said he went to university and studied.
He said the suicide attack killed [number] people and the Taliban and took responsibility. I asked the applicant why the attack took place. He said at that time the Taliban thought that the government officials were against the Taliban and were opposed to the Islamic fundamentalism. I asked the applicant whether the other [number] victims of the attack were government officials. He said some were government officials and some were local people.
I asked the applicant whether the Taliban was trying to kill anybody in particular. He said it was his father and other people as well.
I drew the applicant’s attention to the special report of the political agent which he had provided to the Tribunal for May 2012. It had a list of the victims. They were people ranging from [age] years old to a [age]-year-old. There were teenagers noted. Some were 13 and 14 years old. I asked if they are members of the public. He confirmed that they were. He said it occurred in the main market or bazaar. He said some victims were government officials and some were members of the general public.
I drew the applicant’s attention to the news article that he had sent to the Tribunal: [Source deleted]
In particular:
“The suicide bomber, who according to eyewitnesses was aged between 14-18 years, rushed to a shop in the main Khar bazaar where [Mr E] and [Mr F] were buying telephone cards. It was clear he was following their movements.”
The applicant said these targeted individuals were special police force officers of a particular rank who were the intended victims. I noted from the report and the government document submitted that the victims included a person in their [age], a teenager and a [age] year-old. He agreed that these were innocent bystanders in the bazar. From these discussions I conclude that the applicant’s father was not the (or an) intended victim of the attack and that innocent people, including his father were collateral damage in the attack.
The applicant said his father had been previously threatened – that he must leave his job and give up a son and money to the Taliban militants. That threat was done over the phone and in a letter. He refused. I asked the applicant if the attack occurred because he refused. The applicant said this was indeed the case. The police were said to have investigated as they do in Pakistan, but ineffectually.
The issue here is that the perpetrators seem to have been aiming the attack at two other individuals – not the applicant’s father. They may have wished collateral damage to have been caused to people they were against, but it is difficult to see how his father was specifically targeted. It thus causes the Tribunal to doubt that this evidence supports a view that the applicant himself as a family member would be vulnerable to such attacks or harm.
Further, the applicant noted that per his [sibling’s] police report [of] October 2017, he and his [siblings] had been threatened. The applicant reported to the police that in 2012 his father was killed and he and his [siblings] were threatened regularly. He said his [sibling] had been attacked in 2017 and went to the police. People had attacked him by shooting. I asked if the [sibling] saw them but he said he did not as they were hiding. I asked if he knew what kind of weapon was involved. He speculated it was a pistol but then said he had no idea. I asked how many shots there were. He said two shots. The [sibling] was near [their] abandoned family house trying to see what was occurring. I asked if he was going to the house by foot and the applicant said that he was in his car.
The evidence became more confusing when compared against the written submission of the applicant:
“In about mid October 2017 he came to the applicant’s village to have a look our house. On his way there some unknown gunmen open fire on him. He was lucky to escape unharmed.”
The applicant here wrote about the [sibling] going to the house. Yet in his oral evidence he states that he was just there and not going to the house. There is also a lack of knowledge of, or speculation about, the weapon and no sighting of the alleged assailants. There was later confusing evidence that the applicant’s [sibling] in mid-October 2017 saw potential assailants walking towards him somewhat later that month, and this led him to conclude that these were the same individuals. It was not apparent whether this occurred during the alleged visit to the house or at a later point and the matter was not cleared up by the applicant.
It is also incongruous that he did not know who the assailants firing shots were, but in the copy of the [sibling’s] report it states that:
“One week ago I was driving home in our car through [the] bazaar, as soon as I reached down to graveyard two veiled persons came out from [the] graveyard and one of them fired at me through his pistol.”
The applicant said that he only found out about this incident some months after the event as his family did not want to upset him. He said the matter was brought up with him ‘by accident’ over the phone. The [sibling] is [age] years old. The incident was reported after a few days to the police. I asked the applicant why the [sibling] waited to which the applicant replied that he was scared. He was worried about the repercussions such as that which happened to his father. The [sibling] did not know who the assailants were.
I asked the applicant whether his [sibling] had suspicions. He said his [sibling] had his suspicions that it was other people that had seen him in the main city.
However they could not be sure that it was these people – they were people that were staring at him. They were people in a public area who were staring at his [sibling]. I asked the applicant whether these people were connected to the police to which he replied, no, they were not people who were being bribed.
It is for applicants to make their case and one is left with an impression that the applicant has made an allegation that something definitely occurred yet there is little detail of substance to the claim. I have for example little basis to conclude that certain unnamed people who stared at him are the same people that allegedly fired at him. I have little basis to conclude that there was firing at him, especially when he alternated between claims that it was two shots from a pistol, or shots from a weapon that was not a pistol. The other issue is that his [sibling] is said to have told him about the event by accident, having earlier wanted to spare him the news. There was no clarity around how one person told another about an attempt on his life ‘by accident’ and the Tribunal is unable to speculate how this could occur. These concerns and incongruities lead me to conclude that these alleged events did not occur.
The applicant said he had been rung by the Taliban to join them. I put that I was puzzled why they thought he would join if they had killed his father and how enthusiastic he would be. Little detail was provided on this point by the applicant.
The applicant said the militants wanted [Occupation 1] people. They find not asked his [sibling] for money, but did ask his father. His [sibling] refused to join, but they asked again.
I asked the applicant if he had been physically harmed. He said in 2009 he was taken ‘to their place’ and beaten. I challenged the applicant on why he would be beaten. He said if the member did an internet search of 2008 the member would find that this was the worst year in the history of Pakistan. The Tribunal found this to be an impersonal answer. Although general lawlessness provides context the applicant appeared unwilling or unable to apply the situation to his personal circumstances other than to say their concern was with local “Lashkar” (Tribal Militia Force). Again personal application of the alleged harm to him was piecemeal.
Threats and harm to the rest of his family consisted of a threat to [Sibling 2]. He is a [Occupation 1] and needed to join the organisation. He refused. I asked why they would want a [Occupation 1] – he said they needed [specialised services]. The [sibling] refused. He is in [Country 1]. [Sibling 1] was threatened too. He was asked why did he take up a job in his father’s old office. The actual threat was not detailed further. Its consequences were not apparent.
I asked the applicant when the last time was that he had a threat. He said it was at the end of 2012 when he was telephoned, as earlier described.
In December 2013 the applicant reached Australia. He said he came to Australia by applying for a [temporary] visa.
I asked the applicant why he applied for a [temporary] visa. He replied: “because I was thinking this was the only way to get out of my country so I applied for a [temporary] visa.”
He said he started applying for the visa when he ‘got the attacks’ and he was accepted into [University 1]. By the time he had matters organised it was the end of 2013. He completed his Ellicos course. His enrolled original course of [Subject 1] was not listed as a skilled occupation course and he changed studies to a [Subject 2], which was. He now has a [Subject 2 qualification].
I asked the applicant why he waited until 30 July 2014 before putting in a protection visa application. The applicant said he did not know until then what a protection visa was. He said he communicated to an agent in Australia who said there was one way for applying for a protection visa so he made the application.
The applicant changed representative at a later point. After his protection visa refusal he obtained a new representative.
I asked the applicant how he found out about a protection visa. He said one of the agents in Australia told him and filled out the form for him.
The Tribunal has a number of concerns about the timing of the applicant’s protection application. Although visa applications can take some time to prepare and process, there appears to be little sense of urgency on the part of the applicant to apply for protection in Australia. The Tribunal considers that the applicant claims that threats were building up all the way through until December 2012, and yet another 12 months elapses before the applicant came to Australia.
The period that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear of persecution or significant harm.
I consider this to be a delay of some seven months in applying for protection. The delay is not my sole reason for doubting the applicant’s claims. There should be other reasons and I have provided these on the issues I have with the applicant’s credibility. The delay is significant when viewed with the other concerning claims of the applicant.
The particular circumstances of this case are that the applicant is highly educated and intellectually capable and yet seemed lacking in curiosity about applying for protection. I find that he was not ignorant about protection visas until several months after arriving in Australia. He claims to have been an internally displaced person in the past. One [sibling] is a [Occupation 1] who emigrated to [Country]. This could have easily triggered an inquiry as to how to permanently live abroad. The applicant almost certainly would have turned his mind to his various options of migration and it is difficult to accept that claiming refugee status was unknown to him. He appeared to know about the position of Pakistan in the world – for example he said that 2008 was undoubtedly the worst year ever for security in Pakistan. There is a sophistication of knowledge here that is incompatible with an alleged ignorance of protection visas. I find that the applicant simply wished to become student, and later wanted some other avenue to remain in Australia. Protection was then seen as the means. The reasons surrounding the delay, and given for the delay, are incongruous with a person pressingly concerned for their life and welfare as the applicant claims to be.
The applicant said his ethnic group was per his application form is [specified tribe], but he said the Taliban targeting against him was because he is Pashtun and also against the Taliban. He is unmarried and has no children. He said the authorities could not protect him, and they could barely defend themselves.
The applicant discussed his profile on defence committee or peace committees he claims to have served on. He said he did have a profile that was of interest to the Taliban – he had been involved in patrolling and helping ‘against these people’ in the end of 2008. He said ‘we are helping the people’.
The applicant was asked what he would do it he went to Pakistan. He said he had not thought about it. He was asked if he could go to another place other than his village. He said it was impossible because ‘these people were far too strong’.
I pointed out that the applicant was not a government employee like his father. He said there was family link and he had protected against Taliban. I put to the applicant that this was a long time ago. He said it still mattered.
Other than his [Occupation 1] [sibling] all other family had remained in Pakistan. I asked what the others stayed. He said that the [Occupation 1] [sibling] had been targeted by Taliban. [Sibling 1] had taken up work on the old workplace of [their] father as is customary. [Sibling 3] lived in a very restricted security area in Pakistan, but he did not think he was safe but took the risk because he has a family.
I asked if the PTSD of the applicant would affect his ability to avoid risky situations in Pakistan. The applicant replied no.
I indicated that Pakistan had 131 million people and yet he could not live elsewhere such as Karachi. He said the Taliban networks were too good for him to escape detection. He said that because he was Pashtun he might even be perceived as pro-Taliban. He might get identified as Taliban falsely
Country information was discussed including the DFAT country report on Pakistan of 20 February 2019 per: [Link deleted]
At 2.68 the report reads:
Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
At 2.81 the report reads:
Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations (see Judiciary, and Military and Intelligence Services). Nonetheless, militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces (see Military and Intelligence Services).
At 2.91 the report reads:
The frequency of sectarian attacks has reduced annually since the launch of Zarb-e-Azb and the NAP in 2014. The South Asia Terrorism Portal reports 16 incidents of sectarian violence killed 231 people and injured 691 in 2017, compared with 131 incidents killing 558 and injuring 987 in 2013 (2018 data not yet available). This trend continued in 2018, with a 40 per cent reduction in sectarian violence (12 incidents) compared to 2017.
Overall the impression is one of reduced sectarian violence, improved security and a more active agency and authority response to the violence of the Tehreek-e-Taliban Pakistan (TTP) and like groups. Whilst there is still danger, the security environment on this assessment appears to have improved for Pakistan citizens.
The applicant said that American soldiers were still there and there was no victory over the Taliban. I am not persuaded that this negates the overall trend towards greater security in Pakistan in recent years. This country information weighs against the applicant’s claim he has a well-founded fear of persecution or a real chance of significant harm.
PTSD, stress and harm on return.
I have given consideration to the applicant’s mental state at the time of the hearing. He was lucid throughout the hearing and could answer questions with confidence. At times he given time and breaks to compose his thoughts. Although the hearing was stressful to him and he was generally quietly spoken, he was capable of giving evidence competently. I have taken into account the report from [Mr C], a registered psychologist, who wrote that that applicant had chronic depressed state needing psychological treatment. The hearing was conducted so that there were breaks and questions were repeated were necessarily and questions were asked in a non-confrontational manner.
I do not have substantial evidence before me to suggest that the applicant would be unable to access treatment in Pakistan due to his ethnicity or for any other reason.
While the Pakistan mental health care system may have flaws in giving appropriate and necessary treatment I find that in and of itself this does not form discrimination, which when accumulated with other forms of discrimination amounts to persecution. A stretched or failing health system is not of itself a perpetration of an act or an omission against the applicant
Section 424AA of the Migration Act
Information was put to the applicant under section 424AA of the Migration Act about a student visa application that the applicant submitted. The Tribunal orally gave clear particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and it ensured that the applicant understood why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review. I invited the applicant to comment on or respond to the information; and advised the applicant that he may seek additional time to comment on or respond to the information; and if he sought additional time to comment on or respond to the information the review could be adjourned, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
I referred the applicant to his [temporary] visa application about studying in Australia (on page 2):
“I opted for studying in Australia for a number of reasons:
Studying in Australia promotes innovative, creative and independent thinking. I will learn to work as part of a team, to communicate effectively with others and to develop practical skills and intellectual abilities needed for global success. Time spend [sic] in Australia will provide me with a strong platform to build my career and prepare for the challenges of work back home.

As relayed, the information is relevant to the review in that it might point to a state of mind on the part of the applicant where he is happy to return to Pakistan and is happy to do so upon getting further education in Australia. This might lead me to be concerned whether he in fact has a well-founded fear of persecution. A brief adjournment was given for the applicant to consider and consult with his representative as he examined a photocopy for the relevant passage in the [temporary] visa application.
The applicant said in response that the [temporary] visa was applied for by an agent. A [temporary] visa was refused. He said that if he had mentioned about the problems and issues he had faced in Pakistan it is more likely that his visa would have been refused.
The Tribunal is concerned about this response. It seems to shift blame upon a migration agent for making an incorrect statement. Yet one is responsible for all claims made in an application. Further awareness is shown of the falsity of the claim because the applicant said he was afraid of the prospect of refusal if he answered correctly. The Tribunal is now in a position where it is being asked to conclude that applicant has not been truthful in relation to another application and it causes the Tribunal to doubt the applicant’s credibility and find that he is not telling the truth in relation to other important aspects of his case. Whilst it is possible that an applicant might seek to portray a false set of circumstances before the Department in relation to another visa class, in order to enter a country he later wishes to claim protection in, doubt still remains in the mind of Tribunal in regards to this protection visa. I am now in a position where I am unable to determine that the applicant has been truthful in respect of various aspects of his protection claim. Coupled with this are the credibility issues that I had earlier identified. As a result my concerns about the applicant’s response to the section 424AA matters remain. I therefore conclude that the applicant when making a [temporary] application visa was not fearful of returning to Pakistan and intended to apply newly learned skills to a career in his home country.
Documents
It is noted that in some cases, it may be appropriate for the Tribunal to form its own view on the authenticity of documents submitted by the applicant as detailed above. The Tribunal has had regard to the appearance, language or content of documents submitted and the likelihood of the document coming into existence in the way claimed by an applicant.
Whilst the Tribunal has not referred the documents to further examination by experts, and it does not refute their authenticity, the Tribunal has concluded that the documents within the circumstances of the credibility issues of the case do not give significant weight to the applicant’s claims.
Conclusions
The Tribunal finds that the applicant is from Khyber Pakhtunkhwa, Pakistan and would return there if returned to Pakistan. This is based on his evidence that he resided there in his village, [Village 1], and later in Peshawar.
The Tribunal notes that overall there is impression from country information of reduced sectarian violence, improved security and a more active agency and authority response to the violence of the Tehreek-e-Taliban Pakistan (TTP) and like groups. Whilst there is still danger, the security environment on this assessment appears to have improved for Pakistan citizens.
Even bearing in mind the issues with security this is a large measure of protection, and points to the applicant being effectively protected.
There is no reason to doubt that the applicant would be a beneficiary of these improved conditions if he returned.
The issues with the credibility of the applicant as raised earlier lead me to draw negative conclusions about the balance of his evidence.
The Tribunal is unable to conclude that the applicant was targeted by individuals where he suffered injuries or other harm in his life. I find that he was not harmed by the Taliban or other militants, nor was he detained by them, nor in early 2009 did a group of Taliban take the applicant to their base, beat him with boots and gun butts asking him to stop working against them.
I find the Taliban did not take the applicant to their base again at end of March 2009 and beat him again. They did not ask him to stop working against them nor did he promise to stop nor was he released after two days.
I find that the applicant’s father did not receive a threatening call from the Taliban. They did not ask the applicant’s father to leave his job and to stop them from supporting the committee.
I find that his father was not killed as a result of being targeted for the earlier reasons mentioned, I find his death was incidental to the attack in question.
I find he was not threatened twice over the phone by Taliban to stop supporting the army.
I find that [Sibling 3] did not tell him that he was threatened by Taliban to stop working for committee and join their organisation so he can treat members of Taliban.
I find that no militant started targeting [Sibling 3] via threatening letter in August 2017 to join their organisation or in any other way.
I find that the applicant was a lower level peace committee or village committee worker and played a minimal role in that respect around a decade ago. He was not high profile in this role and I do not accept that he would be of notice or attention to the Taliban or other militants, especially with the added passage of time since his departure from his village and from Pakistan. Concluding otherwise would involve engaging in conjecture.
The Tribunal is unable to conclude that the applicant’s [sibling] saw militants in 2013 and that he was shot at in 2013. I do not accept that amongst a myriad of people in his city he was able to identify individuals claimed to have targeted him without knowing names or recognising faces. The response to questions was more in the realm of speculation.
The Tribunal makes the following conclusions. The applicant is a Pashto speaking Muslim from Khyber Pakhtunkhwa in Pakistan. He is an unmarried man without children. He assisted peace committees from time to time, but several years ago.
I find that the applicant would not have a profile that is in of interest to the Taliban and/or militant and terrorist groups or any other persons now or in the reasonably foreseeable future. I find that the risk that the applicant may have faced in the past has reduced significantly if returned to Khyber Pakhtunkhwa, which is the location that would be his point of return (I find this is the place of return for the applicant – the Tribunal for this reason is not considering relocation principles). That is because of the security situation has been improving greatly since the applicant was last there.
Turning now to Pashtuns I observe that they comprise an estimated 15.4 per cent of the population of Pakistan, making them the second-largest ethnic group in the country after Punjabis. Pashtuns are found throughout Khyber Pakhtunkhwa and the former FATA, in Karachi, Peshawar, Balochistan, Islamabad, Lahore and other urban areas. They are a very large group of some 31 million and are represented at all levels of society in Pakistan, per the DFAT Pakistan report at [2.9] and [3.6]. I do not accept that this in and of itself attracts persecution for the applicant on what has been presented to the Tribunal. I note that DFAT at [3.7] states that the overall security situation for all Pakistanis, including Pashtuns, has improved in line with increased security across Pakistan. Although the TTP’s support base is primarily Pashtun and there has been official discrimination and racial profiling in terrorism-related arrests, a link was not drawn between this and the applicant’s circumstances.
For these reasons I find that the applicant would not have a well-founded fear of persecution now or in the reasonably foreseeable future as:
·     A person who has assisted Peace Committees
·     A person who has assisted in fighting the Taliban
·     A person who is seen as being sympathetic of the west and western culture.
·     Direct and indirect threats to his life or liberty communicated to the applicant amounting to serious harm (that is, separate and distinct from any harm that may follow those threats), or any other harm or harm to his family
·     Direct targeted serious harm (including threats to his life or liberty, death and significant physical harassment and ill-treatments) by the Taliban; pro-Taliban forces, militia, or sympathizers; other extremist Islamist groups; and other local Pakistani people for reasons not covered by s 5J(1)(a) but where the Pakistani authorities may discriminatorily withhold protection for the following essential and significant reasons
-    The applicant's actual religious (and/or political) belief in
-    The applicant belonging to a particular social group of people
-    A person who has lived in a western country for a prolonged period of time
-    A person who is seen as being sympathetic of the west and western culture
Complementary protection
Turning to complementary protection I find that he is not nor will he be at real risk of significant harm due to:
-arbitrary deprivation of life by the Taliban; pro-Taliban forces, militia, or sympathizers; other extremist Islamist groups; and other local Pakistani people and/or
-torture at the hands of the Taliban; pro-Taliban forces, militia, or sympathizers; other extremist Islamist groups; criminals; gangs; and other local Pakistani people and/or
-cruel or inhumane treatment or punishment and degrading treatment by the Taliban; pro-Taliban forces, militia, or sympathizers; other extremist Islamist groups; and other local Pakistani people and/or
-significant harm of the kind Identified by the Federal Circuit Court of Australia in SZSWB8 and MZAII/8.
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the 'receiving country' for the purposes of s.5(1).
For the reasons set out above, the Tribunal has not accepted the applicant's claims. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will be subjected to serious harm by militant groups or terrorists, the authorities, or anyone else if he returns to Pakistan.
In MIAC v SZQRB, the Full Federal Court held that 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.
For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from the terrorists or militant extremists for any reason that he will otherwise be subjected to significant harm by militant groups or terrorists, or anyone else if he returns to Pakistan. There is no evidence and I do not accept that he will be arbitrarily deprived of his life, face the death penalty, is subject to torture or be subject to cruel, inhumane or degrading treatment if he were removed from Australia to Pakistan. For the same reasons as above the tribunal is not satisfied the person is someone who Australia has protection obligations to under section 36(2)(aa).
Nor does the Tribunal accept there is a real risk the applicant will suffer significant harm for any other reason as a necessary and foreseeable consequence of his removal to Pakistan. Again, the applicant does not satisfy the criterion set out in s.36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 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.
Justin Meyer
Member

[2019] AATA 5907

28 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction