1700542 (Refugee)

[2019] AATA 6585

1700542 (Refugee) [2019] AATA 6585 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700542

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:4 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2019 at 11:10am

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – religion – fears harm by Taliban – previously targeted by Taliban – family targeted – lack of evidence – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION          
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [Mr A], is an ethnic Pathan, Pashto-speaking citizen of Pakistan. He arrived in Australia [in] April 2015 on a student visa valid to 9 September 2018. He lodged a protection visa application on 23 December 2015. The Minister’s delegate refused to grant the visa on 20 December 2016. [Mr A] subsequently sought review by the Tribunal.

3. [Mr A] appeared before the Tribunal on 27 November 2019 to give oral evidence and provide arguments. He is unrepresented. The Tribunal hearing was facilitated by an interpreter in the Pashto-English medium.

   CRITERIA FOR A PROTECTION VISA

4. 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, he or she 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.

5. 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 because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

8. 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 the 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 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”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

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

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

    Claims to the former Immigration Department

12. In his original protection visa application, [Mr A] claimed to have been raised in the city of Mardan in Pakistan’s Khyber Pakhtunkhwa (KPK) province, formerly the North-Western frontier Province (NWFP), the son of a [businessman]. He claimed the area where he lived was infiltrated by the Pakistani Taliban (TTP) after it was formed in 2007. He claimed that his, father, alone out of all the members of his family, did not support the Taliban, let alone actively as, he said, they did. He claimed that his mother’s relatives all supported the TTP as well, leaving his father the lone exception. He said his father was unpopular with “our race” who actively supported abduction of youths for TTP military training. He claimed that from 2007 onwards, the TTP  became more influential and controlling in KPK through its own enforcement of Shari’a Law. He said that [a number] of his cousins were mufti (Islamic preachers) who controlled the local police, the TTP, he said, kidnapping and murdering those police who did not heed them.

13. [Mr A] said his father refused to let any of his children fall under the influence of the TTP, but sent them, nevertheless, regularly to a mosque where pro-TTP mufti preached. He claimed that the mufti used to try to call them for private prayer and other meetings, with his father having to bribe them to let his sons go. He claimed he had an employed brother who used to protect him from the mufti as well.

14. [Mr A] claimed in his protection visa application form to have completed his university degree in [Subject 1] in Peshawar in [a certain year] and to have continued to reside until April 2015, which was when he came to Australia. In the same form, however, he said he studied in Islamabad from [year range] in Islamabad, where he completed a Diploma in [Subject 2]; this interlude is not necessarily inconsistent with going on to reside in Peshawar until April 2015.

15. In his statement, [Mr A] said he went with some fellow students from the university in Peshawar on a vacation to Bajaur Agency in 2013. Bajaur Agency is a rural district in what used to be the Federally-Administered Tribal Areas, bordering with Afghanistan not far from Jalalabad, and formerly much under the control of insurgent groups including the TTP, though since 2018 incorporated into KPK province under government control, having reduced the Taliban to a rump and forced its remnant members, in the main, back across the border into Afghanistan.[1]

    [1] “Pakistan's National Assembly passes bill to merge FATA with KPK,” Arab News, 24 May 2018, “President signs KP-FATA merger bill ,” The Nation, 28 May 2018,  

16. [Mr A] claimed that his father “let me go [to Bajaur Agency] … as the Pakistani armed forces controlled the city of Bajaur and it was safe to go there.” I note, meanwhile, that Bajaur city lies in the very centre of Bajaur Agency, which means that much of rural Bajaur Agency must be traversed before anyone can reach the city. One would likely have had to pass through areas that were not controlled by the government back in 2013. All of this would appear to make the confidence of [Mr A]’s anti-TTP father seem somewhat incongruous.

17. [Mr A] claimed that, whilst in Bajaur Agency, he and his friends wandered accidentally into a mountainous, tribal area in the Afghan border-region, outside of government control, and found themselves abducted at gunpoint by TTP militants. He said his group was accommodated and fed, albeit in confined and restrictive circumstances, until their identities were confirmed, whereupon they were released. Relevant to this, I note that as at 1 April 2013, the whole of Bajaur Agency was reportedly “a haven for Islamist militants,” contrary to the impression at the time as attributed by [Mr A] to his father.[2] In this light it seems odd that [Mr A]’s anti-TTP father was so confident that his son and friends would not come to any harm in Bajaur Agency.

    [2] “Pakistan: Historic Candidacy in Tribal Region,” The New York Times, sourced from The Associated Press, 1 April 2013,

18. Whereas [Mr A] claimed that the TTP militants held him and his friends only long enough to confirm their identities, he also claimed they tried to “brainwash” them all into joining the TTP. He said that some of his fellow students even indicated they would prefer to remain in Bajaur with the TTP while he and a few others said they wanted to go back to complete their studies. He said he pretended to show interest in joining the TTP later on if allowed for the present to return to complete his studies. However, seemingly incongruous with this, he said the TTP released him and the others who did not want to stay due to their constant refusals to join the Taliban. He claimed that, upon releasing him, the TTP operatives said they would monitor him. He claimed he was also physically assaulted at the time of his release by some of his fellow students who, by now, had been brainwashed. Oddly he said that when he got back to Peshawar he was reprimanded by his father “for not listening to his orders in the first place.” This seemed to be a clear contradiction of the blessing he claimed to have received from his father, as described in the previous paragraph of his statement.

19. [Mr A] claimed he fled Peshawar after he completed his degree because two of his fellow students, who had accompanied him to Bajaur and who had been won over by the TTP, came back to the university and forced him to complete their assignment for them to make up for their lack of interest in studies there. In leaving Peshawar for Islamabad, where he continued to study, he claimed to have broken his promise to the TTP to join them after graduation.

20. [Mr A] also claimed that the threat made at the time of his release in Bajaur, to have him monitored henceforth, came to some fruition when, in May 2014, after he had moved to Islamabad, he was approached by a pro-TTP mufti in a local mosque there. He said the mufti accused him of having escaped from Mardan to avoid joining the TTP along with all of his cousins. He said the mufti ordered him to return to Mardan as soon as he completed his studies and face recruitment into the TTP. He claimed to have pretended to accept the order. He claimed he then contacted his father who commenced arrangements for him to travel abroad as a student and who told him he had to flee Pakistan for his safety. He claimed his father told him that the police in Mardan had begun demanding that he produce him, [Mr A], at a police station, implying that the police were working on behalf of the TTP recruiters. He claimed that after he completed his studies in Islamabad, he resided secretly with his mother’s relatives, fearing abduction and awaiting his Australian student visa. He claimed the police in Mardan then arrested his father and forced him, the father, to call him, [Mr A], back to Mardan without delay. In this submission, all this happened after he completed his studies in Islamabad. He claimed that when he followed that request the police at the station apprehended and beat him, separating him from his father who they released. He claimed the police then called members of the TTP who also beat him for having broken his promise to join them upon his graduation from university in Peshawar. He claimed the TTP agents then blindfolded him and took him to a remote house in the former FATA where they told him he would train as a TTP militant. He claimed that his father, meanwhile, persuaded his pro-TTP relatives to intercede to have him released on the TTP’s own conditions that he leave Pakistan and never return. He claimed his pro-TTP relative acted in this way oddly notwithstanding his having claimed in the same statement that they opposed his father’s resistance to the TTP abducting youths for TTP military training.

21. [Mr A] also claimed that the TTP told him not to give details about them or join any anti-Taliban activities once he was abroad or they would send people to kill him.

22. [Mr A] said that once he arrived in Australia, his father wanted him to study and work towards obtaining permanent residency here.

23. [Mr A] also claimed his father told him that if he could not concentrate on his studies, he should apply for a protection visa .

24. [Mr A] claimed that after he came to Australia his pro-TTP cousins asked if he had returned yet to Pakistan. He indicated that this made it difficult for him to concentrate on his studies and led to his decision to lodge a protection visa application.

25. For the purposes of this review, [Mr A] submitted to the Tribunal a copy of the delegate’s decision, the primary decision in this matter. That document contains a summary of [Mr A]’s written and oral evidence to the Immigration Department; it also contains a summary of issues and factors on which the primary decision turned. Generally, the delegate found [Mr A] capable of speaking satisfactorily to his written claims. The delegate accepted he had been kidnapped and accepted that he was mistreated and threatened on occasions when he had been in TTP captivity as claimed. At the time, the delegate accepted that KPK and FATA were unstable areas where the rate of TTP-inflicted violence was high. The delegate relied, however, on [Mr A]’s having resided in Islamabad, outside of KPK province and the former FATA, and found it would be reasonable and safe for him to relocate there.

26. [Mr A] submitted to the Department a copy of a 2011 news article[3] regarding thirty teenagers who had been kidnapped from their tribe, the Mamoun, apparently after their elders had antagonised the TTP by raising an anti-Taliban militia. The delegate questioned [Mr A] in relation to this article, apparently concerned that he might have based his account of being kidnapped in the Bajaur Agency on this or similar information in the public domain. Ultimately, as noted above, the delegate did not conclude that [Mr A] had invented the kidnapping account.

    [3] “Boys’ kidnapping: Bajaur elders punished for raising anti-TTP militias,” The Express Tribune, 5 September 2011

    Submission to the Tribunal

27. On 27 November 2019, the Tribunal received from [Mr A] a submission dated 21 February 2019.

28. In that submission, [Mr A] claimed to have been told recently by his father that his, [Mr A]’s, sister’s husband had been abducted into Afghanistan by the TTP and brainwashed into becoming a TTP recruiter. [Mr A] said his sister divorced her husband but continued to suffer visits from him in which he “repeatedly said that I was selfish to leave Pakistan and move to Western country [blaming] my father for not permitting me to serve the TTP and IS[4] to save Pakistan and our people from becoming westernised.”

    [4] Islamic State, or ISIL is, according to the DFAT Country Information report: Pakistan, dated February 2019, at 2.88,  “active in Pakistan, and its regional affiliate Islamic State in the Khorosan Province (ISKP) has heavily drawn on ex-TTP for its membership. ISKP increased its operations in 2017 and 2018. ISIL had the highest death toll, and conducted five major attacks, killing 224 and injuring 301 in 2018 (compared to six major attacks, killing 153 people and injuring 380, and kidnapping and killing two Chinese nationals in Quetta in 2017). ISIL had a more significant presence in Balochistan and northern Sindh, and became increasingly involved in sectarian terrorist attacks in Pakistan and Afghanistan in 2018. ISIL was also the most lethal group during the 2018 elections, with an attacks on a political polling station near Quetta and on a political gathering in Mastung killing over 180 people in 2018. While the government denies that ISIL operates in Pakistan, security forces have claimed operational success against ISIL. JuA, factions of the TTP and Lashkar-e-Jhangvi (LeJ) Al-Alami reportedly have operational links with ISIL. It remains unclear whether IS directly commands attacks in Pakistan, or whether it claims attacks conducted by sympathetic militant groups. Security experts suggest the increasing number of successful attacks indicates ISIL is conducting its own activities. Regardless, ISKP is able to use local anti-Pakistan networks to project strength and grow.”

29. [Mr A] claimed to have heard through his father, and for his father to have heard through his daughter, [Mr A]’s sister, that he, [Mr A], on return to Pakistan would be “taken away to Afghanistan to serve the IS.” .” He claimed his brother-in-law had been asking if he had been granted permanent residence on Australia and, if not, when he might be returning to Pakistan.  

30. [Mr A] claimed his uncle [and] his son, [Mr A]’s cousin, had been involved in a murder of other relatives over a refusal to vacate a house the victims had been occupying. He described the murder as the culmination of a long property dispute in which the TTP had refused to become involved. [Mr A] claimed that the Pakistani army came to the village looking for the uncle and cousin and engaged his, [Mr A]’s, father to tell them where they might be hiding. He claimed his father did not know and told the army so, whereupon the soldiers accused him of being a TTP supporter. He said the soldiers also accused his father of sending him to Afghanistan to train with IS. All this, he said, happened after the uncle and cousin disappeared following the murders and all of that, he indicated was recent news of events occurring after he moved to Australia in 2015.

31. [Mr A] said that his father told him not to return to Pakistan because of these developments, in addition to local Mardan informants now having told the Pakistan authorities that all of his extended family is involved with the TTP and IS.

32. [Mr A] claimed that “FATA elders” had, at some unspecified time, asked his father to order him back from abroad. He said that his family has properties in FATA which the elders control and manage. He said the elders want more youths to move to FATA and buy properties there, but do not want outsiders, insisting only on people from KPK province who support the TTP and IS. He said his father had told him that if he fails to obtain protection I Australia he will end up in FATA training as a militant with the TTP.

1. Citing independent reporting about militant attacks in Pakistan in 2018 and about Pakistan’s treatment of TTP suspects, [Mr A] claimed he will be arrested on return to Pakistan because he “will not be able to establish that [he] had never served in the IS.” He said his father had heard this from his mufti cousins who said they had been questioned by authorities about “my involvement in the IS.”

2. [Mr A] claimed that the week before the date of this February 2019 submission, his cousin, who was helping his father in his [business], was abducted by the TTP and taken to Kabul. He said his father had been told to employ women so that the TTP would have more males to train.

3. [Mr A] said he cannot relocate to any other part of Pakistan because the TTP, knowing his background, will find him and abduct him.

4. Along with his February 2019 submission, [Mr A] submitted a 2015 news article reporting a suicide bombing in Mardan and listing other violent attacks in Pakistan in that year.

   Independent country information

5. DFAT provides the following description of the TTP:

   2.84 Despite official disruption efforts, the TTP and its affiliated networks remained the greatest security threat to Pakistan, with the highest overall number of attacks in 2018. TTP is the largest banned group in Pakistan and was responsible for 79 terrorist attacks across the country, resulting in 185 fatalities and 3336 injuries in 2018 (compared to 70, causing 360 fatalities and 360 injuries in 2017). The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into several separate groups reflecting Operation Zarb-e-Azb, leadership tensions and the rise of ISIL. Nevertheless, in early 2017, a number of these splinter groups re-joined the TTP or pledged support for its leader. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned. TTP's level of cohesion waxes and wanes depending on the leadership. Even when TTP undergoes cyclical splintering, the disparate networks remain dangerous and willing to break any short-term agreements they may reach with the Pakistani state.

6. The International Crisis Group recently published the following report about the situation in areas formerly within FATA and now part of KPK province:

   FATA’s merger with Khyber Pakhtunkhwa followed years of military operations against Tehreek-e-Taliban (TTP, Taliban Movement of Pakistan) militants. Those operations broke TTP’s hold over most of the tribal belt but also displaced millions of residents, destroyed homes and ruined livelihoods. Security in those areas has improved but remains fragile. Afghan insurgents, including Afghan Taliban factions and allied militants, maintain sanctuaries in FATA from which they conduct operations in Afghanistan. Human rights abuses, particularly enforced disappearances, continue, and the military still controls virtually every aspect of public life…

   Even critics of the military operations recognise that they have disrupted TTP networks in FATA.

   The tribal areas are no longer the hub for transnational jihadists that they were some years ago, when militants from across the world rubbed shoulders with their Pakistani counterparts in training camps.

   Yet the military has neither killed nor captured all major TTP leaders. Some relocated to Afghanistan. Others moved to nearby Khyber Pakhtunkhwa districts, such as Tank and Dera Ismail Khan, and revived their networks there. These areas have seen increased extortion of local businesses, killing of leaders seen as anti-TTP and other perceived opponents, and kidnapping for ransom.

   Other TTP factions with close ties to the Afghan Taliban, such as those led by Gul Bahadur and Sadiq Noor, appear to have moved their militias from North to South Waziristan.

   Well-informed sources contend that Afghan militants, too, first relocated to other parts of the tribal belt, such as Kurram, whence they had easy access to Afghanistan’s Khost province, and have now returned to sanctuaries in North Waziristan.

   “The Haqqani network [an Afghan Taliban faction long based in FATA] owns property worth billions of rupees in North Waziristan”, said Latif Afridi, a senior lawyer and Awami National Party leader from Khyber. “They started there and are still there. They only temporarily relocated to FATA’s Kurram and Hangu [an adjoining Khyber Pakhtunkhwa district]”.

   To consolidate control, the military has relied on “peace committees”. In reality, these are pro-state militias, comprising what many FATA activists refer to as “local thugs”, that have fuelled conflict … While the military disbanded some of these militias due to local opposition, those that remain continue to target opponents and indulge in criminal activity, including drug and arms smuggling, with few restrictions.

   That militant networks have revived is evident in the higher rates of violence and casualties in the past year. A FATA-focused NGO noted a 16 per cent rise in militant attacks and a 37 per cent rise in the number of casualties in 2017, compared to the year before. Many such attacks have taken place in tribal agencies that the military had supposedly rid of militants, such as Mohmand and Bajaur. Kurram, with its large Shiite population, was particularly volatile, with at least 115 people killed in three attacks in the first six months of 2017 – two of them targeting Shiites.

   Attacks have continued this year: in January, five civilians were killed in a bombing in Kurram; in February, a military convoy was attacked in North Waziristan; the same month in Bajaur, an anti-Taliban leader was killed. Militants have also resumed targeting girls’ schools and threatening families who send their daughters to school.[5]

   [Tribunal’s emphasis]

   [5] “Shaping a New Peace in Pakistan’s Tribal Areas,” International Crisis Group, Briefing 150 / Asia, 20 August 2018,

7. Attempts to inflict harm on Shi’a communities have continued with mixed success in the former Kurram Agency since the Pakistan authorities took control of the former FATA. In June 2018. One example is the foiling of a bomb plot in a fruit market in the town of Sadda.[6]

   [6] “Security forces foil terror bid in Kurram,” The News, 13 June 2018,

8. I note that a bomb was exploded in a tribal area market in Orakzai Agency, which sits beside the former Kurram Agency in KPK province, killing over thirty persons.[7] Whereas this attack occurred on the other side of Parachinar from where Borki is situated, it has nevertheless been viewed in Pakistan as evidence of ongoing capacity on the part of the Taliban to conduct terror attacks on tribal minorities in the area.

   [7] “Orakzai bomb blast toll rises to 33, with 56 injured at Friday market,” Samaa, 23 November 2018,

9. Pakistan Today, reporting on 30 May 2018, gave a positive view of the merger of FATA into KPK province, with particular reference to the benefits that the rule of law would bring over time.[8]

   [8] “Greater KPK,” Pakistan Today, 30 May 2018,

10. UrduPoint reported[9] a small decrease in crimes such as kidnappings in 2018 compared to 2017:

    Seven incidents of kidnapping for ransom took place during the current year as compared to 20 in the year 2017. In crime against property 245 cases of robberies and 62 cases of extortion occurred during the current year as compared to 263 cases of robberies and 71 cases of extortion.

    [9] “KP Witnesses Reduction In Crime Rate In 2018: Police,” UrduPoint, 20 December 2018,

11. DFAT’s Smartraveller page, however, updated on 5 March 2019 and marked current as at 24 May 2019, provides the following advice for the entire KPK province in Pakistan, with the exception of the Chitral city district: “We advise against all travel here due to the very high risk.”[10] DFAT provides the same advice in respect of all areas in Pakistan that border with Afghanistan.

    [10]

12. Human Rights Watch reports:

    On July 13, [2018] … four people were killed and at least 32 injured, when the convoy of Akram Khan Durrani, a senior political leader of Muttahida Majlis-e-Amal (MMA), was targeted in a remote-controlled blast in Bannu district, Khyber-Pakhtunkhwa. Durrani survived.[11]

    [11] “Pakistan: Events of 2018,” World Report 2019, Human Rights Watch,

    Evidence given at the Tribunal hearing

13. [Mr A] told me that his father still runs his [business] in Mardan. He said his mother is a housewife. He said his parents still live in the same house in which they raised their children. He said he has [a number of] sisters. He told me he has [a] brother who works as an [Occupation 1] in a [company]. He described to me the educations that he and his brother received in Pakistan: secular educations received at government or semi-state schools and secular universities. In particular, [Mr A] confirmed to me he completed his advance diploma studies in Islamabad before coming to Australia. He said that when he finished his advance diploma he applied to study in Australia. In this description of events, his Australian student visa application flowed directly on from his studies in Pakistan.

14. [Mr A] told me he first studied English in Australia at [a] College and, according to information in his protection visa application form, he completed that course in June 2015. He then went to [a second college] to commence a three-year Bachelor of [Subject 3] and [Subject 2] degree course, but was unable to continue after November 2015 due to illness: he came down with [a medical condition] a month after he arrived in Australia and required an operation in December 2015 after which, he said, he was unable to study for six months. [Mr A] told me that he was excused from study as of November 2015 and was prevented by his illness from sitting his first semester examinations. He said the Institute told him he would have to sit the whole first semester again which, he was not able to do. He told me he had already stopped attending the Institute, unable to study, when he lodged his protection visa application.

15. I asked [Mr A] about the sister who had divorced her husband. He said this sister used to live with her former husband’s family but used to come back home when she suffered beatings from her husband. He told me his sister obtained a divorce from her husband in November 2018. He said his father and brother had registered a case against his former brother-in-law in a [court].

16. [Mr A] also said that his former brother-in-law had been kidnapped by the TTP in March 2018. He thus indicated that his former brother-in-law must have been brainwashed by the TTP in a matter of a few months. He also said his former brother-in-law used to torture his wife purely to get information from her about him, i.e., [Mr A]. I asked [Mr A] the location of his former brother-in-law’s visits to his sister, and he said these all happened in a [specified] college that his sister no longer attended. This would mean that he used to torture her there: in a public place. It also suggests that the brother-in-law did not start abusing his wife until after he was kidnapped and brainwashed during those few months in 2018.

17. It struck me here that [Mr A]’s evidence changed: beginning as an account of domestic violence, involving the victim seeking refuge from her parents from time to time, and becoming an account of torture and interrogation in a third location.

18. All of these claims are unsupported, notwithstanding [Mr A]’s claim about formal charges having been lodged in a [court].

19. [Mr A] went on to say that his former brother-in-law had been a regular mosque attendee before he was kidnapped and used to attend meetings in the mosque as well as prayer. He said this man also used to go on Islamic preaching tours as well. When I asked if his brother-in-law might not have been kidnapped, he said he had been “picked up from the [business]” he used to own and operate.

20. [Mr A] described his former brother-in-law’s [business] as a kind of small [business]. I asked him what happened to the [business] after his brother-in-law was kidnapped into Afghanistan, brainwashed by the TTP and began torturing his sister to provide information about him. In reply, he said his brother-in-law’s friends and neighbours run it now. I asked him how the business could have passed to them and he said it just did. I recall that the former brother-in-law had his own family including a brother. I asked [Mr A] how it would have been possible for friends and neighbours just to move in and take over the business and he then changed his description of the people who took it over: he said they were his former brother-in-law’s employees. This, however, was not how he described those people in the first place. It seemed odd in the circumstances for him to have first described these people only as friends and neighbours. [Mr A] appeared to be improvising his answers to these particular questions.

21. I asked [Mr A] about his brother the [Occupation 1]: according to information in the protection visa application form, he was born in [date], would have been [a certain age] when the TTP was formed and still only [a] teenager, throughout most of 2011, when the TTP was reportedly still strong in KPK province and the former FATA region; and yet the TTP and the former brother-in-law appeared never to have shown any interest in him. I asked [Mr A] why no interest had ever been shown in his brother and he said his brother works in a [company] and [undertakes a certain activity], which is something the TTP and IS both like. I put to [Mr A] that, according to his earlier description, his brother is an [Occupation 1] in the [company], not [the other role], and he confirmed this to be the case, but said his brother uses his contacts in the [company] to [undertake a certain activity].

22. [Details deleted], it still seemed somewhat odd, in the claimed circumstances, that no-one in the TTP had ever tried to recruit him into TTP “training”.

23. I asked [Mr A] about his relatives who are mufti. He said his [uncles] operate various madrassa. He said he has [another] uncle who fled his home after the (property dispute) killing(s) because the army was looking for him. He told me the army now controls the area, with the TTP having fled it. I put to [Mr A] that, according to independent country information, the TTP had generally been splintered and in retreat throughout all of the areas it had previously controlled, back when he was living in Pakistan. He acknowledged this to be the case, but then suggested that there are still pro-TTP mullahs in mosques in Peshawar and some other places about whom the media have not adequately reported. He said these sympathisers still recruit people for “training”.

24. I put to [Mr A] that, according to DFAT, violent acts by Islamist insurgents had reduced over the last few years. [Mr A] told me that the TTP presently controls the city of Mardan where his family lives. He also said at the hearing that the TTP controls the police in Mardan having killed off several loyal police and replaced them with “embedded” pro-TTP officers.  I put to [Mr A] that his position is contradicted by independent country information found in human rights reporting and media items[12], notwithstanding isolated instances of violence such as suicide bomb attacks in government buildings and public places in Mardan in 2015 and in 2016. I note in particular that several police were killed by a TTP assassin in a suicide bombing in a courthouse in Mardan in 2016 after colleagues had acted to protect a Christian colony near Peshawar[13].

    [12] Women University Mardan Scholarships,

    [13] “Pakistan bomb blast kills a dozen police and lawyers at Mardan court,” ABC News, 2 September 2016,

25. In response to the position I put to him about the state being firmly in control of Mardan, [Mr A] merely digressed, saying that people at the local mosque ask his father about him. Ultimately he did not give a satisfactory response to my suggestion that his claim about the TTP controlling Mardan and being in cahoots with Mardan police was misleading.

26. I put to [Mr A] that the TTP had evidently splintered since 2014-15, having become riven with internal conflict. In reply, he said the TTP still runs some mosques and madrassa. He said they send people to FATA and to Kabul. I asked [Mr A] if he was aware of significant events affecting the FATA since 2017 and he appeared not to be aware of any new developments there. I asked him who now controls the FATA and he said the TTP does, which, according to independent evidence cited above is incorrect, notwithstanding some pockets of TTP influence in the former FATA region. [Mr A] said the Pakistani government cannot do anything in the FATA because the population there is one with the TTP which confiscates properties and sells them to Pashtuns.

27. I put to [Mr A] that the Pakistani authorities – the government and its ministries, the courts, the army and the police – had taken control of the former FATA and incorporated them all into KPK province. He then said his father had mentioned that to him, a claim that seemed implausible since he had just been telling me that the place in question is still called the FATA and that the TTP controls it, and added that his relatives have told his father that he has to join the TTP. He said the army thinks he has gone to Kabul to join IS because people in Mardan saw him being taken away from the [location] by the TTP.

28. I questioned the way [Mr A] portrayed the TTP and IS as though they were amalgamated, or the same, or interchangeable concepts, whereas IS has reportedly exploited desertions from the TTP, which, logically, would contribute to the weakening of the TTP. [Mr A], on the other hand, had claimed in writing that his former brother-in-law had been brainwashed by the TTP to demand that he come back to Pakistan and join IS. This seemed nonsensical. When I put to [Mr A] that his evidence seemed to be weakened by this suggestion that each of these the two groups acted explicitly on behalf of the other, he simply said they were linked.

29. I asked [Mr A] when his uncle had been involved in the killing(s) discussed above, and he said, “May 2018.”

30. I asked [Mr A] when the police arrested his father and he said that happened in May 2014. He said he returned to Mardan from Islamabad in the same month. I asked if the police arrested his father because they suspected he was pro-TTP and he said this was not so, the police having arrested his father “asking [for] information about me.” He stressed that the police in Mardan at the time were in cahoots with the TTP. Based on some of the material [Mr A] had submitted about TTP assassinations of senior police officers in KPK in and around 2015,I put to him that it seemed more like the police were opposed to and by the TTP at the time. In reply he said this was not so” “They were with the TTP who came and took me.” He said the TTP tried to persuade him to join them after they took him away blindfolded from the [location]. He said they released him after about one or two weeks because his father asked his pro-TTP mufti relatives to intercede and they agreed to do so.

31. I asked [Mr A] to confirm when he completed his studies in Islamabad, and he said, “June 2014.” In his protection visa application form, he said he completed his studies in July 2014. I put to him that in his original submission to the Department (discussed in paragraph 20 above), he had claimed that he had already completed his studies in Islamabad before he returned to Mardan to see his father at the police station: he was now seeming to place events of May and June 2014 in reverse order. In response, [Mr A] digressed, saying that he studied in Islamabad after finishing his studies in Peshawar, and thus failed to provide a satisfactory explanation for this discrepancy. I then put to him that in his statement to the Department he had claimed that he had already completed his studies (either in June or July 2014, depending on his versions of events) before he was abducted from the [location]. In response, he said he finished his course in Islamabad in June 2014 and that his father was arrested (and therefore he was abducted) before that. Again, he did not appear to resolve the discrepancy; rather, he was simply settling on one version of events in spite of the other.

1. I asked why [Mr A]’s pro-TTP mufti relatives took his side and had him released from having to perform militant training or other service with the TTP; more to the point, they advised him to leave Pakistan. In response, [Mr A] confirmed that his pro-TTP relatives advised him to leave Pakistan. I asked him why they had acted seemingly so strongly against their own interests in recruiting for the TTP and he said they could see how much his father did not want him to join the TTP. I put to [Mr A] that this seemed somewhat implausible and that the mufti relatives could simply have told his father “No.” In response, [Mr A] changed his evidence, saying his relatives acted in the way they did because his father bribed them with money. I put to him that this seemed to be a new and improvised claim and he said that he had mentioned it in his original submission. I then reviewed that submission and found no such reference to bribing as a condition of his release from the TTP in 2014. Instead, there is a reference to his mufti cousins securing his release apparently solely on the condition that he leave Pakistan permanently. I told [Mr A] that he had not previously made any claim about his father having bribed the mufti relatives, and he then said his father told him he had done just that. Meanwhile, these are evidently the same mufti cousins who, according to the February 2019 submission, will take him straight to TTP militant centres in “FATA” or Kabul if he ever returns to Pakistan, and who, according to evidence at the hearing, have told his father that he must return to Pakistan to join the TTP, which again makes it seem odd that they ever pressed him to leave Pakistan in the first place. His evidence on this point was confused and inconsistent.

2. [Mr A] went on to say that his mufti relatives will not allow him to lead a secular life. This did not appear to sit with their allowing his father and brother to do so. I asked him why his mufti relatives were so lax, as all other TTP supporters appeared to be, with regard to his brother, and he said his brother prays, has mufti friends and is outside the “age limit” for recruitment. I asked what this so-called “age limit” might be and he said, “[age].” I asked him how old his brother is now and he said, “[that age].” I put to him that it seemed odd that his brother had just spent the last several years under that age limit (he had been only [a teenager] for most of 2011, for example) and had still not attracted any recruitment interest from the TTP. In response, [Mr A] said his brother works [a number of] days a week in the [company] and spends the rest of his time in mosques and madrassa. Elsewhere, in his original statement to the Department, he claimed that members of his family did not attend madrassa and that his brother used to protect him from people trying to brainwash him. He told me his father and brother had been left alone because they pray regularly, whereas he himself is a “youngster” who is therefore of a good age for training. I asked [Mr A] to state his age, and he said he is [age]. I put to him that he appeared to be out of the teenage range from which the TTP reportedly selects its young recruits for training in Afghanistan (being 15 to 18, or 12 to 17, according to various sources[14]); in reply, [Mr A] said his uncle will find out if he returns.

   [14] “Afghanistan: Taliban Child Soldier Recruitment Surges: Children Trained in Madrasas to Fight, Plant IEDs,” HRW, 17 February 2016, “‘The Taliban Made Me Fight’: What to Do With Child Recruits After They Serve Time?,” The New York Times, 13 January 2019,  

3. [Mr A]’s claim about having hidden at the homes of his mother’s relatives after completion of his studies in Islamabad did not appear to sit with his evidence of having resided at an address in Peshawar up to the time of his departure for Australia, according to entries in his protection visa application form; it also seemed odd because he claims his mother’s relatives are TTP supporters. I asked him to clarify and he said that the relatives he stayed with were more distant relatives than the ones who were pro-TTP.

4. I put to [Mr A] that in the event of his return to Pakistan he would be able to show Pakistan authorities that he had been in Australia all the time since he last left and that this would put paid to any misapprehensions about his having been in Kabul; he agreed with this.

5. At one point in the hearing, I put concerns to [Mr A] under the protocols of s.424AA regarding his original submission containing similar claims to those in another case where the applicant’s submission was similarly formatted. The factual similarity in each case involved agitation from a cleric in a mosque for the applicant to join the TTP. [Mr A] opted to give his comments and response immediately and, on reflection, I do not regard the originally-perceived similarity as sufficiently significant to be a reason or part of a reason for refusing a protection visa in this case.

6. [Mr A] told me that after he recovered from his [operation], he was able to resume studies, although at a different institution doing a different course which he completed in [year].

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

7. [Mr A]’s claims relate to the s.5J(1)(a) factor of “political opinion” and, in some lights, “religion”, given, for example, that he claims the TTP has discriminated between him and his brother on grounds of perceived piousness.

8. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[15] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[16]

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

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

9. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[17] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[18]

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

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

10. In the present matter, I find and give weight to the fact that the Pakistani authorities including the military and the police have brought KPK province back under state control since launching Operation Zarb-e-Azb in 2014-15. I also accept that IS displays a presence in Pakistan through similarly violent activities from time to time in different locations. However, this does not of itself mean that either group is trying to recruit or punish [Mr A] personally. I do not accept [Mr A]’s evidence suggesting that the TTP and IS are working with and for each other, hand-in-glove, as it were, in Pakistan to a point where a person very recently abducted and quickly “brainwashed” by one group tries to recruit people for the other; I find that claim far-fetched. I give some small cumulative weight to [Mr A]’s claims about his brother-in-law having been altered in the course of examination at the Tribunal hearing and conclude he was improvising and embellishing this part of his evidence. I nevertheless accept that his sister divorced her violent husband and moved back in with her family.

11. I accept that the remnant TTP still conducts occasional, violent activities in KPK province in Pakistan and that, to a lesser extent, splinters of the same group perpetrate sporadic attacks in other parts of the country. I do not accept the suggestion that the TTP, let alone any of its remnant splinter groups, is in control of any part of the recently-expanded KPK province, let alone anywhere else in Pakistan. In particular, I find that [Mr A]’s claim about the TTP controlling Mardan and surrounds in misleading. Accordingly, I do not accept that the police in Mardan are in cahoots with the TTP or IS, if they ever were: [Mr A]’s evidence varied problematically between saying the police in Mardan are on the side of the TTP and claiming that the TTP has embedded sympathetic officers in an otherwise antagonist police force.

12. Notwithstanding evidence presented in this case about the Taliban having kidnapped youths in the former FATA and other places, and about having taken them off to Kabul for indoctrination and the like, I consider it far-fetched that the police in Mardan would have arrested [Mr A]’s father, a well-known [businessman] and well-regarded [local businessman], according to [Mr A], simply and solely as a ploy to get his then [age] son to present for TTP militant training.

13. I find that [Mr A]’s claims about being within an “age [deleted]” TTP-recruitment age-limit that logically excludes his [same aged] brother are unsupported, as well as being somewhat contradicted by independent evidence regarding the age range for TTP recruitment of the kind described in his claims. In addition, as discussed, [Mr A]’s brother was well within that age range for several of the last ten or twelve years and yet the TTP has never shown any interest in him. [Mr A]’s explanation is that his brother works in a [company] that [undertakes a certain activity], earning him a charitable profile with the TTP. However, I give very little weight to that explanation, since [details deleted]. I give some weight to the fact that [Mr A]’s brother did not always work in a [company] that [undertakes a certain activity] and yet he was evidently still never the subject of TTP interest such as [Mr A] claims to have suffered for several years. I give no weight to [Mr A]’s claims about his brother having been pious enough for the TTP to have no interest in recruiting him, as no evidence before me suggests that TTP recruiters ever overlooked the pious in preference for opponents. In addition, [Mr A]’s claims about his brother’s piety do not sit with his earlier written claims about his brother having protected him from recruitment and other exploitation by Islamists. Ultimately, I give no weight to [Mr A]’s claims about why he was or would have been singled out for recruitment by the TTP (or for that matter IS).

14. I find on that [Mr A]’s claims about the role of his pro-TTP mufti cousins in having him released by the TTP are reliant on inconsistencies. At one point, he said they acted out of empathy for his father; at another he said they acted out of mercenary interest, and failed to resolve the two differing claims by merely referring me to purported earlier evidence that in fact he had not given. Similarly, I find that the intent of the mufti cousins as described by [Mr A] is confused and contradictory, such that I find his evidence on this point unreliable: on the one hand they want [Mr A] to leave Pakistan forthwith never to return; on the other, they essentially await and even demand his return so that he can be recruited into the TTP.

15. I find that [Mr A] gave confused and inconsistent evidence about the months in which he finished his studies in Islamabad and faced the police and the TTP back in Mardan. I gave [Mr A] an opportunity to resolve discrepancies about this because it is reasonable to expect that the vagaries of memory, particularly over time and under stress, can lead to events being recounted at different times in different order. Ultimately, [Mr A] did not provide a satisfactory explanation for the discrepancies and failed to resolve them.

16. Whereas [Mr A] claims his mufti cousins purportedly told him to leave Pakistan without undue delay and never return, he claims he remained in Pakistan a further nine or ten months. Meanwhile, his evidence about how he avoided being captured by the TTP is somewhat inconsistent: in one version of events, he continued to live in Peshawar where he had lived during his studies there; in another, he hid by moving amongst the houses of relatives who, he said, were more distant relatives than the ones who were trying to help place him in the TTP. Having considered these claims, and the quality of [Mr A]’s evidence overall, I do not accept that he hid between the time of finishing his studies in Islamabad and the time of his departure from Pakistan.

17. In view of numerous deficiencies in [Mr A]’s evidence in this case, I do not accept that he took a holiday in the former FATA in 2013, let alone that he was abducted there by TTP or pro-TTP tribesmen. Even his evidence about this episode, which he has presented as somewhat of a foundation for all that purportedly followed, is problematic: he has variously described the trip as having had the blessing of his father and as having taken place over his father’s objections. Accordingly, I do not accept he struck a bargain with the TTP to allow him to finish his secular [Subject 2] and [Subject 3] studies in Peshawar before having to present for TTP training. No evidence seen in this case supports the suggestion that the TTP ever waited for young men to finish their secular educations before being inducted into training as militants.

18. It follows that I do not accept that [Mr A] broke a pact with the TTP when he went to Islamabad to study for his diploma. It follows that I do not accept that the TTP engaged a mufti to approach him in a mosque in Islamabad with a demand that led to a further bargain about completing studies first. It also follows that I do not accept that the TTP then raised the stakes by causing the police to arrest [Mr A]’s father in Mardan as a lure.

19. I do not accept that [Mr A] will be abducted to the former FATA, not least because the information he gave me about the former FATA and the parties controlling that area is significantly out of date.

20. In the midst of these claims, numerous of them undermined by contradictions, inconsistency, implausibility and, in some cases, evident improvisation, [Mr A] gave a simpler account to me of what happened to him over the last half decade: he finished his degree in Peshawar; he then completed a diploma in Islamabad and applied for a student visa for further study in Australia; he stayed several months in Pakistan awaiting the issuing of his visa and then left; he commenced studies in Australia consistent with evident long-term ambitions in [Subject 3] and [Subject  2] and, at a time when he found himself unable to study due to illness, he lodged a protection visa application, positioning himself after recovery from his illness to continue related studies at a new school.

21. Having considered all of the evidence before me in its entirety, however, I am not satisfied that [Mr A] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Pakistan are not well founded. He is not a refugee.

22. I also find in any event, that [Mr A] could safely, reasonably and practicably relocate to Islamabad if he prefers not to reside in Mardan, where his family continues to reside, or anywhere else in KPK province.

23. For the reasons given above, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

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

25. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

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

27. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

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

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

30. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

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

1. I find that the harm [Mr A] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

2. [Mr A]’s claims to complementary protection are essentially the same as his refugee status claims. Since his claims have failed as refugee status claims, largely for want of credibility,  they can no more succeed as complementary protection claims.

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

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

   Other findings

5. There is no suggestion that [Mr A] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

   DECISION

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

Luke Hardy
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.

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36     Protection visas – criteria provided for by this Act

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(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.

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