1709834 (Refugee) - [2021] AATA 1003

1709834 (Refugee) [2021] AATA 1003 (31 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1709834

COUNTRY OF REFERENCE: Pakistan
MEMBER:Roslyn Smidt
DATE:31 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 March 2021 at 2:05 PM
CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Taliban – refusal of forced recruitment – potential informer for the government – credibility issues – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Pakistan, applied for the visa on 8 August 2016. The delegate refused to grant the visa on the basis that she found most of his claims to lack credibility.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, 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.
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.
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
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
BACKGROUND & SUMMARY OF CLAIMS
The applicant is [an age]-year-old single man of Sunni Muslim religion from Haripur District in the Hazara Division of the Khyber Pakhtunkhwa (KP) province. His father is a businessman who owns and operates a [business]. His parents and [sibling] remain in Pakistan.
The applicant completed a [degree] at [a named] University in KP. He worked in Rawalpindi and resided in Islamabad prior to coming to Australia.
The applicant applied for a student visa on 26 April 2012. It was granted on 15 May 2012 and he arrived [in] June 2012. His student visa was cancelled on 28 November 2014. He applied unsuccessfully for review of that decision by the Refugee Review Tribunal. He lodged a Federal Court appeal against this decision but withdrew before a decision was reached. He requested Ministerial Intervention but was advised the Minister would not consider his case [in] August 2016.
The applicant applied for protection on 8 August 2016. He claimed that he was at risk of being killed by the Taliban if he returned to Pakistan because he had refused or resisted an attempt to recruit him. He claimed that his cousin was killed in July 2016 because his killers believed he was the applicant.
CLAIMS AND EVIDENCE
At the hearing on 25 March 2021 I advised the applicant that I understood that he feared returning to Pakistan because he believed he would be harmed by the Taliban. He said that this was his main fear. I observed that this suggested that he feared returning for other reasons and asked him to provide more information. He said that the only reason he feared returning to Pakistan was his belief that the Taliban would harm him.
The applicant said that in about 2010 while he was studying in Islamabad, he befriended some men at a local mosque. They told him that they were involved in humanitarian work and were collecting donations for refugees from Afghanistan who were living in Pakistan near the Afghan border. These men did not belong to any registered charitable organisations and did not provide any receipts for the donations, but he trusted them because they were well-thought of members of his mosque. About six months after meeting the men he began to give them donations. His father did not know them because he was still living in Haripur, but he also gave them about $2,000 to $3,000 a year.
About six months after he began to make donations the applicant asked the men to take him to see one of the refugee camps. In late 2011 or early 2012 they drove him to a location somewhere past Peshawar in an area outside the control of the Pakistani authorities. About 40 minutes before the end of the journey he was blindfolded. When he arrived, there was no refugee camp. The men took him to a big house where he was introduced to an important man in a room with many armed men. The men thanked him for the help he had provided. They told him that they were helping the Afghani people to stop drone attacks and fight the Americans and asked if he would join them as a fighter. He was surprised because the men from the mosque had only spoken about humanity. Nevertheless, he agreed to work with them, but said he could not start immediately and he would return later.
After the meeting in the remote area the applicant was taken home. He was blindfolded for the early part of the journey. He told his father what had happened and his father said that he should leave the country. He was in the process of doing his IELTS English test and applying to go to [Country 1], but he changed his mind and obtained a student visa for Australia instead. He had limited contact with the men from the mosque after returning from the border. He told them he was busy with his studies and helping his father in the business.
I noted that the Tehrik-i-Taliban (TTP) was an umbrella group and asked which group the men who tried to recruit him belonged to. He said that they did not tell him as they only gave information of that kind to people after they joined. I asked if he had ever discussed politics with the men at the mosque. He said that they had spoken about humanitarian matters, but they had not spoken about opposing the Pakistani government. He told them he was a humanitarian.
I noted that the applicant’s student visa had been cancelled in November 2014 after which he sought review at the Tribunal, lodged an appeal with the Federal Court and sought Ministerial Intervention. However, he did not apply for protection until 2016. He said that when he arrived he had been advised by a lawyer that he had only a 50 per cent chance of obtaining protection in Australia while he had a good chance of obtaining residency after completing his studies, so he decided to take the latter option. I noted that his student visa had been cancelled in 2014 and asked why he had not applied for protection then. He said a lawyer had advised him to continue with his studies and obtain residency in that way, so he continued to study and he had now obtained a degree in [Discipline 1].
I asked the applicant why he had applied for protection in 2016. He said that he had no other choice because the Minister did not intervene in his case. In addition, his cousin had been killed by the Taliban in July 2016. His cousin was driving his father’s car to a wedding when men in another car shot him and drove off. They were not caught or identified but the applicant believed that they were from the Taliban and he was the intended victim. He said that his father had lodged a report with police about his cousin’s death. He said that the Taliban had believed that he had returned to Pakistan to attend a cousin’s wedding because he had told many people that was his intention. In the end he did not return because the problems with his visa would not allow him to do so.
I advised the applicant that I had difficulty accepting his claims.
In the first place, I advised him that I was unaware of any evidence which suggested that that the Pakistani Taliban would attempt to recruit a young man who had never expressed any sympathy with their ideals by transporting him a long distance to their headquarters and inviting him to join the group. He maintained that his claims were true.
Secondly, even if I accepted that he had been asked to join the Taliban I had great difficulty understanding why they would want to kill him. He said they feared he would talk to the police and the government about what they were doing. I advised him that it was my understanding that the Pakistani authorities had a great deal of information about the whereabouts and activities of the Pakistani Taliban while he appeared to know anything of significance about their activities. He said that the Taliban did not trust him because of his failure to return as agreed.
Thirdly, I observed that the claim that his cousin was killed by the Taliban four years after he left because they believed he was the person in driving his father’s car was speculation at best. I also advised him I had great difficulty accepting that the Taliban would have any interest in pursuing and harming him four years after he had left the country. The applicant said that from the time he left Pakistan his friends and neighbours had received telephone calls from people who asked when he was going to return. The callers did not identify themselves or make any threats, but he believed it was the Taliban.
Finally, I noted that the Pakistani government had mounted a number of campaigns against groups such as the TTP with some success and even if I accepted that he had experienced some problems with them in the past, I doubted that they would expend any resources locating or seeking to harm him four years after he left the country. He maintained that his claims were true and he would be killed if he returned to Pakistan.
FINDING OF FACT
I did not find the applicant to be a truthful or a credible witness.
In the first place, I am unaware of any evidence which suggests that the TTP is involved in recruiting middle class students with no previous involvement in extremist or militant Islamic groups.[1] According to the available evidence, the TTP is an umbrella organisation and recruitment is generally a local activity with factors such as clan and tribal groups an important factor. Reports also indicate that the TTP commonly recruits individuals with a low socio-economic background, internally displaced people living in refugee camps or those who share their views and beliefs, for example, students from radical Islamic schools. There have also been reports of young boys being kidnapped from villages and radicalised in Taliban schools and the use of social media to attract recruits.
[1] For background on the TTP and recruitment see for example EASO Pakistan Security Situation Country of Origin Information Report October 2020 pp28–29 and Qazi, S H 2011, ‘Rebels of the frontier: origins, organisation, and recruitment of the Pakistani Taliban’, Small Wars and Insurgencies, Vol. 22 no.4, 574–602
In these circumstances I find the claim that members or supporters of the TTP attempted to recruit the applicant by driving him to a remote area on the pretext of taking him to a refugee camp far-fetched and implausible and I do not accept it.
Secondly, even if I accept that the TTP attempted to recruit the applicant in the manner claimed (which I do not), I can think of no plausible reason why the Taliban would have wished to kill the applicant because he did not return and become a fighter as he claims to have agreed to do. He was blindfolded when he travelled to their camp and there is nothing in his evidence which suggests that he was given or became aware of information which could have placed the group at risk if it became known to the security forces or anyone else. I find the claim that the TTP would wish to harm him to prevent him from providing information to the Pakistani authorities mere speculation and implausible. I also note that the TTP and other extremist groups were under significant pressure from government military operations during the period in question. I do not accept that they would have expended energy or resources over a number of years monitoring the applicant or attempting to eliminate him merely because he did not join the group when asked to do so.[2]
[2] For the security situation in Pakistan and Khyber Pakhtunkhwa during the relevant period see for example, EASO Pakistan Security Situation Country of Origin Information Report October 2020 pp 30; 74–75
I do not accept that the applicant was of adverse interest to the TTP at the time of his departure from Pakistan or that his cousin was shot and killed in 2016 because his attackers mistook him for the applicant.
Thirdly, there are also some inconsistencies in evidence provided by the applicant. For example, in August 2016 he said that he could not tell his father about his problems after the TTP attempted to recruit him, so he decided to leave the country. During the hearing in March 2021 he said that he told his father what had happened and his father told him to leave the country. In the written statement provided with his application in August 2016 he said that the TTP threatened to kill him after he refused to join them. At the hearing he said that he feared the Taliban but did not claim they had threatened him at any time.
I find these inconsistencies a further indication that the applicant has not provided an honest or accurate account of his reasons for leaving Pakistan in 2012 and his decision to seek protection in Australia.
Finally, I find the applicant’s failure to seek protection until some four years after he arrived in Australia a strong indication that he did not fear serious harm from the Taliban or anyone else when he arrived in Australia. He claims that he did not apply for protection on arrival because a lawyer advised him that he was more likely to obtain residency by using his qualifications. While this may explain his initial delay, it does not explain his failure to seek protection when his student visa was cancelled.
After considering all of the evidence I do not accept that the TTP attempted to recruit the applicant prior to his departure from Pakistan. Nor do I accept that he has ever been of adverse interest to the TTP at the time of his departure or at any time. And while it may be that his cousin was the victim of a drive-by shooting in 2016, I do not accept that he was killed because he was mistaken for the applicant or for any reason related to the applicant. I find that the applicant concocted these claims in order to obtain a protection visa.
CONSIDERATION OF CLAIMS AND EVIDENCE
There is no credible evidence before me which suggests that the applicant was threatened or of adverse interest to the TTP or anyone else for any reason prior to his departure from Pakistan. Nor has any evidence been provided which suggests that he faces a real chance of suffering serious or significant harm at the hands of the TTP or any other group or individual if he returns to Pakistan now or in the reasonably foreseeable future.
While the applicant stated clearly at the hearing that he did not fear harm in Pakistan for any reason apart from his claimed problems with the TTP, he observed in his submissions to the Department that there was no safety in Pakistan. I have therefore considered whether he faces a real chance of serious or significant harm as a result of the general situation in Pakistan. It is certainly true that Pakistan has a history of sectarian, ethnic and political violence and these problems are likely to continue in the future. However, the evidence does not suggest that these problems are such that all Pakistanis or all residents of KP province are at risk of serious or significant harm. No evidence has been provided which suggests that the applicant has experienced problems or been subjected to threats in the past because of the general security situation in Pakistan. Nor is there any evidence which suggests that he faces a real chance of experiencing serious or significant harm if he returns to Pakistan in the reasonably foreseeable future because of the general situation in Pakistan or KP in particular.
CONCLUSION
There is no credible evidence before me which suggests that there is a real chance that the applicant would experience serious harm amounting to persecution if he returned to Pakistan within the reasonably foreseeable future. I am not satisfied that he has a well-founded fear of persecution in Pakistan for any of the reasons set out in s.5J(1). I am therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). There is no credible evidence before me which suggests that the applicant faces a real risk of suffering significant harm on return to Pakistan. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm and I am not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
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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.
…