1620482 (Refugee)

1620482 (Refugee) [2020] AATA 3820 (10 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620482
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Dr Colin Huntly
DATE:10 September 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 September 2020 at 1:34pm
CATCHWORDS
REFUGEE – protection visa – fear of harm from extremist group as former medical program worker – threatening letters and phone calls, and kidnapping attempt – request for recusal due to apprehension of bias – credibility – inconsistent and changing claims and evidence – low-level, short-term, casual work – no reports to police or village committee – travel to third country and return – authenticity of documents – country information about document fraud and government security operations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J(1), 36(2)(a), (aa), (2B)(b), (c), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
A v MIMA [1999] FCA 116
BBK15 v MIBP [2016] FCA 680
Chan v MIEA (1989) 169 CLR 225
Dimitropoulos v ASIC [2019] AATA 1350
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
SZTEQ v MIBP [2015] FCAFC 39
SZTES v MIBP [2014] FCCA 1765
VSAI v MIMIA [2004] FCA 1602
WZATX v MI [2019] FCCA 2576
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 dependants.
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 on 7 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Applicant migration history
The applicant first entered Australia [in] April 2015, travelling on a [Student] visa. This visa was eventually cancelled on 20 November 2015 due to the applicant not commencing his studies in Australia.
On 24 June 2015 the applicant applied for a protection visa. This application was refused by a delegate of the then Minister for Immigration and Border Protection by written decision dated 7 November 2016. The applicant seeks review of this decision by this Tribunal.
Proceedings before the Tribunal
The applicant appeared before the Tribunal to give evidence and present arguments on three occasions, namely, in person at the Perth registry on 21 January 2020 and 9 March 2020, and by video-conference using the MS Teams facility on 22 July 2020.
The applicant was not represented in this application by a registered migration agent. The Tribunal was assisted in the hearings by the services of an interpreter fluent in both the English and Pashto languages.
Identity and receiving country
The applicant provided a copy of his Pakistan passport to the Department with his application for protection. I have no reason to doubt the validity of this document. I have reviewed this passport and, as indicated above, have had the opportunity to interview the applicant on three occasions.
Based on the information before me, I find that the applicant is a citizen of Pakistan, which is also the receiving country for the purposes of the refugee and complementary assessments.
In light of the findings made below, it has not been necessary to make findings pursuant to s.36(3) of the Act relating to third country protection.
WHAT IS THE BACKGROUND OF THIS APPLICATION?
Introduction
The applicant originates from [a] village in the district of Malakand, Khyber Pakhtunkhwa Province, Pakistan.
He seeks protection in Australia under s.36(2)(a) of the Act, and claims to hold a well-founded fear of persecution in Pakistan now and for the foreseeable future for the essential and significant reason of his being threatened with death by the Taliban in Pakistan (TTP) due to his profile as a paid casual polio eradication worker assisting NGO campaigns between May and December 2013 in the region around his home village.
Although not expressly raised by the applicant I have also considered the question as to whether the security situation in Pakistan generally is such that the applicant would engage Australia’s complementary protection obligations.
Delegate’s decision
In a written decision dated 7 November 2016, a delegate of the Minister refused to grant the applicant a protection visa. The delegate summarised his reasons for refusing to grant the visa as follows:[1]
In combination to the unusual timing of the letters, that they would be directed at someone with the profile of the applicant, his behaviour in Pakistan, contradictory employment evidence and that he would involve for more than one campaign, I do not accept that he was or Is being threatened by the TTP. Although I accept he was a polio worker at some point In the past, considering he has not been involved in any such employment since 2013, I also do not accept he is of interest to any groups in Pakistan on that basis.
[1]Delegate decision record, 7 November 2016, at (8).
Tribunal decision in summary
After considering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed.
In particular, I have made a number of adverse findings relating to the credibility of the applicant’s core claims for protection. As is discussed in detail below, in part my findings have been made due to certain corroborating evidence that the applicant has adduced. Some of this evidence was unsatisfactory in its terms, some was inexplicably illogical and some has been deprived of persuasive force because of the existence of inconsistent statements made by the applicant.
I have considered the applicant’s claims for protection under the refugee criteria at s.36(2)(a) of the Act individually and then cumulatively and I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for any reason. I have further considered the applicant’s claims for protection under the complementary protection criteria, individually and then cumulatively and I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for any reason.
I have also considered the applicant’s potential implied claim to hold a well-founded fear of harm in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to the Taliban in Pakistan, various non-ideological criminal thugs and other non-state actors. I have concluded that this potential implied claim does not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
Proceedings
The applicant appeared before the Tribunal as presently constituted to give evidence and present arguments on three occasions: firstly, in person on 21 January 2020 then on 9 March 2020 and by video-conference using MS Teams on 22 July 2020 due to the COVID-19 restrictions. All hearings were held with the assistance of interpreters fluent in the Pashto and English languages.
The applicant was not represented by a registered migration agent during this review.
Procedural objections: Recusal request
By letter dated 25 March 2020, the applicant requested me as the Member constituted as the Tribunal for this review to recuse myself as the Tribunal for the application. After considering the materials that are analysed in the following paragraphs, I decided that there were insufficient grounds to warrant my recusal in this instance. On 15 July 2020, the Tribunal wrote to the applicant in the following terms:
The Tribunal has considered your request dated 25 March 2020 for Member Dr Colin Huntly to recuse himself as the Tribunal for your application. You were invited to respond to certain information in relation to your request by letter dated 26 June 2020.
Your response to this invitation dated 13 July 2020 is noted.
Member Dr Colin Huntly has considered your request, related submissions and subsequent response and has decided that your submissions do not support a finding that the Member should recuse himself as the Tribunal in your application. Reasons for this decision will be included in a final decision on the application under review.
Applicant recusal request
The applicant’s 25 March 2020 letter stated as follows:
In the last hearing the member raise the following issues for me think about. Firstly, I would like to say that my English is average only. Generally, I can understand the ordinary white Australia speaking but I find it very difficult to understand what your honour member is saying at times. You are highly educated and a doctor and your use of English words and your sentences and the way you asked questions are very difficult for me to follow. I am very sure the interpreter also cannot understand exactly what you were trying to say. I kindly requests for a new member to listen to my case please. The question you ask are also tricky and if I innocently say something than you use it against me. Like below:
1.For example you ask me whether I have anything to add or change. I thought that was very nice of you to ask me. Then when I said I have also given talk on polio program to people. You straight away said I am not credible and you mentioned so many sections of the Migration Act (which I cannot remember) like you were waiting for me to make this mistake and ready to use all legal sections against me. I find this to be unfair to me. It would have been fairer if you had first warned me of the consequences before asking whether I have anything new to add or raise. I feel you are using this question to trap me. Your honour Member should have warned me first of the consequences before asking whether I have anything to add or change or new to say.
2.Secondly, you asked me what I did in [Country 1]. I said I went on a tourist visa visiting family and friends. And I said I did nothing else. You asked whether I worked. I say no. then when I said I did apply for jobs then you say why I didn’t say this before and you said I am not credible. Your honour’s questions are very difficult to understand and your conclusions are very difficult to rationalise.
By email dated 9 June 2020, I wrote to the applicant as follows:
On 25 March 2020 you wrote to the Tribunal, stating that you thought that the Member was asking ‘tricky’ questions on the hearing of 9 March 2020. Could you please mention the parts of the audio in the hearing you felt that the Member was difficult to understand. The Tribunal has already sent you a copy of the hearing audio so it would be appreciated if you could point out which minutes and seconds of the hearing you were having difficulty. I have also attached a copy of the audio of your latest hearing. I have also attached the original submission that you provided.
The applicant replied by letter dated 23 June 2020, providing the following particulars of his concerns:
Submission 1
13:26 to 15:03 –Member said if I am asking you to accept that the doctor who signed the document, that he accepted that his name had been spelt incorrectly ….. you said I doesn’t sound credible.
What in fact I never said that the doctor accepted his name was spelt incorrectly. What I said was the clerk prepares and he signs the letter and he may not have noticed that his name had been spelt incorrectly. The way you summarise it was very confusing to me. Furthermore all the registered doctors can be verified online on Pakistan Medical & Dental Council (PMDC) website entering the doctor’s registration number which is [Number].
Reference to the relevant extract of the audio record of the hearing in question discloses the following exchange:
MEMBER:I’m just handing that to you for the purposes of the recording.
WITNESS: Yes.
MEMBER:What is it that you want me to take from that document?
WITNESS: So Member, the - I just wanted to give you something from that hospital and that’s why I just asked the in charge hospital to provide me something official to - which states that yes, that’s the hospital name. I mean if - - -
MEMBER:And it’s a copy of the emails that you sent and received from the hospital on your phone?
WITNESS: It seems the hospital didn’t send me, my brother went there and he got that certificate from the hospital but it seems I’ve already deleted some of the things from there.
MEMBER:I’ve tried to find [Mr A] - sorry, [Dr A] on the Pakistan health network and I can’t find him, he’s not name at all anywhere in the official Pakistan health system web service. The other thing that’s of some concern to me is that he’s spelt his name a different way twice in the one document. Anything you’d like to say about that?
WITNESS: Yes, it’s obviously a mistake.
MEMBER:It’s the same person who - - -
WITNESS: It’s the same person and I mean - - -
MEMBER:Why would a person spell their name twice - at the same time on the same document in two different ways?
WITNESS: So, what happens if someone request a certificate usually a clerk or a computer operator usually types this certificate and then give it to the doctor or the relevant person to sign and stamp it.
MEMBER:The short answer is you don’t know why he’s done that.
WITNESS: No, I have no idea.
MEMBER:You are suggesting to me‑and I should accept‑that a clerk or a computerised request is responsible for this error?
WITNESS: Yes, Member because - yes. Usually the doctor or the in charge only sign and stamps the - all the certificates and those things.
MEMBER:But you’re asking me to accept that that doctor signed that document. He accepted that his name had been spelt incorrectly by a junior medical assistant. Do you understand that that just doesn’t seem credible?
WITNESS: Okay.
MEMBER:Anything you’d like to say about that?
WITNESS: All I can say is you can confirm it from him.
MEMBER:I tried. I tried contacting the [Village] Health Service to find out if there was a doctor by that name there. I can’t find any record online of that doctor.
WITNESS: He is still there. He’s still in the hospital. In the morning he is in the hospital and in the afternoon he runs his own clinic in [Town 1].
MEMBER:I am letting you know that I don’t think this document is authentic. The fact that a doctor has provided your brother with a letter in which his own name is spelled differently twice at the same time, suggested to me that it’s not actually signed by that doctor. The second point is I can find no reference to that doctor online in connection with the [Village] Agency Health Service.
WITNESS: Okay.
Consideration of submission 1
On 26 June 2020 the Tribunal wrote to the applicant and put to him that the foregoing extract from the hearing record suggests that he did, in fact, understand everything that was put to him in the relevant portion of the hearing. This is demonstrated by the relevance of his answers and the coherence of his arguments.
It was also observed in this correspondence that the applicant did not rely on the interpreter during this passage of the hearing. For this reason, the applicant’s concerns regarding the interpreter’s understanding did not appear to be relevant. It is further noted that, in the applicant’s subsequent response to my 26 June 2020 invitation to comment on the foregoing, dated 13 July 2020, the applicant stated:
First I would like to make it clear that my point regarding the role of interpreter was generalised, Not in this specific transcript of hearing.
Accordingly, I find that the applicant’s expressed concerns about the interpreter in this instance were not well-founded and should not be given any weight.
What is apparent from the audio record of the hearing is that the applicant was made aware of the Tribunal’s concerns about important questions of credibility and that the applicant did not accept that those concerns were reasonable.
Rather than demonstrate a lack of understanding of the Tribunal’s questioning, this extract demonstrates that the applicant understood but disagreed with the Tribunal’s concerns. Similarly, while the applicant’s later submission was that he was confused by the Tribunal’s questions in the foregoing passage, he has not identified any part of the record that could reasonably be said to demonstrate confusion on the part of the applicant.
It is noted that my 26 June 2020 invitation to comment on the apparent inconsistency relating to the doctor’s name that formed the substance of questioning in the foregoing passage was not addressed by the applicant in his subsequent 13 July 2020 response in any way.
Based on the foregoing, I find that the applicant’s submission and subsequent response appearing above under the heading ‘Submission 1’ does not invite a finding that I should recuse myself as the Tribunal in this application.
Submission 2:
18:16 – 18 26 Here you did not give me a chance to explain – you just said “I wasn’t there”. You continued with your suggestions that the document is not authentic. You did not give me a chance to explain
Reference to the relevant extract of the audio record of the hearing in question discloses the following exchange:
MEMBER:I am letting you know that I don’t think this document is authentic. The fact that a doctor has provided your brother with a letter in which his own name is spelt differently twice at the same time, suggests to me that it’s not actually signed by that doctor. The second point is I can find no reference to that doctor online in connection with the [Village] Agency Health Service.
WITNESS:Okay.
MEMBER:The third thing is that I’ve asked you to provide me with a copy of the email correspondence relating to a document which you obtained seven days ago at the earliest and for those reasons I’m suggesting to you that I can’t find that this is an authentic document.
WITNESS:Member, I’ve deleted from my phone but if I ask my brother to screenshot what he send me on that date would that be acceptable?
MEMBER:I’ve asked you for you documents and you can’t provide me with them. You see there’s a reason why I’m cautious with documents that come from Pakistan and that is that DFAT suggests that there’s a large amount of document fraud in Pakistan.
WITNESS:Okay.
MEMBER:I’m interested in what you’ve done. I’m interested in what I can see on the documents.
WITNESS:But - - -
MEMBER:And I’m interested in my own independent online inquiries, all three things suggest to me this document’s not authentic.
WITNESS:Member, I’m certain ‘bout that thing, that certificate that it’s authentic and - - -
MEMBER:I know you’re certain, I know you’re certain [Mr Applicant] but you weren’t there. You were here and I’m telling you what I can find on the basis of this document is that it suggests it’s not authentic. Happy to receive submissions from you at a late date on that point.
WITNESS:Okay.
Consideration of submission 2
On 26 June 2020 the Tribunal wrote to the applicant and put to him that the foregoing extract from the hearing record suggests that he did, in fact, understand everything that was put to him in the relevant portion of the hearing. This is demonstrated by the relevance of his answers and the coherence of his arguments.
It was also, once again, observed in this correspondence that the applicant did not rely on the interpreter during this passage of the hearing. For this reason, the applicant’s concerns regarding the interpreter’s understanding did not appear to be relevant. It is further noted that, in the applicant’s subsequent response to my 26 June 2020 invitation to comment on the foregoing, dated 13 July 2020, the applicant stated:
First I would like to make it clear that my point regarding the role of interpreter was generalised, Not in this specific transcript of hearing.

Accordingly, I find that the applicant’s expressed concerns about the interpreter in this instance were not well-founded and should not be given any weight.
What is apparent from the audio record of the hearing is that the applicant was made aware of the Tribunal’s concerns about important questions of credibility and that the applicant did not accept that those concerns were reasonable.
Rather than demonstrate a lack of understanding of the Tribunal’s questioning, this extract demonstrates that the applicant understood but disagreed with the Tribunal’s concerns. Similarly, while the applicant’s later submission was that he was confused by the Tribunal’s questions in the foregoing passage, he has not identified any part of the record that could reasonably be said to demonstrate confusion on the part of the applicant.
With respect to the Tribunal not giving the applicant a chance to explain, in addition to taking his evidence in detail in person at the hearing, as is demonstrated in the extract above, I expressly stated that I was ‘Happy to receive submissions from you at a later date on that point.’ The applicant’s submission that he was not given a chance to explain does not, therefore, appear to be reasonably made.
The applicant’s 13 July 2020 response to my 26 June 2020 invitation to comment on concerns about the authenticity of the documents submitted in support of the applicant’s claims for protection was as follows:
As it is clear in the transcript that respected Member repeatedly raising concerns about the authenticity of my submitted documents, In particular he insisted that he could not make any contact with that concerned doctor mentioned in my document online, He further went on and told me that I tried to contact the [Village] Health Services. Well its rather quite strange to expect health services website in that far-fetched area of any third world country, Yes if the respected Member genuinely wanted to make it clear weather he is an authentic practitioner or not, He could easily get that info from Pakistan Medical and Dental Council (PMDC) easily and its crystal clear that it’s nearly impossible to get any fraudulent, Dubious info from PMDC. The Tribunal can take DFAT’s view regarding the reputation of that institution (PMDC) in Pakistan.
This response does not engage meaningfully with the substance of the invitation to respond on this point. The substantive issue that was raised at the hearing addressed the authenticity of a particular document and was not related to the legitimacy of a particular medical practitioner in Pakistan. Given this, it is apparent that the applicant has failed to address reasonable questions that arose from the text of the document in question.
Based on the foregoing, I find that the applicant’s submission and subsequent response appearing above under the heading ‘Submission 2’ does not invite a finding that I should recuse myself as the Tribunal in this application.
Submission 3:
20:38 – 21:13 – Here you asked for the email of the district coordinator of EPI and I said it was sent to me on [social media] by my brother – and again you straight away said I have no knowledge where the document originated. You said I do not have personal knowledge and you said you also have concerns about this document.
Reference to the relevant extract of the audio record of the hearing in question discloses the following exchange:
MEMBER:Yes, can I have a copy of the emails in which you’ve requested for this document?
WITNESS: Yes.
MEMBER:No, the emails. Not the document‑the emails.
WITNESS: He sent me through [social media].
MEMBER:Who sent it to you?
WITNESS: My brother.
MEMBER:Again, you have no knowledge of where this document originated?
WITNESS: It was from the EPI office.
MEMBER:You have no personal knowledge, is that correct?
WITNESS: No, I don’t but what I - - -
MEMBER:I have concerns about this document also.
WITNESS: Okay. What I can do, I’ll ask them to send me from their email to my email and I will do the submission for that.
MEMBER:Right, okay [Mr Applicant], but I have to tell you I have doubts about the validity of this document also. One thing the World Health Organisation logo that’s shown there is not the correct logo. It’s clearly a copy of an old logo. The currently logo of the World Health Organisation has the World Health Organisation in large letters to the right of the globe. This is a very old logo. Occasionally World Health Organisation have had to change the way they logos look because it’s been copied and used in documents that are not authentic. That does not appear to me to be an authentic (indistinct) from World Health Organisation.`
WITNESS: The way they provide these certificates it’s not on a letterhead, it’s pre-typed in Microsoft Office, they just change the name and the required details and after that they just print it out.
MEMBER:How do you know that?
WITNESS: That’s what my brother told me.
MEMBER:Your explanation lacks credibility because you have no personal knowledge of this. There’s also this logo here which I’m not familiar with in any of the cases relating to polio that I’ve dealt with. What is this a logo of?
WITNESS: It’s for the EPI, extended program of immunisation, it’s their logo.
MEMBER:The most significant aspects of this document that is not correct and raises significant questions about its credibility is the email address‑the contact email addresses provided. This contact email address has no connection with World Health Organisation‑the yahoo.com email address.
WITNESS: Yes, that’s right, yes.
MEMBER:There is a procedure for the World Health Organisation to issue employment references and results in a World Health Organisation official document being issued and this does not appear to me to be an official (indistinct) on any level. I’ve got significant credibility concerns about the authenticity of this document. Is there anything you’d like to say about that?
WITNESS: Yes, Member. The reason why they put the yahoo.com, they don’t have their official domain for the email address.
MEMBER:They actually do. They actually do. I’ve communicated with these people many times over the years.
WITNESS: WHO?
MEMBER:Yes.
WITNESS: Okay.
MEMBER:In Pakistan.
WITNESS: I called them last Thursday, I called Islamabad to give me because I couldn’t find any contact details for the [Town 1] branch. I asked number for the [Town 1] branch, they give me a number. I called them, I said I work from this time to this time, could you please provide me my record for the specific time and they said no, we don’t. ‘You were a casual worker, we don’t keep any records of the casual or the volunteer because there will be maybe 10,000 people taking part in the - in the campaign, so we can’t provide the experience certificate for each of them. But if someone is hired by WHO then we keep their record and we can provide you a certificate for that. But if you were not hired directly by WHO we don’t keep any record of that. If you…”
MEMBER:You spoke to them last Friday?
WITNESS: Yes, I did. And I have the phone record.
MEMBER:On 6 March?
WITNESS: It was Thursday, on 5 March.
MEMBER:The certificate is dated 4 March.
WITNESS: Yes.
MEMBER:I’m sorry, [Mr Applicant], the more evidence you give me the more reason I have to doubt the authenticity of these documents.
WITNESS: Yes.
Consideration of submission 3
On 26 June 2020 the Tribunal wrote to the applicant and put to him that the foregoing extract from the hearing record suggests that he did, in fact, understand everything that was put to him in the relevant portion of the hearing. This is demonstrated by the relevance of his answers and the coherence of his arguments.
It was also, once again, observed in this correspondence that the applicant did not rely on the interpreter during this passage of the hearing. For this reason, the applicant’s concerns regarding the interpreter’s understanding did not appear to be relevant. It is further noted that, in the applicant’s subsequent response to my 26 June 2020 invitation to comment on the foregoing, dated 13 July 2020, the applicant stated:
First I would like to make it clear that my point regarding the role of interpreter was generalised, Not in this specific transcript of hearing.
Accordingly, I find that the applicant’s expressed concerns about the interpreter in this instance were not well-founded and should not be given any weight.
What is apparent from the audio record of the hearing is that the applicant was made aware of the Tribunal’s concerns about important questions of credibility and that the applicant did not accept that those concerns were reasonable.
Rather than demonstrate a lack of understanding of the Tribunal’s questioning, this extract demonstrates that the applicant understood but disagreed with the Tribunal’s concerns. Similarly, while the applicant’s later submission was that he was confused by the Tribunal’s questions in the foregoing passage, he has not identified any part of the record that could reasonably be said to demonstrate confusion on the part of the applicant.
With respect to the Tribunal not giving the applicant a chance to explain, it is clear from the extract above that I put to the applicant my concerns about important questions relating to the credibility of documents that the applicant had submitted for my consideration shortly before the hearing. This is an obvious procedural fairness requirement, without which the applicant might reasonably claim to have been denied a fair hearing before the Tribunal. The applicant’s subsequent submission that, by having these concerns put directly to him at the first reasonable opportunity he was not given a chance to explain, misconceives the nature of both a hearing in person and the requirements of procedural fairness.
Further, the applicant’s 13 July 2020 response to my 26 June 2020 invitation to comment on particular concerns about the authenticity of the PEI/WHO documents submitted in support of the applicant’s claims for protection was as follows:
I know the importance of the credibility and authenticity of evidence but again the dilemma is I worked in a country that’s backward and not neck to neck with the developed world. There they don’t give due importance to the gritty and nitty details of the working setup, Even when I was there they used to keep a register for whole record of sensitive information like Polio Campaign. Here sitting in Australia (a developed country) the respected Member questioned me about the standard protocols of acquiring documents. I wish things were that much easy, Transparent and digital in Pakistan. Respected Member can take DFAT’s view about my this claim of keeping record and information using manual manoeuvres, Especially in the suburbs and peripheries of Pakistan.
Here consider the fact that I belong to [a specified] province of Pakistan which is one of the most impoverished and under developed province of Pakistan.
Again I would urge the respected Tribunal to take into consideration my situation and all these facts into account.
This response does not engage meaningfully with the substance of the invitation to respond on this point. The substantive issue that was raised at the hearing addressed the authenticity of a particular document submitted by the applicant due to the text of the document itself. My concerns in this respect were not about the record-keeping practices in Pakistan relating to the polio eradication programs in that country over time. Given the foregoing, the applicant did not address reasonable questions that arose from the text of the document in question.
Based on the foregoing, I find that the applicant’s submission and subsequent response appearing above under the heading ‘Submission 3’ does not invite a finding that I should recuse myself as the Tribunal in this application.
Submission 4:
1:10:28 – you asked me what I did in [Country 1]. I didn’t do anything and I answered I didn’t do anything. Then you asked how I paid for things. I said my uncle took care of me. And then you asked me I sat at home. I said I go visiting family and wasn’t sitting at home.
Reference to the relevant extract of the audio record of the hearing in question discloses the following exchange:
MEMBER:What did you do in [Country 1] for three months?
WITNESS: I really didn’t do anything. I was just - my uncle used to live there. I was just living with them.
MEMBER:He had a business. Did you not help with the business?
WITNESS: He’s not - my sister-in-law, he has a business. My uncle, he was working in the [Country 1] [work sector] company. He was doing something.
MEMBER:So, you just went for three months and did nothing?
WITNESS: I didn’t do anything, no.
MEMBER:How did you pay for things?
WITNESS: He was paying for everything. He was my uncle. My father’s brother.
MEMBER:So, during that three months, you just sat at home, did you?
WITNESS: I didn’t sat at home, but I was there, I didn’t - I mean, I didn’t work there, but I mean, if for example, on Friday, my cousin is here - also lives there - so, we used to go maybe for outing or to visit some of the relatives or family or any other places. We just used to do that. But no, I wasn’t just sitting at home for three months.
Consideration of submission 4
On 26 June 2020 the Tribunal wrote to the applicant and put to him that the foregoing extract from the hearing record suggests that he did, in fact, understand everything that was put to him in the relevant portion of the hearing. This is demonstrated by the relevance of his answers and the coherence of his arguments.
It was also, once again, observed in this correspondence that the applicant did not rely on the interpreter during this passage of the hearing. For this reason, the applicant’s concerns regarding the interpreter’s understanding did not appear to be relevant. It is further noted that, in the applicant’s subsequent response to my 26 June 2020 invitation to comment on the foregoing, dated 13 July 2020, the applicant stated:
First I would like to make it clear that my point regarding the role of interpreter was generalised, Not in this specific transcript of hearing.
Accordingly, I find that the applicant’s expressed concerns about the interpreter in this instance were not well-founded and should not be given any weight.
What is apparent from the audio record of the hearing is that I asked the applicant an open question; ‘What did you do in [Country 1] for three months?’ In response to this question, the applicant firstly stated: ‘I really didn’t do anything.’
I then repeated this open question and put to the applicant the inference that arose naturally from his first response as follows: ‘So, you just went for three months and did nothing?’ In response to this, the applicant stated; ‘I didn’t do anything, no.’
Later in the extract the applicant stated; ‘I didn’t sat at home, but I was there, I didn’t – I mean, I didn’t work there’.
Significantly, the applicant did not rely on the interpreter during this passage. In the circumstances, it is not apparent how such questioning could properly be characterised as being ‘tricky’ or difficult to understand. As noted above, in his 13 July 2020 response to my 26 June 2020 invitation to comment on the applicant acknowledged that:
… I agree that in one go I didn’t tell the whole story but what I said was frank truth, I didn’t mention the fact that I tried to find a job but I thought that part was insignificant as the conversation evolved, I mentioned that part too but it was implied that I was inconsistent in my answers, Omission of something unintentionally is not inconsistency, I feel it’s just a human error.
It is clear from the foregoing that the issue in question was not the nature of the questions put to the applicant at the hearing, but the partiality of the answers that were given by him and the changing nature of the evidence provided by the applicant at the hearing. There is no recognised ground for recusal where an applicant objects to a Tribunal highlighting where an applicant has given inconsistent sworn evidence in response to open questions.
Based on these considerations, I find that the applicant’s submission and subsequent response appearing above under the heading ‘Submission 4’ does not invite a finding that I should recuse myself as the Tribunal in this application.
Submission 5:
1:32:16 – You said why I didn’t get a work visa. I explained I did apply for jobs while I was in [Country 1] while staying with my uncle and you said I didn’t tell you earlier. And that I am changing my evidence. Your question was very difficult to understand. You could have asked me – Did I try to get work while I was in [Country 1]. And Not “ You sat at home”. It was so difficult to try to explain to you.
Reference to the relevant extract of the audio record of the hearing in question discloses the following exchange:
MEMBER: But you claimed to have been under threat of execution from the Pakistan Taliban for attempted abduction.
WITNESS:Mm.
MEMBER: For many months before that.
vWITNESS:Yeah. It’s - - -
MEMBER: When you had a valid passport.
WITNESS:I had like two months but when that - - -
MEMBER: No. You had from 2012. December 2012 while all of these reports weren’t being taken seriously by the police.
WITNESS:Yeah.
MEMBER:‘Bout these threats. About these - this attempted abduction‑ took you another year and a half almost.
WITNESS:Yeah.
MEMBER: To go to [Country 1].
WITNESS:Yeah. So -um - that was in passport - (indistinct) - 2012 but - - -
INTERPRETER: I had that passport I was holding passport from the end of 2012 I wouldn’t be leaving my country without a serious consequences if my life is really serious in danger, otherwise wouldn’t be leaving my country for a small threat or something like this.
WITNESS:When I failed that - it’s - - -
MEMBER: And I’m not disagreeing with you there. I’m saying that’s perfectly logical. If you didn’t think your life was in danger you wouldn’t have any reason to leave.
WITNESS:Yeah.
MEMBER: That’s the point I’m making.
WITNESS:Yeah. Yeah.
MEMBER: You didn’t leave. And when you did leave you left for three months on a holiday and then you went back. And none of that is consistent with a genuine well-founded fear of persecution or harm in Pakistan.
WITNESS:Yes. So if I - if I wanted to go to [Country 1] other than visitor visa I didn’t have any option. I had to - um - to find a job.
MEMBER: No, but that’s what you did - you say?
WITNESS:Hmm?
MEMBER: That’s what you did. You went on a tourist visa.
WITNESS:Yeah.
MEMBER: And made no attempt.
WITNESS:That was the quickest way to get a visa.
MEMBER: Well, it’s a quick way that you took nearly 18 months to take.
WITNESS:Mm.
MEMBER: You could have got on to the plane at any time.
WITNESS:Yeah, but - - -
MEMBER: But you didn’t go. You didn’t look into - this is the thing. The facts of your life don’t match the narrative. The narrative is you were under persecution, threat of violent harm from terrorist extremists in Pakistan. You didn’t report it to police. You didn’t report it to the local peace committee. You didn’t - whether or not you took it seriously you kept going back to your village.
WITNESS:I didn’t went back.
MEMBER: You were involved in polio campaigns for 14 days across six or eight months and then when you did leave, despite a kidnapping attempt, you went on holiday to [Country 1]. You didn’t investigate the possibility of getting work visas. Didn’t investigate visas to any other country on the planet.
WITNESS:Um - - -
MEMBER: All of those - all of that - all of those facts of your life don’t match your claims of persecution or fear of harm.
WITNESS:I would like to explain it. As you mentioned you didn’t - um - um - apply for a job too - so you can settle there.
MEMBER: Well, you didn’t even enquire and you had uncles who - and your father, indeed, who had successfully worked there.
WITNESS:Mm.
MEMBER: You say you’re well-educated. The question - see what I’m trying to tell you - and I’m not sure you’re ‘hearing’ me, is that the serious harm you say that you feared in Pakistan from 2013 is not matched with your conduct and the conduct of your life is of a person who was quite happy living in his village, quite happy to travel away and then come back. Quite happy to move from his village to Peshawar. All of those things are not what you would expect to see for someone who is genuinely in fear of harm for their life. People who are in fear of harm to their life go into hiding. They try moving to a different part of the country. They ask for help from the authorities. They investigate the possibility of going to another country if they can. You did none of that.
WITNESS:Yes.
MEMBER: And it’s the fact that you didn’t do any of the things I would normally associate with someone who fears harm that makes me ask the question - do you actually - fear harm?
WITNESS:Yeah. Okay. Um - to the first thing - I moved to Peshawar and the place I thought it would be for me was the university hostel but they were - after - even - even living in Peshawar in January I wasn’t feeling really - um - comfortable living there. That’s why I moved to [Country 1]. And as far as the job is concerned I did my - what it took to - um - to settle in [Country 1] in those three months but I couldn’t. And if you check my - my degree.
MEMBER: But you didn’t make any attempts to find out but according to the evidence you give me today you didn’t do anything in [Country 1]. You just stayed with your family and visited friends.
WITNESS:Yeah, I mean I applied for jobs to get - - -
MEMBER: That’s not what you told me before.
WITNESS:Mm.
MEMBER: What you told me before was that you didn’t really do anything in [Country 1].
WITNESS:Yeah, I’m - - -
MEMBER: Now, you’re saying - now your evidence is changing.
WITNESS:No. I mean - I didn’t work there because I couldn’t find any work.
MEMBER: No. I asked you what you did in [Country 1].
WITNESS:Yeah.
MEMBER: And you said ‘nothing’. Now you’re saying, ‘Actually when I was in [Country 1] I applied for jobs.’ Now were you telling the truth the first time I asked or are you now telling me the truth? Or is your story just changing as you tell it.
WITNESS:It’s not changing but I’m just - in that - I’m explaining it more. That’s what I’m trying to - - -
MEMBER: Well, I’m finding - I’m finding your explanation to be inconsistent with your previous statement.
Consideration of submission 5

On 26 June 2020 the Tribunal wrote to the applicant and put to him that the foregoing extract from the hearing record suggests that he did, in fact, understand everything that was put to him in the relevant portion of the hearing. This is demonstrated by the relevance of his answers and the coherence of his arguments. In particular, early in the extract above the applicant volunteered the following:
Yes. So if I - if I wanted to go to [Country 1] other than visitor visa I didn’t have any option. I had to - um - to find a job.
Later in the extract it can be seen that I put to the applicant the inconsistencies in his evidence during the course of the hearing about an important question relating to his basic credibility and the credibility of his core claims for protection as follows:
MEMBER: But you didn’t make any attempts to find out but according to the evidence you give me today you didn’t do anything in [Country 1]. You just stayed with your family and visited friends.
WITNESS:Yeah, I mean I applied for jobs to get - - -
MEMBER: That’s not what you told me before.
WITNESS:Mm.
MEMBER: What you told me before was that you didn’t really do anything in [Country 1].
WITNESS:Yeah, I’m - - -
MEMBER: Now, you’re saying - now your evidence is changing.
WITNESS:No. I mean - I didn’t work there because I couldn’t find any work.
MEMBER: No. I asked you what you did in [Country 1].
WITNESS:Yeah.
MEMBER: And you said ‘nothing’. Now you’re saying, ‘Actually when I was in [Country 1] I applied for jobs.’ Now were you telling the truth the first time I asked or are you now telling me the truth? Or is your story just changing as you tell it.
WITNESS:It’s not changing but I’m just - in that - I’m explaining it more. That’s what I’m trying to - - -
MEMBER: Well, I’m finding - I’m finding your explanation to be inconsistent with your previous statement.
Once again, it is noted that the applicant did not rely on the interpreter during the passage above, about which he raised specific concerns in his request that I recuse myself from this review. For this reason, the applicant’s concerns regarding the interpreter’s understanding do not appear to be relevant to this submission.
I further note that, in the applicant’s subsequent response (dated 13 July 2020) to the 26 June 2020 invitation to comment on the foregoing, the applicant stated:
First I would like to make it clear that my point regarding the role of interpreter was generalised, Not in this specific transcript of hearing.
Accordingly, I find that the applicant’s concerns about the interpreter in this instance were not well-founded and should not be given any weight.
It will be appreciated that the foregoing extract of the hearing record highlights important questions about the credibility of the applicant’s evidence on a core aspect of his claims for protection. The applicant’s evidence about his visit to [Country 1] did change considerably as the hearing progressed. This is identified in clear terms in the extracts reproduced above. Procedural fairness required that I put this matter to the applicant directly to afford him the opportunity to comment. In addition to doing so at the hearing, I invited him to make further submissions in the letter of 26 June 2020.
As discussed above in connection with ‘Submission 4’, the partiality of the answers that were given by the applicant and the changing nature of the evidence provided by the applicant at the hearing are not adequately accounted for by claiming that they were simple ‘omissions’ due to ‘human error’.
Based on these considerations, I find that the applicant’s submission and subsequent response appearing above under the heading ‘Submission 5’ does not invite a finding that I should recuse myself as the Tribunal in this application.
Submission 6:
1:38:32- you said why I didn’t make my self unfindable. I just didn’t know how to make myself unfindable. No one can obtain a telephone service anonymously. So I don’t understand when you say I never make myself unfindable.
Reference to the relevant extract of the audio record of the hearing in question discloses the following exchange:
MEMBER:You also say you changed your telephone number twice when you were in Pakistan but you were still able to get your number. How do you suppose they did that?
WITNESS:Do you mean how did they find my number?
MEMBER:Yes, your new numbers. You changed your numbers.
WITNESS:Yes.
MEMBER:Several times - how do you think the Taliban got your new numbers?
WITNESS:Okay. Member, I’m sitting here in Australia. If you ask me to find number of someone from my village I can - I can do it. I can do it. Just give me one day and I can do it. And the network they have did their - all over the country - they’re - you don’t know who - um - are involved in those activities. If - if - I’m a single person - if I can find a number of someone in our village they can find me anywhere.
MEMBER:If you wanted to be unfindable could you be unfindable?
WITNESS:For certain time maybe I will be but after that - how - how can
- - -
MEMBER:Earlier today - when - earlier today when I asked you about the telephone numbers for the Taliban eventually what you told me was actually they’re registered under different names.
WITNESS:Yes. That’s right. I’m - I’m - not - - -
MEMBER:You never did that when you changed your telephone numbers you didn’t change your name and visibility?
WITNESS:I’m not saying that - grabbing or getting the information from the telephone company is the only way to get the numbers.
MEMBER:I’m asking you what you did. Did you attempt to disclose your identity on the telephone? When you changed numbers?
WITNESS:I wasn’t exposing my - my - when they were calling me. I think the interpreter will - what did he ask me. Member? Sorry.
INTERPRETER: Can you repeat, Member? Please your question?
MEMBER:Did you hide your identity on your new telephones?
WITNESS: At that time the telephone numbers they were registering through the - to the biometric - so any new number you would buy you have to registered under your name and biometrics.
MEMBER:You didn’t explain to them that you were wanted by the Taliban and you needed to be anonymous?
WITNESS: I didn’t mention it to them but even if I do so they won’t - they won’t help me because they have a job to keep.
MEMBER:Okay. Thank you. I don’t - just don’t find that credible. That particular aspect of your claims does not seem to me to be credible.
Consideration of submission 6
As before, the foregoing extract of the hearing record strongly suggests that the applicant was engaging meaningfully with the relevant questions. Throughout the relevant passage, the applicant gave relevant answers and presented coherent arguments.
On the one occasion when he lost the train of thought, he used the interpreter to request that the question be repeated. At this point, I repeated and rephrased the question under discussion as follows:
Did you hide your identity on your new telephones?
The applicant’s subsequent response (dated 13 July 2020) to the 26 June 2020 invitation to comment on the foregoing stated:
First I would like to make it clear that my point regarding the role of interpreter was generalised, Not in this specific transcript of hearing.
Accordingly, I find that the applicant’s concerns about the interpreter in this instance were not well-founded and should not be given any weight.
As with other issues raised during the hearing, I attempted to clarify important questions around the credibility of the applicant’s claims and evidence. In these circumstances, I was required, as a matter of procedural fairness, to put these questions to the applicant directly and provide him with an opportunity to comment.
In his 13 July 2020 response to the 26 June 2020 invitation to comment about his apparent failure to maintain a reasonable degree of personal anonymity in Pakistan despite claiming to have been under threat from the Taliban, the applicant stated as follows:
The other important argument raised by the respected Tribunal Member that I was insensitive and reckless about the serious threat that I face and I didn’t report it to the Law Enforcement Agencies. The fact is there was chaos and uncertainty at that time even the police stations and check posts were under serious threats even they were not safe. They were losing lives every now and then.
I was not happy at all, It was just about options, What options did I have at that time with limited resources. We just went through it, I guess just by luck otherwise serious military operations conducted in SWAT Valley. The famous Malala Yousafzai who got Noble Peace Prize belongs to my same division (Malakand Division).
Respected Administrative Appeal Tribunal here I need an opportunity to present true picture of the dynamics of that whole traumatic time period. The situation that I faced and the questions being asked was probably not relevant. There is a disconnect between real crises inflected situation and putting forward questions by just mere observation and imagination. Giving threats using mobile phone was just one tool. There was whole picture to this story. For instance, They used to launch threats through FM Radio channels, The whole population was hijacked and made it obligatory for everyone to listen to that radio channel aired at 8 PM daily. That was just another medium.
Other innumerable pictures that were involved, Many unfortunates events occurred where humans heads were beheaded mercilessly. It affected our psyche and peace of mind in myriad ways.
I took precautions and measures that were possible, Convenient and effective for me. The mobile number issue that was raised by respected Tribunal Member was ineffective in my case. Therefore, There are many things that needed to be put in correct perspective, By taking just one ineffective issue in this whole story and on the basis of that questioning my credibility is not justified, I feel..
The objection put in this passage by the applicant does not appear to be about how proceedings were conducted, but with the inferences that were being drawn by the Tribunalon the basis of the applicant’s evidence. This is inconsistent with the applicant’s claims to have been misunderstood or that he failed to understand the nature of the proceedings or significance of the questions put to him during the hearing. The issues raised in this submission go to the merits of his application and not to whether or not the presiding Member should recuse himself as the Tribunal for the review application.
Based on these considerations, I find that the applicant’s submission appearing above under the heading ‘Submission 6’ does not invite a finding that I should recuse myself as the Tribunal in this application.
Further matters not otherwise raised in submissions
Reference to the relevant extract of the audio record of the hearing in question discloses that I summarised what had transpired at the hearing and the problems presented by the applicant’s evidence as it had been taken during the hearing as follows:
MEMBER:Today’s evidence has been unsatisfactory in a number of respects.
WITNESS: Mm. Okay.
MEMBER:And I’m trying to explain them back to you as we’ve gone through. Firstly, these submissions that you have provided me with do not appear to be authentic.
WITNESS: Okay.
MEMBER:And the reasons, I have explained. I have asked for a copy of the email correspondence which I presume are the people issuing these letters and you have been unable to provide them to me.
WITNESS: Mm.
MEMBER:A part of your answer was that you’ve lost some of the emails. I find your answers to lack credibility.
WITNESS: Um - - -
MEMBER:You also attempted to give me evidence about things that you have no knowledge of. All of that raises significant questions for the reasons I have explained.
WITNESS: For - - -
MEMBER:Sorry?
WITNESS: Sorry, continue Member. Sorry.
MEMBER:Have you got any other questions?
WITNESS: No. I was just going to say something after you.
MEMBER:Well we’ve already discussed them and I’ve already explained to you that I find these documents to be unsatisfactory.
WITNESS: Mm.
MEMBER:I am happy to repeat what I said to you before about why they’re unsatisfactory.
WITNESS: Mm. Yeah, I understand.
MEMBER:You understand?
WITNESS: Yes.
MEMBER:One of the most significant things that I find unsatisfactory about the polio work certificate is the fact that you say you have called - the WHO polio eradication offices in Pakistan on the 5 March 2020, but the certificate is actually dated the 4 March 2020. I find your evidence about the failure to report events, threats, attempted abductions, written threat letters to the police. The fact that you have decided not to report them … and I just question whether or not you took them seriously at the relevant time or if they, in fact, ever happened. You did not discuss them with senior people in your own village. I’m not even sure if you discussed them with your father.
If you did - certainly no action seems to have been taken. This is in direct contradiction to what you wrote in your original claims - which was that you reported it repeatedly to police. I’m very unclear about the extent to which you did any work for the polio eradication program in Pakistan and whether or not the 14 days you claim that you did for the polio eradication program was of any significance or even - that it had occurred. I’m not even sure who it was that you worked for, whether it was WHO or UNICEF or some other body which you identify as the extended program of immunisation or what the arrangements for payment were.
Your visit to [Country 1]. Your explanation of your visit to [Country 1] was extremely vague. You said that over the three months you didn’t do anything. You said that you visited relatives and family and went to places. Later when I queried this, you attempted to tell me that you had been applying for jobs. This was just not consistent with what you have originally said.
The threat letters. The third threat letter does not seem to be in keeping with the previous two so I can’t understand why that would be so out of sequence and so irrelevant to the facts of what you’ve told me unless they’re describing the incident didn’t happen.
The threatening phone calls to changed phone numbers. I just don’t understand how that can be credible. You have changed your phone numbers to escape the Taliban in Pakistan - threats of harm - I don’t understand why it was important for you to keep your contact details available on the information systems. There are all sorts of reasons why people keep their telephonic identity private in all countries.
I note that you had a passport from 2012 and you decided only to use it for the purpose of a holiday to visit an uncle in [Country 1]. And then after that you went straight back to the situation and that at no time, prior to coming to Australia, did you make any attempts to find another place to seek safety outside of your home town or Peshawar. You don’t appear to have, I think, made any genuine attempt to investigate relocation options other than those two parts of Pakistan.
Your evidence relating to what you claimed was an attempted kidnapping at the [Town 1] bazaar does not seem to be credible, nor does the fact that you didn’t even report it to police at that stage. So these things are all significant credibility questions that I have, [Mr Applicant] - - -
WITNESS: Yes.
MEMBER:I’m happy for you to have some time to think about them.
WITNESS: Okay.
MEMBER:Again, I may need to make some enquiries about how I can independently verify these documents.
WITNESS: Yeah - um - - -
MEMBER:But my - the fact that the EPI World Health Organisation letter seems to be lacking credibility because of the letterhead and the fact that the email address does not reference the World Health Organisation and - the fact that it lacks any degree of specifics relating to your work for the organisation it suggests to me that this is not an authentic document. And similarly, I have doubts about this public declaration under - well it claims to be the Rural Health Centre - were done very - it doesn’t seem to be authentic either.
If I find that these documents are not authentic documents, that in turn raises significant questions about the credibility of the witness and the credibility of the claims that you seek to be making. Given that I have ‑ given that information ‑ raised my concerns, I think it’s only fair to give you an opportunity to think about that.
WITNESS: Okay.
MEMBER:Right? And make some submissions if you wish to.
WITNESS: Mm.
MEMBER:And I am happy to receive written submissions from you on or before Wednesday, 25 March 2020. I also have no way of knowing how any of the web-based news articles are relevant to your personal circumstances.
WITNESS: Okay.
MEMBER:Generalised violence and stories of harm to particular individuals don’t assist me in making a decision unless I understand how each and every individual article relates to you specifically.
WITNESS: Okay. Member, I would like to explain a few things here.
MEMBER:Thank you.
WITNESS: Um - the reason I called WHO was to get something in written from them.
MEMBER:Yes.
WITNESS: I’m following the certificate from the EPI that’s why I called - - -
MEMBER:Well, you’ve had - you’ve had over a month to get something that proves the facts that have been in question. Prior to that you had almost three years - two and a half years to organise your answers to these credibility concerns. You had lots of notice, [Mr Applicant]. Submitting a document that is unsatisfactory does not assist you in making your claims. You’ve had lots of time.
WITNESS: Okay.
MEMBER:Not just until last Friday.
WITNESS: Okay.
MEMBER:You had two and a half years knowing that these things are credibility questions that a reasonable person might have about your claims for protection.
WITNESS: Okay.
MEMBER:On the basis of your evidence today I have more concerns the credibility.
WITNESS: Okay. I - I’ll try to contact - um - to sort out this - the Rural Health Centre thing.
MEMBER:Right. [Mr Applicant], I need to - I need to just - make it very clear to you that DFAT warns that the incidents of document fraud in Pakistan is very high. I think some of the elements of the documents you’ve already provided are unsatisfactory.
WITNESS: Okay.
MEMBER:I am happy to receive any evidence you want to put forward but I will test the authenticity and credibility of all of those documents before I make my decision.
WITNESS: Okay. I will try to - um - to get as much - as information for both these places.
MEMBER:In short please try and ensure that it’s relevant to your case.
WITNESS: Okay.
Consideration of further matters
It is clear from the foregoing extract that, in addition to raising its concerns as they arose during the hearing, at the end of proceedings I repeated the various credibility concerns arising relating to the applicant’s claims and his evidence provided in support of those claims over time. When these concerns were summarised at the conclusion of the second hearing, an explanation was also provided about how those concerns were relevant to the application for review.
During this summary, the applicant did not rely on the interpreter at any time and his responses indicate that the applicant understood what was being explained to him. Further, it is noted that the applicant’s submissions dated 25 March 2020 provide relevant information in response to the concerns in the foregoing passage of the hearing which was expressly provided in writing and by audio record to the applicant.
At the third hearing before the Tribunal on 22 July 2020, the applicant suggested that he had not requested that I should recuse myself as the Tribunal for his application for review. He stated that he simply wished for another Member to listen to the audio record.

[37]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].
205. Accordingly, to the extent that the applicant’s claims can be characterised as being based on a well-founded fear of harm in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to the Taliban in Pakistan, various non-ideological criminal thugs and other non-state actors, does not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
CONCLUDING PARAGRAPHS
206. 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)(a).
207. 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). Given the Tribunal’s findings above relating to the applicant’s core claims for protection lacking credibility in important respects, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
208. 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
209. The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Colin Huntly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…

5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 3820

10 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction