1712358 (Refugee)

1712358 (Refugee) [2020] AATA 1281 (11 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712358
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Michael Hawkins
DATE:11 February 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 11 February 2020 at 12:46pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – practicing Muslim – Christian sympathiser – offered land to Christians to build a church – worked with Christian Pastors – particular social group – Social Worker working with NGOs – involvement with the polio vaccination scheme – research on birth control and family planning practices – preparation of report on murder of Christian girl – credibility assessment – Departmental interview – quality of interpreting – impressive witness – enthusiastic and detailed explanation – delaying in leaving Pakistan – delay in applying for protection – limited funds and no professional assistance – voluntary return to Pakistan – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Shi Chu Lin v Minister for Immigration and Multicultural Affairs [1999] FCA 192
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 7 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 5 May 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:
The applicant is a [age] year old man from Sahiwal in Pakistan. The applicant applied for a [student] Visa on 23 January 2015. The Visa was granted on 6 February 2015.
The applicant arrived in Australia for the first time [in] February 2015.
The applicant departed Australia [in] September 2015, returning to Pakistan. He returned to Australia again [in] November 2015.
The applicant departed Australia again [in] June 2018, travelling to [Country 1] for a holiday. He returned to Australia [in] July 2018.
The applicant lodged an application for a Protection Visa on 6 May 2016.
The applicant attended an interview with the Delegate on 2 June 2017 via video conference.
The Delegate refused the applicant’s application for a Protection Visa on 7 June 2017.
Claims:
The applicant and Representative dispute the summary of claims as contained in the Delegate’s Decision.
Accordingly, the Tribunal has set out the applicant’s claims in detail taken directly from three documents, being a statement of the applicant attached to his Protection Visa Application dated 6 May 2016, a Statutory Declaration of the applicant dated 1 April 2019 and a Submission from the Representative dated 6 January 2020.
Statement lodged with Protection Visa Application
I, [the applicant], make the following statement in support of my protection visa application.
1.I was born on [date] in my native village [Village 1]. I am resident of [Village 1] and district Sahiwal, Province Punjab, Pakistan.
2.I was born Ahle- Hadith Muslim; my entire family is Ahle-Hadith Muslim. My both maternal and paternal side family is born Ahle-Hadith Muslims.
3.My village [Village 1] is located in west of Punjab, the closest town /station is Sahiwal is one of backward area of Punjab, Pakistan. Sahiwal is approximately 180 km from the major city Lahore and is situated between Lahore and Multan.
4.My father name is [Mr A], born on [date], formally known as [Honorific 1]. He joined [employer] [in] 1978 and retired in 2012. being only [Occupation 1] in locality in 200 KM area at that time with no [infrastructure] & nearly zero number of [customers], apart from work duties he also performed social welfare tasks.
5.My father also started noble task by starting [specified] services in 1985 in order to provide people facility to approach nearby town to buy medicines, clothes and other essential needs. Later in 2003 we face a lot of opposition in getting [infrastructure] approved by government.
6.In the year 1985, my father initiated another noble task in order to accommodate the people of village. He began operating [specified service], enabling people to have full access to the basic necessities of life such as medicines, soaps, clothes etc. He had to face a lot of opposition from resourceful people of Sahiwal particularly politicians and landlords.
7.Political party PMLN (Pakistan Muslim league noon), members are very resourceful, they never wanted people to be independent. They just want people to be illiterate not to understand the right to vote and get proper education, in other words, these people want rest of villagers to be their slaves only. We raise the voice of people in area therefore, me and my father received a lot of threats, we were physically being beaten up and detained during election campaigns.
8.My grandfather was appointed as Lumberdar. Now my Uncle (father's brother) is incumbent Lumberdar of area. Also head of Panchayat we have panchayat system in our town, our dera (setting place for male members) is main gathering place for Panchayat.
9.We are [a number of siblings]. [Details deleted].
10.I got married [in] march 2011 at the age of [age]. My wife name is [Ms B], she also belongs to Ahle-Hadith Muslim family.
11.I am blessed with two [children]. My wife and kids are currently residing with her parents' house.
12.In whole Sahiwal region I am known as [social worker]. I always help people in need.
13.In the year 1992 when my mother [was] pregnant with [a] child, few complications arose, my father wanted to take her to doctor for medical examination but rest of male members of family were not willing as Islam does not allow us to get physical examination done by male doctors, neither the use of scissors(iron) is allowed to touch woman's body. Consequently, she died at home due to lack of medical treatment before giving birth to her [child].
14.She left us orphan, [details deleted]. The entire life I spent without my real mother, even without the presence of anyone who could behave motherly to me & rest of siblings.
15.This incident left prominent remarks on my personality and I decided to help poor children and families. I start [working]] in our town after completion on matric, in order to spread awareness to people of village.
16.I obtained my primary [education]. I achieved Secondary school certificate in [year]. In 2002, my life took a unique turn when [I] happen to visit Lahore city for [specified] purpose. There I saw an old beard man, with a Black cap on his head, bagging funds not for himself but for needy & homeless people. I use to watch his clips & photo on television. I was so impressed & decided to be like him. That noble man was Abdul Sattar Edhi.
17.One thing I loved about Edhi organization, they do not discriminate on bases of faith, caste, color, race etc. Every dead or alive is being dealt in a same manner. Most of the staff working in Edhi cemetery department, child care, aged care department are Christians. It also left a big question mark on face of my faith, Islam. While voluntarily working with edhi organization, I participated in welfare activities such as [specified].
18.At the age of [age], in the year 2003, I took active participation in polio vaccination scheme, by government of Pakistan. As it is duty of Lumberdar to provide, place to polio team, which visit the village to distribute Polio drops for kids under the age of 5. I become first person in town to execute the polio vaccination scheme, that was another time when I face huge opposition, Molana of mosque issued fatwa in my name as I was conducting un-islamic act by feeding kids with polio drops. In people's opinion polio drops have got some haram ingredients in, I had no issues with it & I was deliberately violating their faith by feeding them haram things.
19.After completion of Higher Secondary School Certificate in [year]. I left my village & move to Lahore city, I was mentally so tired because of ill behaviors of political figures and jagir darana system. I left my town in order to search for my true identity. I got admission in [an educational institution] in Multan and completed my graduation privately in [year] from [University 1]
20.After mob's rampage in sangla hill in 2005, in which kids, girls, nuns all were being targeted and killed. To show my condolence I first time enter into church, that day I cried a lot, there I felt presence Allah, I was sitting in front of cross & I ended up recalling all incidents what extremists Muslim groups are doing to Christians. I was not communicating with Jesus, but with my own self.
21.Due to my frequent visits to church for social welfare work, [Pastor C], started interacting with me. He preached me regarding Jesus's massage. I decided to help him It was nearly impossible for Christian community to open church in Sahiwal area, I a lot my own land into church name , in order to provide Christians place to perform their religious obligations. Was fallowing path set by Prophet Muhammad (PBUH). This behavior become very harsh for Muslim community, Sunni extremist groups started accusing me as enemy of Islam.
22.My whole purpose was to help the minorities.
23.After graduation in [year], I got admission in [University 2], [Discipline 1] department. I resumed my voluntarily service with eidhi organization, later I become part of [NGO 1] and performed many wallfare tasks, such as [specified].
24.During 1st year of my [degree] in 2009, I did internship to prepare report on concepts that "most of mosques/ maddsrs give birth to extremists". When I started visiting shrines, mosques and maddaris of different sects, members of jamat ul dawa started following me, they sensed as if I am being appointed by some foreign agencies & I may be their reporter.
25.President of, lslami Jamiat-e-Talaba [University 2], [Mr D] call me to his office, there he was sitting with, two other Afghan region man with beards, they were looking at me with strange angry eyes. They ordered me to stop visiting mosques, shrines for research purpose and hand over to them all documents prepared as part of report, they also took my cell phone and advised me not to dare to block the sim, they wanted to use it and investigate the matter.
26.In 2010, I join [NGO 2]. I worked on several social welfare projects during these two years, I also participated in sawat military ranger's operation against Taliban. [NGO 2] was carrying out wall fare acts for local residents of Sawat, when it was total under occupation of Taliban.
27.During operation in Sawat, my duty was in camp, where we were providing first aid to injured people. I was the one who use to visit Islamabad to bring food, medicine and other necessity things for general residents of swat and nearby towns.
28.I was being attacked by gun shots from Taliban while carrying out my duties, but I luckily survived police rescued us. I also started receiving threats from Jamat ul Dawa as they were aware of it that I am providing assistance to wounded and needy people in swat area during operation by military.
29.In 2011 December, 10 fully armed people attack at our deera in Sahiwal, they beat my father and rest of female member's family. They clearly announced on our dera, stop your son [the applicant] from participating in projects of foreign NGOs, also prevent him being part of military swat operation otherwise we will kill the whole family and hang your heads in center of dera to set example for rest of locality.
30.My father informed me about the incident. I immediately left the employment and went back to my family. I was shocked and very much concerned about safety of my family.
31.[In] 2012, when I was working on a project handed over by [NGO 2], [details deleted]. I was brutally being attacked by fundamentalist group of people, I was able to recognize few of them but rest were completely unknown to me. They stabbed me to death, ending up causing severe injury to my skull with rod, exposed the skull bone, several hits in my stomach with gun stock, they all were armed. Luckily none of them fired. Due to head injury I was severely bleeding and went unconscious, they consider me dead and left.
32.It was right outside the gate of church, [Pastor C], took me to hospital and informed my family he saved my life. My father visited the police station, they refused to register F.I.R as religious matter was involved. My cousin seeks orders from Magistrate for medical examination and case registration. Otherwise even doctor was not willing to do my medical examination. But even after medical examination and orders by magistrate Police refused register FIR.
33.After months of bed rest, I knew that I could not openly condemn religious extremist's groups in Pakistan as I would end up in the same way which other people gone through, who took step against these authorities.
34.I contacted a [Country 2] university representative in [Lahore] & handed over to him all copies of educational and employment documents for student visa, I was aware of it that members of Jamat ul dawa are now after me and my visits & funding for church building will soon also be exposed, then they will surly kill me and my kids. They were following me like shadow.
35.After several inquiries, education agent informed me that there was an incident of theft in his office & my passport is lost along other documents.
36.I knew I had to get away from Pakistan now.
37.I moved to Islamabad, where I applied for Job in government department. I was appointed to [Workplace 1]. The Polio scheme was also working under our department. I was constantly receiving threats from Islamic Jamayat Talba, due to my social welfare activities and participation in polio scheme, it was like any moment a bullet would hit me. Where ever I go I could visibly see them following me.
38.In January 2015, I applied student visa and arrived here [in] Feb 2015.
39.I never get any chance to play with my kids and love them.
40.I was still dealing with traumatic experiences of attempted to be murdered, in which I almost died and saved by Allah. I felt like I owe my life to humanity now & this is my second birth.
41.I knew that even my family would not allow me to participate in any welfare scheme, with help Christians and other ministries rights. Therefore, I took this decision at my own I left that country.
42.I tried convincing my wife to accompany me but she was not willing to leave that culture, her relatives and her people. She did not agree with my idea of leaving but she saw me suffering and could see and understand my mental condition this allowed me to leave.
43.When I arrive in Australia in February 2015, I could not have kept my studies continue because of high level of depression, my wife and kids were all alone. I was feeling as if I left them to die there.
44.Due to global image of Muslims in west, I had misconception that I would be treated the same way, with contempt that Muslims would treat a Christian if they dare to go to mosque.
45.Then I start visiting community center I found them completely different.
46.In September 2015, my family directly targeted by Pakistan Muslim League Noon group members, as we always support and conduct campaign for Jamat-e-lsami, we always vote for Jamat-e-lsami. When PMLN came into power they snatched our land, our property and threw us on road, my family become target of PMLN because we never supported them in elections.
47.I got so confused & left for Pakistan in September 2015, It was a huge step, I spoke to my wife regarding and requested her to join me to Australia. But she immediately disowned me and left for her parents' house. She did not inform about our discussions to his or mine family. As I could not save all of family members but her and kids only. She decided to face the consequences with rest of family.
48.I left Pakistan in November 2015, before that I met, Abdul Sattar Edhi, he understood my feelings and suggested me to go back & try to convince your wife and kids with the passage of time, things would turn into your favor.
49.My family will not accept me as I am the only one who went against PMLN and participated in Foreign NGOs projects plus Polio scheme due to which my family also suffer life threats therefore, I will never be able to go back to Pakistan. My family even would not be able to protect me from Religious extremists who are against Polio scheme. And Taliban.
50.I fear that government of Pakistan, High court of Pakistan, Supreme court of Pakistan and other authorities will not protect me even if I moved to some other part of Pakistan to avoid harm because Polio workers and other welfare workers are not safe anywhere in Pakistan. Plus, I have showed complete opposition to political party in power PMLN.
51.The rigid Islamic and Panchayat system background of my family will, no doubt, protect their honor this will result in my death.
52.I fear that I will be harmed if I returned to Pakistan as being prominent participant in Polio scheme, participation in Swat operation and my research thesis and internship.
53.I am sure about it that my family and society will tell me that I have violated their family values. By preparing report on extremists given birth by Islamic mosques and maddaris. Ahl-e-Hadith are against existence of Maddars which Sunni Muslim cannot tolerate and my report on same matter shall result in my brutal murder.
54.I fear of my life and being treated unfairly as a first air provider at swat operation by [NGO 2] and suffer consequences that people within this group are suffering.
55.I request the Australian government to protect me from my prosecutor. I do not believe I will be safe anywhere in Pakistan.
56.I thank you to consider my situation and not to compel me to return to that country and allow me to live in Australia.
57.I thank Australian government to provide me with shelter and freedom.
Pre hearing submissions dated 6 January 2020
On 23 January 2015, the Review Applicant applied for a [student] visa, which was subsequently granted on 6 February 2015. Upon grant of the visa, the Review Applicant then travelled to Australia and arrived [in] February 2015.
[In] September 2015, the Review Applicant departed Australia and returned to Pakistan where he stayed for approximately two months before returning back to Australia [in] November 2015. Due to a number of events that occurred during the Review Applicant’s trip to Pakistan, the Review Applicant lodged an application for a Protection visa (subclass 866) on 6 May 2016 as he feared for his safety and wellbeing if he were to return to Pakistan at the conclusion of his studies in Australia.
The Review Applicant attended a departmental interview on 2 June 2017 via videoconference with the assistance of an interpreter who was connected by telephone. Unfortunately, the interview was tainted by misperception on the part of the Case Officer, the translator and the Review Applicant, which ultimately led to the Review Applicant’s credibility being doubted for various reasons. The Review Applicant received refusal of his Protection visa on 7 June 2017 and subsequently applied for review of that decision to the Administrative Appeals Tribunal on 11 June 2017.
We note that there are a number of errors in the summary of claims provided by the delegated officer in the Protection visa record. The following is a summary of the Review Applicant’s history and Protection visa claims; however, a more detailed summary will be provided within these submissions outlining the aspects of the Review Applicant’s claims that are incorrect. The Review Applicant has also provided a statutory declaration at Annexure 1 outlining the same.
The Review Applicant is from Punjab, Pakistan and comes from a family of Ahle- Hadith Muslims. The Review Applicant is married to [Ms B], with whom he has two children. Growing up, the Review Applicant’s grandfather was appointed as Lumberdar (village representative) of the area, however, due to his passing, the Review Applicant’s father is now the Lumberdar. Sadly, the Review Applicant’s mother passed away due to pregnancy complications when the Review Applicant was young. His mother’s passing inspired the Review Applicant to help those less fortunate than him. The Review Applicant’s father has always been involved in social causes to improve living standards in the village, however, this goes against the Pakistan Muslim League (N), a centre-right conservative party in Pakistan. As a result, the Review Applicant’s family is a target by this particular political group. Both the Review Applicant and his father have previously been beaten up and detained by affiliates of this group during election campaigns.
In 2003, the Review Applicant met Abdul Sattar Edhi, a Pakistani philanthropist, ascetic, and humanitarian who founded the Edhi Foundation. The Review Applicant idolised Mr Edhi and upon learning about his work, he volunteered at the Edhi Organisation as he liked the fact that they did not discriminate based on faith, caste, colour or race. It was in this same year that the Review Applicant’s involvement in the polio vaccination scheme began. Due to the Review Applicant’s active involvement in this scheme, a fatwa (a ruling on a point of Islamic law given by a recognised authority) was issued in his village by the molana who said that polio workers were committing an un-Islamic act by administering polio drops to children.
In the years that followed, the Review Applicant went on to complete tertiary qualifications, including [Qualification 1] and [Qualification 2]. Whilst undertaking his [Qualification 2] in 2009, the Review Applicant partook in an internship, which entailed preparing reports on the concept that mosques and madrassas give birth to extremists. Unfortunately, this resulted in members of Jamat ul Dawa following him around and also being coerced by the President of Islami Jamiat-e-Talaba University, [Mr D] to cease his research as well as hand over all his documents and his mobile.
Throughout the course of his studies, the Review Applicant took part in various social welfare activities. The Review Applicant frequently visited Christian churches as part of his social welfare work and came to know [Pastor C]. The Review Applicant allowed the church to use his family’s land so that they would have a place to perform their religious obligations. This act of goodwill resulted in Sunni extremist groups accusing the Review Applicant of being an enemy of Islam, which is a serious accusation given the groups engagement in politically motivated violence and promotion of communal violence. Despite this, the Review Applicant then became involved in [NGO 1].
After completing his studies, the Review Applicant went on to work for NGO’s conducting various social welfare activities. The Review Applicant received further threats by the Taliban and Jamat ul Dawa during his employment with the non- government organisation (NGO) [NGO 2] as a [Position 1]. Notably, the Review Applicant’s family were attacked in their home by people who threatened to kill them if the Review Applicant’s did not cease his work with NGOs. While working on a project for [NGO 2] outside a church, the Review Applicant was attacked by fundamentalists. However, the politics in the region made it difficult for the Review Applicant to seek any justice following the attack, as the police were unwilling to intervene.
The Review Applicant attempted to relocate to [Country 2]; however, this plan was short-lived as the Review Applicant’s documents were stolen during a theft in the office of the university representative assisting the Review Applicant. The Review Applicant then sought employment at the [Workplace 1] in [Department 1], which also looked after the polio scheme. As a result, the Review Applicant would frequently receive threats from Islamic Jamayat Talba as a result of his employment.
The Review Applicant arrived in Australia on a Student visa [in] February 2015, however, struggled being away from his family as he was constantly worried about their safety and well-being, which affected his ability to concentrate on his studies.
The Review Applicant was ultimately diagnosed with depression. The Review Applicant returned to Pakistan in September 2015 and shortly after arriving in his hometown, members of the Pakistan Muslim League N (PML-N) targeted his family while the Review Applicant was absent from the house.
[In] November 2015, while trying to vote at the local body elections the Review Applicant was attacked in his village. Fearing for his life following the attack, which left him seriously injured, the Review Applicant fled Pakistan in November 2015 and returned to Australia [in] November 2015. The Review Applicant persuaded his wife to travel to Australia with him, however, she declined.
On 6 May 2016, the Review Applicant applied for a Protection visa (subclass 866) on the basis that he feared persecution for at least one of five reasons specified in the Act including that the persecution involves both ‘serious harm’ to him and ‘systemic and discriminatory conduct’. The Review Applicant insists that he is unable to return to Pakistan, as he has a well-founded fear of persecution, which involves serious harm. The Review Applicant’s family history and his personal background (including employment history) make him a target as he has engaged in conduct that goes against extremist and political groups in Pakistan. These groups are willing to use violence to act out their politically or religiously motivated grievances.
The Review Applicant is unable to seek protection from authorities in his home country. Moreover, the Review Applicant’s family is ill-equipped to offer any kind of safety and protection to him. The Review Applicant’s discernible history of going against the PML-N as well as his work with foreign NGO’s and involvement in the polio scheme, as a whole, put him and his immediate family at risk of personal targeted attacks from extremist groups who are against his work.
Despite the compelling claims put forward by the Review Applicant, the Delegate of the Minister for Immigration and Border Protection (Department of Home Affairs) refused the Review Applicant’s Protection visa application on the basis of the Review Applicant not being a person to whom Australia has protection obligations. As a result, the Review Applicant was unable to meet s 36(2)(a) of the Act or Regulations Schedule 2 clause 866.221(2) and, therefore, under s 65(1)(b) of the Act, the Protection visa was refused on 7 June 2017.
SUBMISSIONS
CREDIBILITY
The Review Applicant attended a Departmental interview on 2 June 2017, which was conducted via videoconference with the assistance of an interpreter who was connected by telephone. Following this interview, the delegated officer noted in the refusal decision that,
There were many parts of the applicant’s narrative which raised credibility concerns. His recollection of events was convoluted and he did not establish a clear timeline, constantly changing the dates of events as inconsistencies were put to him. There were also several times where his written claims differed dramatically from his claims at interview – such as claiming to have put his land into the church’s name, or claiming that he was present when his family was attacked and then immediately going on to say that he wasn’t when his written claims were put to him.
…
Furthermore, the fact that the applicant willingly returned to Pakistan after arriving in Australia, as well as the delay in application contribute to the numerous credibility concerns I have in regards to the applicant’s claims.
The Department’s internal policy recognises that it is important to determine whether the applicant’s claims were inconsistent or whether the inconsistencies can be explained by errors in translation. Importantly, it states that,
Poor interpreting may deny a person an opportunity to put his case forward and may affect the perceptions of the credibility of the evidence or applicant.
This was demonstrated in MZXPV v Minister for Immigration and Citizenship, where the Federal Magistrate set aside the RRT’s decision because the poor quality of interpreting had denied the applicant proper opportunity to put their case forward. The applicant had raised concerns about the interpreter at an early stage but this had not been addressed. When the case turned to the credibility of the applicant, the Federal Magistrate determined that the answers provided by the interpreter could be read in a different way if the interpretation had been correct, thus creating an apparent inconsistency in the applicant’s answers.
A review of the transcript of interview illustrates that there was confusion during various stages of the interview on the part of the Review Applicant, Interviewer and Translator. As the Review Applicant was requested by the Translator to “keep the sentences short” so they could interpret, this was largely disruptive to the Review Applicant as it disrupted his thought process as he had to wait for the translation before he could continue speaking. Moreover, as the Review Applicant notes in his statutory declaration, the combination of nerves and recalling historical events, some of which are considered traumatic, affected the Review Applicant’s ability to adequately convey himself clearly during the interview process.
In Kopalapillai v Minister for Immigration and Multicultural Affairs,[1] the Full Federal Court made the point that credibility is one part of the totality of considerations that go to whether a decision maker can be satisfied that the applicant is a person in respect of whom Australia has protection obligations.
[1] FCR 547.
In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[2] Kirby J (dissenting in the outcome of the case) noted that:
[2] [2004] HCA 32.
There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
Consideration should be given to the effect of trauma upon a person’s ability to focus and concentrate and to recall distressing events. The Department’s internal policy suggests that as an example, a person is so traumatised that at interview they will say anything that they think will advance their case. Doing so does not automatically undermine their credibility.
A study conducted in 2002 by British psychologists examined the effect that post- traumatic stress disorder (PTSD) had on the consistency of recollections of persons seeking protection under the Convention.[3] Their findings were that:
[3] 19/04/2016 – 18/05/2016 > PAM3 – Refugee and Humanitarian > PAM – Refugee Law Guidelines > RLG – Ch 15 – Credibility.
·Discrepancies between an individual’s accounts were common
·For persons with high levels of PTSD, the number of discrepancies increased with length of time between interviews
·More discrepancies occurred in details peripheral to the account than in details that were central to the account.
While decision makers should be mindful of how trauma may impact an applicant’s engagement at interview and recollection of events, it does not appear that the delegated officer was mindful of the Review Applicant in this instance. The Review Applicant’s claims will be outlined in greater detail below.
In Shi Chu Lin v Minister for Immigration and Multicultural Affairs, the Federal Court dealt with an applicant whose account to the RRT differed to the account prepared by an agent and contained in his original application. The court held that the RRT had taken care to elicit the applicant’s account as clearly as possible and that there were no errors in its approach or findings. This case indicates that if posed with this problem, decision makers need to very carefully consider the basis for the differing accounts. Decision makers should also be aware that differences might not have been the result of the applicant’s actions.
The Review Applicant’s claims for protection stem from events, which in part, occurred over 15 years ago, involving his father and grandfather. Naturally, recalling the particulars of such events including dates would be difficult and involve hesitation and conscious effort. While the Review Applicant acknowledges that his nerves during the interview process may have contributed to some of the confusion, he also prepared his Protection visa application on his own accord without any professional assistance. This meant that the Review Applicant was not adequately prepared for the interview, as he was not aware he could take documents with him. During the interview, the Review Applicant was quizzed about his claims out of order, which resulted in the Review Applicant confusing his dates, and ultimately, his recollection of events.
In the transcript of interview, it also becomes apparent that the Interviewer also confused herself about what particular incidents she was referring to/ asking about. In the end, the interview proved to be both difficult and confusing, as the Review Applicant and the Interviewer would be speaking about separate matters, which resulted in the Review Applicant not answering the question he was asked. In light of this, it is respectfully submitted that the Review Applicant’s claims for protection may have been misunderstood by the Interviewer and therefore the delegated officer, who made the decision to refuse the Review Applicant’s Protection visa application.
In the Review Applicant’s decision record, the delegated officer states that the delay in application also contributed to the credibility concerns regarding the Review Applicant’s claims. The Department’s internal policy states that,
A person’s delay in applying for protection can support an adverse credibility finding as well as a finding that the person’s fear is not well- founded. However, it will usually not be conclusive in itself. For example, in Pannasara v Minister for Immigration and Multicultural Affairs, the Federal Court endorsed the RRT’s assessment of the delay in seeking protection. The RRT considered that:
·delay did not fatally undermine the applicant’s claims to have a strong fear of returning to his own country and
·the delay was one factor in considering whether his claim for protection from persecution was well-founded.
In Pannasara, the applicant had left his country of nationality 10 years before applying for protection in Australia (seven of those years spent in Australia). It was held that in assessing a delayed application for protection, it was necessary to take into account:
·events that had occurred in the applicant’s country in the intervening years and
·the applicant’s personal history during that period.
This approach has been reinforced in SZJYM v Minister for Immigration and Citizenship. In this case, the Federal Magistrates Court held that the RRT had erred in refusing an application solely by forming an adverse view of the applicant’s credibility because of the delay of six years in making the application.
It is respectfully submitted that the Review Applicant has valid grounds for the delay in applying for a Protection visa upon his return to Australia from Pakistan despite having genuine claims for protection. Notably, upon his return to Australia, the Review Applicant remained on his Student visa as he was still enrolled in his tertiary studies. As the semester was not due to start until February 2016, the Review Applicant had to submit an application to request withdrawal from his studies or else his Student visa was liable for cancellation due to non-compliance. While the Review Applicant waited for the upcoming semester to draw near, he prepared as much of the Protection visa application as he could despite having limited funds and no professional assistance.
The Review Applicant underestimated how long it would take him to prepare such an application on his own as he encountered several difficulties. Upon receiving confirmation of the withdrawal of his tertiary studies in or around March/ April 2016, the Review Applicant lodged his Protection visa shortly after on 5 May 2016. Moreover, as the Review Applicant has both immediate and extended family in Pakistan, he had hoped that the situation in his home country would improve but as time went by, this sadly proved to be otherwise. The Review Applicant had hoped that his immediate family would join him in Australia; however, they feared the consequence of this and decided to remain in Pakistan.
PROTECTION VISA CLAIMS
For the purposes of the Act and Migration Regulations, s5H states that a person is a refugee if the person:
(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.
It is the Review Applicant’s position that he is outside his country of nationality (Pakistan) owing to a well-founded fear and persecution and because of that fear, is unwilling or unable to obtain the protection of the country of nationality.
What constitutes a ‘well-founded fear of persecution’ is subject to the provisions in s5J of the Act. The meaning of well-founded fear of persecution includes:
·     Three elements that incorporate what is a well-founded fear of persecution (s5J(1)(a), (b) and (c));
·     Two elements that state when a person does not have a well-founded fear of persecution (s5J(2) and (3));
·     Additional requirements for ‘persecution’ other than a fear of it (s5J(4) and (5)); and
·     Conduct that is to be disregarded in considering a well-founded fear of persecution (s5J(6)).
The Review Applicant’s claims for protection are as follows:
POLIO VACCINATION SCHEME
In the decision record, the delegated officer notes that the Review Applicant’s
Written claims suggested that he was the first person in the village to execute the scheme [polio vaccination scheme], at interview he said that a government team came to the village to administer vaccinations and he assisted.
…
When the applicant was asked about the fatwa which was issued in his name, he said that a fatwa was issued every year from 2003 to 2012.
…
He then said that there were general fatwas issued every year against people who were involved in the polio scheme, and that a fatwa which named him specifically was issued in 2012. However, this fatwa was not related to his involvement in the polio vaccination scheme.
It must be noted that English is not the Review Applicant’s first language and therefore, he inadvertently makes mistakes when communicating both verbally and in writing. In this instance, the Review Applicant did not correctly portray what he had intended to say.
The Review Applicant was the first person in his village to become involved in the polio vaccination scheme, rather than to administer or execute the scheme itself. The Review Applicant recalls that he was 18 at the time he became involved in the scheme as he was commencing college. As Lumberdar of the village, the Review Applicant’s father offered his home to the government health workers, doctors and polio workers, as it was the responsibility of the village to provide shelter, food and rooms. As the eldest son of the Lumberdar, the Review Applicant felt he had an obligation to become involved in the scheme despite always having had a personal interest in these activities as his father was routinely involved in social causes in the village.
During the time of the Review Applicant’s involvement in the scheme, the weather was quite hot and this resulted in people not going to get their polio injections. As a result, the polio workers began to personally attend people’s houses to administer the necessary injection. The Review Applicant accompanied the workers and assisted by administering drops and any other duties he was directed to undertake.
At the same time, there was propaganda all over the mosque warning people not to get involved in the polio vaccination scheme. This material stated that the polio vaccination was dangerous and affected fertility. When the Review Applicant would attend the mosque, he was advised by other attendees not to get involved, as it was a sin. Despite this, the Review Applicant continued assisting the polio workers and this resulted in him being the first person targeted from his village. A fatwa was subsequently issued every year from 2003 to 2012 by the molana against people who were involved in the polio scheme and stated that those involved were committing an un-Islamic act by administering polio drops to children. A fatwa, is “a formal ruling or interpretation on a point of Islamic law given by a qualified legal scholar (known as a mufti). Fatwas are usually issued in response to questions from individuals or Islamic courts. Though considered authoritative, fatwas are generally not treated as binding judgments; a requester who finds a fatwa unconvincing is permitted to seek another opinion.[4] As outlined in the Review Applicant’s statutory declaration, a fatwa was issued in the Review Applicant’s village in 2003 until 2012. While this fatwa targeted polio workers generally, the Review Applicant was the cause of this fatwa as he was the only person from his village who was directly involved in the polio vaccination scheme alongside the government workers. The fatwa also resulted in the Review Applicant being vilified. On one instance, the Review Applicant was requested to attend the mosque by the Molana where he was cautioned to cease his involvement in polio vaccinations. The difficulties the Review Applicant experienced in his hometown caused him to relocate to Lahore.
[4] Encyclopaedia Britannica, Fatwa (27 September 2016) < [accessed 21 November 2019].
The Review Applicant was involved in the polio vaccination scheme in his village in the year 2003 only. However, as general fatwas for polio workers were issued every year between 2003 and 2012, the Review Applicant remained at risk over the years because his prior involvement in 2003 was well known, and later because of his tenure with [NGO 2]. The Review Applicant was again named in a fatwa issued in 2012.
NGO INVOLVEMENT
The Review Applicant volunteered with the Edhi Organisation from 2005 to 2008 on an irregular basis, and again in 2009 as stipulated in the decision record. The Review Applicant admired and looked up to Abdul Sattar Edhi and the work he did advocating for the needy and homeless people of Pakistan. The Review Applicant also venerated the fact that the Edhi Organisation was indiscriminate. His volunteer work with other non-Government organisations also entailed the Review Applicant having to attend Church a number of times. These factors led the Review Applicant to question his own faith (Islam).
In the decision record, the Case Officer states,
As he said in his written claims that he had questioned Islam, he was asked to what extent he had questioned his religion. He said that he had considered becoming a Christian but he was still a practicing Muslim.
We note religious conversions are rare and taboo in Pakistan, with those who abandon Islam often ostracised by their families and communities. Sadly, the treatment the Review Applicant experienced by fellow Muslims naturally led him to be sceptical about his own beliefs. While the Review Applicant has not turned his back on his faith, it is certainly not easy for him to simply convert to Christianity. In fact, the lives of religious minorities in Pakistan is marked by violence, discrimination and the abuse of fundamental human rights. Christians have continued to suffer targeted violence and other abuses, including land-grabbing in rural areas, abductions and forced conversion, and the vandalization of homes and churches.[5]
[5] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples – Pakistan: Christians, June 2018 < [accessed 22 November 2018.
In relation to Human Rights Organisations, the DFAT Country Information Report Pakistan found that:
Activists who are critical of the government or who travel to sensitive areas are also subject to additional scrutiny by the authorities. Activists, especially human rights activists, may also be subject to physical and electronic surveillance by authorities and/or subject to harassment and violence. While DFAT is unable to verify reports that security forces have harassed family members of human rights activists, including with violence, the US State Department 2017 Pakistan Human Rights Report states ‘security forces, political parties, militants and other groups subjected media outlets, journalists and their family to violence and harassment.
Human rights organisations also face risks of violence from militant groups when activities threaten the militants’ interests. The TTP has banned polio vaccinations and regularly carries out attacks on polio workers, as does ISIL, claiming they are a western plot to sterilise Muslims. Militant groups killed more than 100 people in attacks on polio workers between December 2012 and September 2016. Attacks continued in 2017 and 2018.
DFAT assesses that human rights activists and civil society actors who criticise the government and military, or who work on topics deemed sensitive, face a moderate to high risk of official discrimination including harassment and violence by security forces.
DFAT assesses human rights activists face a moderate to high risk of harassment and violence from militant groups.[6]
[6] DFAT Country Information Report Pakistan, Australian Government: Department of Foreign
The decision record further states that,
The applicant’s timeframe for working at [NGO 2] was disjointed. He originally said that he worked there for two years, starting in 2010. The applicant then went on to say that his family was attacked in 2011, and that he was not working for [NGO 2] at the time. When this was put to him, he changed the timeline several times, finally saying that he finished his degree in 2010 as well as working for [NGO 2] on a voluntary basis, got married in 2011 and lived in Lahore, and then worked for [NGO 2] full time in 2012. … While I accept that the applicant worked for [NGO 2], I do not accept that the applicant would have been targeted at any point due to this work.
As mentioned above, the Review Applicant’s credibility has been tainted due to the inconsistencies in his recollection of dates during interview against his original written claims. Unfortunately, as he was requested by the Interpreter to stop after every sentence, this resulted in confusion and muddle for the Review Applicant when responding to the questions asked. Moreover, the events in question span a lengthy timeframe and therefore, it is reasonable to expect that some dates may be jumbled. As the Review Applicant was unaware that he could have taken his statement to assist him with responding accurately to the Interviewer, especially in instances where the Interviewer referred to events out of order, it would have assisted the Review Applicant during times of confusion. In addition, stress and nerves would also have contributed to the Review Applicant’s confusion and inconsistencies. Nevertheless, the Review Applicant’s claims are genuine.
It is also noted that the Review Applicant’s family was indeed attacked in 2011 due to his involvement with [NGO 2], which according to his employment reference, was between February 2011 and November 2013 as a [Position 1]. The Review Applicant was personally attacked in 2012 by fundamentalists while working on a project for [NGO 2] outside a church. However, the politics in the region made it difficult for the Review Applicant to seek any justice following the attack, as the police were unwilling to intervene despite court orders in place. In fact, as it related to a religious issue, the police were reluctant to do anything.
Evidently, contrary to the Case Officer’s conclusion, the Review Applicant was indeed targeted as a result of his work with [NGO 2], particularly, as it was a non- Muslim organisation run predominantly by Christians. We also note that the Review Applicant’s claims of harm should not be dismissed simply because his dates were inconsistent.
CHURCH INVOLVEMENT
In the decision record, the Case Officer noted that,
The applicant claimed that he worked with Christian NGOs and visited the church frequently as a part of his work. He also spoke of entering a church in solidarity with Christians after the Sangla Hill massacre in 2005. He claimed that he travelled to Sangla Hill after the massacre in order to see for himself what had happened there. While I accept that the applicant volunteered with the Edhi Organisation, I do not accept that the applicant visited churches on a regular basis as a part of this work. The Edhi Organisation website claims that their aim is to “save lives, support orphans, provide shelters for the needy women, to feed the starving and be at the frontline of natural disasters and humanitarian crisis helping humans in need regardless of race or religion. As the organisation does not have any religious affiliations, there is nothing before me to suggest that part of the applicant’s role there required him to visit churches on a regular basis. Furthermore, I do not accept the applicant’s claims of going to Sangla Hill after the massacre as credible.
Unfortunately, the finding above by the Case Officer represents a misunderstanding on their part. As outlined in the Review Applicant’s statutory declaration, the Review Applicant worked with a number of Christian NGO’s involved in Christian community development. It was this involvement with other NGO’s that resulted in the Review Applicant having to visit churches – not during his involvement with the Edhi Foundation.
During the interview, the Review Applicant was quizzed by the Interviewer as to why he was going in to churches when he identified as Muslim. While this seems to be quite a narrow-minded question, there is nothing in the Islam religion, which stipulates that Muslims are banned from entering churches. In fact, Islam is a religion of love and peace. Like Edhi, the Review Applicant comes from a traditional Islamic background, however, has an open and progressive mind on a number of sensitive social issues just like his family.
The year 2005 was a significant year for the Review Applicant as not only was this the year he joined the Edhi Organisation, but it was also the same year in which the Sangla Hill Massacre occurred. The Review Applicant felt moved by this tragic event, which lasted several hours and sadly, local police were unable or unwilling to stop it. Although the incident triggered very sharp tensions between Muslims and Christians, the Review Applicant felt compelled to show his condolences and visited a Christian church for the first time to do so.
In the Review Applicant’s local area, Christians, Hindus and other religious minorities generally live peacefully alongside their Muslim neighbours. In fact, the Review Applicant’s village and his family’s land shares a boundary with a Christian village. This has also resulted in the Review Applicant having daily interactions with Christians both on a personal level and through his work with NGO’s.
Further confusion with the Review Applicant’s claims as outlined in the decision record is depicted below:
In his written claims, he wrote that he had put his land into the church’s name in his area as it was hard for them to open a church on their own. He indicated that this had caused him problems with the Muslim community. When asked about this at interview, he responded that he had never put his land into the church’s name. His land was close to the church and he had allowed them to use his land.
When asked how they used it, he said they built a building and then a proper church. As the applicant’s association with this church in his written claims differed to that which he spoke about at interview, I do not accept either of these accounts as true. I find that the applicant attempted to align himself with the church in order to strengthen his claims.
As the Review Applicant discusses in his statutory declaration, he had a desire to help the church and during discussions with [Pastor C], the Review Applicant volunteered his father’s land for the church to utilise. The Review Applicant’s father had a history of assisting the church and had previously allowed the church to use the family land to build a church on it. The Review Applicant acknowledges that this claim may not have been clearly conveyed due to the language he used. In his original claim, the Review Applicant stated that he had allotted his land into the church’s name. While the Review Applicant incorrectly used the term “allot”, the Review Applicant meant to convey that he had given the church free use of his father’s land – not that the land had been formally sold or given to the church. Moreover, in the Review Applicant’s culture, it is widely accepted that anything that belongs to the father, the son is able to claim as his own and utilise as they wish.
UNIVERSITY LIFE
In the decision record, it is stated by the Case Officer that,
The applicant claimed that members of Jamat Ul Dawa began to follow him from 2007, when he started university in Punjab. In 2009, he wrote a report against madrassas as part of an assignment. He received phone calls telling him to stop. After this, [Mr D] called him to his office. The applicant claimed that Jamiat-e- Talaba and Jamat ul Dawa, although two separate groups, were working together and had both threatened him. [Mr D] was upset about the report the applicant had written and threatened him, as well as taking his phone. He was asked if he had heard from these people after this incident, and he said that they called him and sent him further threats.
…
I do not find that this relates to madrassas and have no evidence before me which suggest he wrote this report or was targeted by Islamic groups due to publishing this report.
From 2008 to 2010, the Review Applicant completed a degree in [Discipline 1] and a [Qualification 2]. During the course of his [Qualification 2], the Review Applicant completed an internship, which involved preparing reports on the concept that mosques and madrassas give birth to extremists. As this report involved visiting shrines, mosques and madrassas of different sects, the Review Applicant was followed by members of Jamat ul Dawa.
The Review Applicant’s report was interrupted by the President of the Islami Jamiat-e-Talaba [University 2], [Mr D], who ordered the Review Applicant to his office where two other men were present in the room as a form of threat and intimidation, and ordered that the Review Applicant cease his research. The Review Applicant had to hand over all of his documents and his mobile phone. Fearing for his safety, the Review Applicant complied with the demands. In support of this claim, the Review Applicant supplied the front page of his [thesis], which was titled: [Title 1]. The completion of this thesis involved the Review Applicant having to travel to regional areas to conduct research about women’s awareness of family planning practices. In doing so, the Review Applicant discussed with participants forms of birth control, which incensed extremist groups. The Review Applicant’s involvement in this work was also further exacerbated by his association with the polio vaccination scheme, which extremists claimed made women infertile.
Unfortunately, the Review Applicant is unable to supply any further evidence of this work as the Review Applicant submitted the original internship report by hand and there was no other copy available. Despite this, the Review Applicant has indicated his willingness to discuss his internship and report in further detail, if necessary.
The National, which reports on the Middle East, noted in an article that,
Pakistan’s anti-polio campaign has long been a dangerous task. One hundred people – both police and health workers – have been killed in attacks targeting polio vaccination campaigns since 2012, including three in Korangi in eastern Karachi in 2014, who were not part of the programme.[7]
[7] ‘Dispelling fears and suspicion in Pakistan’s polio fight,’ The National, 21 March 2016, accessed 27 November 2019, < suspicion-in-pakistan-s-polio-fight-1.156077>; Hussain, S. F., Boyle, P., Patel, P., & Sullivan,
Consistent with the Review Applicant’s claims, it also notes that
some Taliban and ultra-conservative religious leaders spread rumours that the vaccine contained ingredients forbidden in Islam, such as pork derivatives, or that could cause infertility as part of a western plot to reduce the country’s 200 million population.[8]
[8] Ibid.
It is also noted that the Taliban imposed a ban on polio vaccination in 2012.[9]
[9] Hussain, S. F., Boyle, P., Patel, P., & Sullivan, R. (2016). Eradicating polio in Pakistan: an analysis of the challenges and solutions to this security and health issue. Globalization and health, 12(1), 63.
Accordingly, contrary to the case officer’s findings, we submit that the Review Applicant would have been targeted by Islamic groups for his involvement in the polio vaccination scheme and further, due to his thesis. This is especially so due to ‘a concerted propaganda campaign by militants operating from the Pakistan- Afghanistan border region, and supported by some religious clerics’ who ‘spun a narrative linking vaccination programmes to a Western plot to sterilise Muslims and painted vaccinators as spies for the US Central Intelligence Agency’s (CIA) highly unpopular drone programme; especially after revelations that the CIA funded a fake hepatitis B vaccination campaign in Abbottabad to trace Osama bin Laden’.[10]
[10] Ibid.
As per the decision record, during the Review Applicant’s interview,
The applicant was asked to describe the incident in which his family was attacked in December 2011. He began by saying that this attack was a result of his family supporting a certain political party, and that this was an old issue. He then went on to say that these people told his father “ask your child to stop”. Although the applicant had indicated that this attack was a result of his involvement in NGOs in his written claims, at interview he said that it was both his family’s political involvement and his work in NGOs that caused it, with the attackers mentioning both issues at the time of incident. When asked if his family reported the incident to police, he said that they had but no action had been taken.
The applicant was asked where he was at the time of the attack and he said that he had come home. He also said that he had been involved in the attack. When it was put to him that his written claims had said that only his father and female members had been involved, and he had never indicated that he was also attacked, he said that he was in the village at the time and he wasn’t attacked. I do not accept that the applicant was present and I find that he said that he was at interview in order to strengthen his claims.
Unfortunately, the case officer’s finding of this incident represents a misunderstanding of the facts as a result of the confusion that occurred during the Review Applicant’s interview. As the Review Applicant outlines in his statutory declaration in paragraphs 41 to 43, there were two attacks on the Review Applicant’s family in 2011 – one of these attacks the Review Applicant omitted from his initial statement, as it was not directly related to him but rather his family in general. As a result, the Review Applicant may have been talking about once incident when the case officer may have been referring to another and this would have caused confusion and inconsistency.
The first attack on the Review Applicant’s family occurred due to a joke the family had made in relation to the Pakistan Muslim League N (PML-N). This resulted in the in the family being attacked and receiving non-life threatening injuries.
The second attack on the Review Applicant’s family occurred in December 2011. During this attack, 10 fully armed people attacked the family’s deera in Sahiwal and left the family with life threatening injuries – the Review Applicant’s father and female members of their family were all seriously assaulted. During the attack, the assailants commanded the Review Applicant’s father to stop the Review Applicant from participating in projects of foreign NGO’s and to stop involving himself in military operations, otherwise the family would be murdered and their bodies decapitated. These events prompted the Review Applicant to cease his employment and return to be with his family.
While the Review Applicant was not present during the attacks on his family, there is no question that the attacks were originally aimed at him, and if he were present, he would have been seriously assaulted and/ or killed.
ATTACK ON THE APPLICANT
As outlined in the decision record,
The applicant claimed that in 2012, he was working on a report regarding the murder of a Christian girl for [NGO 2]. He was outside the church when this happened. There were several people involved and they beat him with a gun, leaving him bleeding heavily. These people mentioned the report that he was working on while they beat him. [Pastor C] then found him and took him to the hospital, saving his life. The applicant included medical reports to show the injuries sustained.
He then went on to explain that his father had great difficulty in lodging the incident with police as they did not want to investigate the matter. His cousin submitted an application in court in order to get the incident registered with police, and after this they were able to lodge the FIR [First Information Reports].
It is noted that following the interview, the Review Applicant submitted further material to confirm that he was the victim of a serious assault from fundamentalists. Unfortunately, the Review Applicant provided incorrect documents to the Department, which had no relevance to the said assault.
While the medical reports affirm that the Review Applicant was the victim of a serious assault, he is unable to provide any further supporting documents, as the police were not willing to lodge a formal report of the incident. Sadly, victims of crime in Pakistan face great difficulty in obtaining justice as police often refuse to register and investigate complaints known as FIRs.[11] In cases where complaints are registered, they are often tainted by bribes and biased investigations.
[11] ‘This Crooked System: Police Abuse and Reform in Pakistan’, Human Rights Watch (2016)
The Review Applicant limited ability to seek justice is also further supported by DFAT Country Information Report Pakistan, which details that,
Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.
Despite measures introduced to curb violence across the country under the NAP-strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due in part to the ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families.[12]
[12] Above n 7.
In relation to police in Pakistan, the Department of Foreign Affairs and Trade (DFAT) found that,
The effectiveness of provincial police forces in Pakistan and the challenges faced by these forces vary. However, overall, police capacity in Pakistan is limited, due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Sectarian violence and domestic terrorism diverts resources from community ‘policing’ to a more incident response and security/guarding role. Popular perception of high levels of police corruption is widespread. Overall, public perception of police is low.[13]
[13] Ibid.
Noting the police’s inability to record the assault against the Review Applicant, it is reasonable to expect that the Review Applicant would have limited evidence/material in relation to this incident.
STUDENT VISA FOR [COUNTRY 2]
In relation to this matter, it is noted in the decision record that:
The applicant claimed that after being attacked he realised he had to leave Pakistan and contacted an agent to assist him with obtaining a Student visa for [Country 2]. He submitted all required documents to the agent in June 2013. He then claimed that all these documents, including his passport, were stolen from the agent’s office.
It was put to the applicant that the passport which he provided with his application was valid [from] 2014, and that the delay in obtaining a new passport was not indicative of someone who was fearful for his life and needed to leave the country. He said that it had taken a long time for him to gather all his education documents again, but the passport had only taken [number] days. When it was put to the applicant that he could have left as a tourist, he said that he did not know that that was an option.
It is respectfully submitted that it is unreasonable for the case officer to compare administrative processes of a developing country against a developed one. As the Review Applicant outlines in his statutory declaration at paragraph 51, the process for obtaining personal documents including qualifications, is an arduous one. Accordingly, it is irrational to conclude that the delay in obtaining a new passport was not indicative of someone who was fearful for his life and needed to leave the country. Moreover, one does not simply apply for a visa with just their passport – supporting documents dependent on the intended visa are also required. Of course the Review Applicant was frustrated by the time it would take to obtain copies of all the documents he lost as he was eager to leave Pakistan as he feared for his personal safety. While awaiting to obtain his documents, the Review Applicant relocated to Islamabad where he sought employment with a government department under the belief he would be safer in a different district.
It is no surprise that a visa applicant from a high-risk country intending to travel to a first world country is likely to be highly scrutinised and would have limited prospects of securing a visa for travel. Realistically, while the Review Applicant may have been able to apply for various visas such as a Tourist visa, this does not necessarily mean that they would have been approved. At the time, and in the circumstances, without any professional assistance, the Review Applicant believed that he had better prospects of securing a Student visa. The delay in applying for a Student visa meant that the Review Applicant was able to provide all of the necessary documents for a proper consideration of his visa application.
[Department 1]
Following the Review Applicant’s relocation to Islamabad, he sought employment with [Department 1] at [Workplace 1]
In the decision record, the case officer noted that the Review Applicant’s
Written claims and work history indicated that although the [workplace] also provided polio vaccinations, his work related to [Medical Condition 1] and [Medical Condition 2]. At interview, he said that his job involved [Medical Condition 1] and polio vaccinations.
…
The applicant was asked about the threats that he indicated that he received during his work at the [employer], and whether these threats were directed at him personally or at the polio program in general. He went on to say that they were directed at the polio program, and that there had been murders in the [workplace] … He also submitted a card with an ID number and the applicant’s name which says End Polio, however I have not given it any weight as it appears to be edited on Word. I find that the applicant tried to link himself with the polio vaccination program to strengthen his claims for protection.
As the Review Applicant notes in his statutory declaration at paragraph 54, the department he worked for was overworked and understaffed, which resulted in the Review Applicant having to take on further duties. The Review Applicant’s additional duties involved assisting with polio vaccinations. DFAT has reported that,
Pakistan is one of three countries in the world (with Afghanistan and Nigeria) where endemic transmission of wild poliovirus continues to occur, and the poor security environment across the country affects health workers: targeted killings of polio health workers is common (international media estimates at least 70 polio workers were killed between 2011 and 2015 alone) and continued in 2018.[14]
[14] Ibid.
Moreover, DFAT has also found that
Non-government health workers face a moderate risk of violence from militant groups, particularly those involved in polio vaccination programs. While attacks on health workers, NGOs, human rights activists and civil society actors can occur in any part of Pakistan, attacks are more common in areas where the security is worse, including Khyber Pakhtunkhwa, the former FATA and Balochistan. Harassment and monitoring by security forces can occur anywhere across the country.
Due to the appearance of the Review Applicant’s ID card, the case officer failed to give any weight to the Review Applicant’s claim noting that they believed that the ID appeared to be an edited Word Document. The appearance of the document is consistent with identity documents provided in Pakistan. In fact, the Review Applicant is willing to provide hard copies of his drivers licence and his ID card to demonstrate the consistency of identity documents issued in Pakistan. In spite of this, we respectfully submit that there was a high likelihood that the Review Applicant would receive threats in the form of harassment and violence from militant groups due to his association with NGO’s.
COMING TO AUSTRALIA
The Review Applicant applied for a Student visa for Australia on 25 January 2015. The delay in applying for the application (as mentioned above) was attributed to the lengthy process involved in re-obtaining all of the necessary documents. Moreover, as the Review Applicant was required to demonstrate that he had access to sufficient funds, this took some time to acquire.
It is noted that the Review Applicant arrived in Australia [in] February 2015. As per the decision record,
The applicant returned to Pakistan [in] September 2015. He had been suffering from mental health issues in Australia… He claimed that the doctor advised him to return to Pakistan. While I accept that the applicant has suffered from mental health issues while in Australia, there is nothing before me to link the events which the applicant spoke of at interview with his mental health issues.
The Review Applicant travelled to Australia by himself. With limited access to a support network in Australia, he found it very difficult to focus on his studies given the fact that his family had remained in Pakistan and he feared for their safety. While the Review Applicant was able to supply medical records to support an application for leave and subsequent withdrawal from his studies, it can be inferred that the Review Applicant may also suffer from stress related to trauma from the events that both he and his family experienced in Pakistan. According to This Way Up,
It is common for people to continue to have distressing thoughts, images and feelings for some days, or even weeks, following the trauma. These reactions are common, and are a sign that the body is recovering from a severe stress. The most commonly reported reactions to trauma are [amongst others]:
·Anxiety or fear of danger to self or loved ones, being alone, being in other frightening situations, having a similar event happen again.
·Flashbacks where images of the traumatic event come into your mind suddenly for no apparent reason, or where you mentally re-experience the event.
·Physical symptoms such as tense muscles, trembling or shaking, nausea, headaches, sweating and tiredness.
·Sadness, feelings of loss, or aloneness
·Sleep problems, including getting to sleep, waking in the middle of the night, dreams or nightmares about the traumatic event.
·Problems with thinking, concentration, or remembering things (especially aspects of the traumatic event).[15]
[15] This Way Up, I Feel Traumatised < only seeking medical assistance from a General Practitioner, the Review Applicant made the decision to return to Pakistan [in] September 2015. It must be noted that the Review Applicant’s decision to return to Pakistan was a difficult one – on the one hand, he was living and studying Australia without being threatened, intimidated or assaulted. On the other hand, he was experiencing separation anxiety being away from his family and not knowing if they would experience any further attacks. These concerns adversely affected the Review Applicant’s ability to fully apply himself to his studies. Although realising that he could be further targeted, the Review Applicant returned to Pakistan to be with his family and deal with the mental health issues he was experiencing.

In the absence of a psychological report and having regard to the medical records provided to the University, it is reasonable to expect that the Review Applicant would suffer from some form of Post Traumatic Stress Disorder. It is very difficult for the Review Applicant to be diagnosed in this regard in Pakistan due to the politics of the country. Nevertheless, there is an undeniable link between the Review Applicant’s claims and his mental health issues.
FURTHER ATTACKS
While in Pakistan, the Review Applicant submits that he was involved in a further attack. As the Review Applicant explains in his statutory declaration at paragraph 58, this attack occurred [in] November 2015 during the elections held in the Review Applicants area, Sahiwal.
In relation to this claim, the case officer stated:
… When asked why he remained in Pakistan for two months after this attack, [until] November 2015, he said that his main aim was to recover mentally, but then he was attacked again and he had to come back. When asked which attack he was referring to, he said this was the attack on his whole family in September. I find the timing of this attack to be suspicious, and, combined with the numerous credibility concerns which were raised at interview, I do not accept that it took place.
It must be noted that Pakistani politics encompasses a broad range of political, ethnic and religious groups.[16] During this particular election, the dominant political party Pakistan Muslim League N (PML-N), lost the election. A group of people politically affiliated with the PML-N began to argue with the Review Applicant’s family about the polling system being corrupt. Although the accusations made towards the Review Applicant and his family were nonsense, they continued to provoke the Review Applicant. Fearing that the situation would escalate further, the Review Applicant’s father requested the Review Applicant to leave and go home. As the Review Applicant tried to leave, he was followed by a group of about 30 or 40 people armed with various weapons. Eventually, the attack became physical, which also resulted in a number of bystanders getting caught up in the attack. The incident resulted in both the Review Applicant and his family receiving non-life threatening injuries.
[16] Above n 7.
This attack prompted the Review Applicant to return to Australia as he feared for his life. As the Review Applicant’s family chose not to join him, the Review Applicant returned alone.
DELAY IN APPLICATION
The delay in the Review Applicant’s application for asylum is attributed to the fact that the Review Applicant was hopeful the situation in Pakistan would improve and he could return to his family. But unfortunately, this was not the case for him. The case officer criticised the Review Applicant in the decision record and remarked:
The applicant returned to Australia in November 2015, but did not apply for protection until May 2016. When asked why he did not apply for protection immediately, he said that he was waiting for conditions to improve. He also wanted to collect all the necessary documents, such as police and medical reports, before submitting his application. I note that in Subramaniam v MIMA (1998), the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While the applicant’s delay in seeking protection raises some doubt as to the extent of the applicant’s fears, I am mindful that case law also indicates that a delay in applying for a Protection visa is not an issue sufficient to undermine an applicant’s case (Pannasara v MIMA (2000)). I also note that the applicant submitted additional documents after interview, which suggests that the delay in applying for protection was not dependent on waiting for documents.
The Review Applicant explains in his statutory declaration at paragraph 60, the delay in applying for a Protection visa was also attributed to the fact that he was the holder of a Student visa and therefore, had obligations under this visa. Noting that the Review Applicant remained enrolled in his studies, he needed to request a withdrawal from his studies or risk cancellation of his Student visa for failing to comply with its conditions. Protection visa applications are quite onerous and require particular attention to ensure it is properly prepared. With limited funds and no professional assistance, the Review Applicant did what he could to prepare his own application. Once the University released the Review Applicant from his studies in or around March /April 2016, the Review Applicant submitted his application for protection shortly after on 5 May 2016.
SUMMARY
As has been discussed above, the Applicant prepared his Protection visa application on his own accord. A review of the application reveals that English is not the Applicant’s first language and that he did indeed struggle with providing articulate responses to the questions asked. While some of the responses made sense to the Applicant, unfortunately, to a native English speaker, they could be interpreted differently. For instance, the Review Applicant’s claim in relation to putting family land in the Church’s name was not accurately explained in writing by the Review Applicant due to his use of the word “allotment”. Additionally, the Review Applicant mistakenly provided incorrect supporting documents regarding an event, which had no relevance to the Review Applicant. This was merely an accident and not an intentional error.
The Review Applicant’s claims for protection have arisen as a result of his employment and volunteer work with NGO’s, association with Christian’s, involvement with the Polio vaccination scheme, and degree in [Discipline 1]. While Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs, unfortunately, state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will. The Review Applicant has experienced the difficulties of state protection first hand when he attempted to report a serious assault he was a victim of but was met with reluctance from the police who were not willing to assist. This is also despite the fact that they went to a court to have a formal order made. Alarmingly, ‘in some provinces, police claim stations operate 24 hours a day, often with only eight to 16 staff per station’. Moreover, ‘there are no centralised or national law enforcement databases or criminal records, which leads to unreliable accuracy of enquiries and inability to track or locate offenders’.
Despite relocating to other parts of the country, the Review Applicant still received threats from fundamentalists. It has been incredibly difficult for the Review Applicant to be separated from his wife, children and extended family. The attacks experienced by the Review Applicant were random and unexpected – unfortunately, there was no way the Review Applicant could see that an assault or threat was impending as he went about his day-to-day.
The Review Applicant’s temporary return to Pakistan should not overshadow the genuineness of his claims. Had the Review Applicant been in a better and healthier state of mind, he would have remained in Australia. However, he desperately required the support of his family during a time of weakness.
REFUGEE CRITERIA ASSESSMENT – S 36(2)(a) of the Act
The Refugee Law Guidelines are designed to give advice and assistance to department decision makers on the law relevant to the assessment of whether Australia has protection obligations to a person because the person is a refugee (s 36(2)(a) of the Act). The Guidelines have been structured to reflect the essential elements relevant to determining whether a person is a refugee according to the Act and should be used as a resource document together with relevant training materials and legislation.
In the decision recorded, it was stated by the case officer that:
DFAT’s latest report on Pakistan states “human rights organisations are at risk where their activities threaten militant groups or other vested interests”. However, I note that the applicant stopped working for [NGO 2] in 2013. I have found the applicant’s claims of being targeted due to his work as not credible. Considering the fact that the applicant has not worked for an NGO since 2013, and I have not found that at any point during his career he was targeted due to his work, I am not satisfied that there is a real chance that, if the applicant was returned to Pakistan, he will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s 5H and the criterion in s 36(2)(a) of the Act is not satisfied for this reason.
The case officers findings that only polio workers were being targeted by extremists is incorrect. DFAT’s latest report on Pakistan states,
Non-government health workers face a moderate risk of violence from militant groups, particularly those involved in polio vaccination programs. While attacks on health workers, NGOs, human rights activists and civil society actors can occur in any part of Pakistan, attacks are more common in areas where the security is worse.
Accordingly, despite the case officer expressing their disbelief in relation to the Review Applicant’s claims, we respectfully submit that the Review Applicant’s claims of being targeted due to his work are credible and genuine.
Based on the above, it is respectfully submitted that the Review Applicant faces a real chance that if he were to return to Pakistan, he will be persecuted for one or more of the reasons mention in s 5J(1)(a) of the Act. In particular, due to his religion and political opinion.
With regards to religion, as described in PAM3, “persecution for reasons of religion may occur because the person holds or is imputed to hold a religious belief contrary to that of the persecutors” and “the person is deemed to be practising the religion contrary to the manner the persecutors consider it should be practiced”.
The Review Applicant was threatened and targeted as a result of his work with NGO’s and association with the polio vaccination scheme. As extremists had spread propaganda declaring the polio vaccination scheme as going against their religion, the mere fact that the Review Applicant was associated with the scheme resulted in him experiencing personal harm.
In this regard, the Review Applicant is therefore a refugee as defined in s 5H and the criterion in s 36(2)(a) of the Act is also satisfied for this reason.
CONCLUSION
A person outside the country of nationality for reasons of persecution must establish that they are unwilling or unable to obtain the protection of the country because of the well-founded fear of persecution. This includes consular and other ‘external protection’ offered by that country as well as the internal protection. As has been outlined above, the Review Applicant is unable to avail himself of state protection in Pakistan due to resource shortages, corruption, socio-economic factors at the individual level, and political will. Moreover, successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. Similarly, police capacity in Pakistan is limited, due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Additionally, popular perception of high levels of police corruption is widespread and public perception of police is low.
Statutory Declaration of Applicant dated 1 April 2019
1.     I am providing this Statutory Declaration for supply to the Administrative Appeals Tribunal.
2.     By way of brief background, I was granted a Student visa on 6 February 2015. I travelled to Australia on 25 February 2015.
3.     I went home to Pakistan [in] September 2015 and returned to Australia [in] November 2015.
4.     As a result of events that occurred during my visit to Pakistan, upon returning to Australia, I lodged an application for a Subclass 866 Protection visa on 5 May 2016 because I was fearful for my safety and wellbeing if I were to return to Pakistan again.
5.     I prepared my application on my own and without any professional assistance.
6.     I attended a departmental interview on 2 June 2017. The interview was conducted via videoconference, with the assistance of an interpreter who was connected by telephone.
7.     My application was refused on 7 June 2017. l applied for a review of that decision to the Administrative Appeals Tribunal on 11 June 2017.
8.     I have previously provided a statement to the Department about my background and personal circumstances. I seek to provide this Statutory Declaration to clarify some of the matters in my personal statement, as well as to respond to issues raised by the Department in the decision record, as a result of the interview process. The Case Officer had concerns about my credibility, indicating that my recollection of events was convoluted and that I did not establish a clear timeline. For ease of reference, I have addressed those concerns in the order that they appear in the decision record.
9.     I would like it to be noted that interview process was facilitated with the assistance of a translator, who was present during the interview by telephone. As I was trying to convey my claims, the interpreter kept asking me to stop in order that they could translate what I was saying. This meant that I had to stop after every sentence and wait for a translation. This was hugely disrupting to my thought process, and combined with my nerves, I feel that I may not have adequately conveyed myself clearly during the interview process.
10. In my statement I provided a lot of background information so that the Department could understand my history, which has resulted in my fears of harm. These events cover a long period of time (both my lifetime and that of my father and grandfather). I was feeling very nervous during the interview process and accept that this may have resulted in some confusion.
11. As outlined above, I prepared my application on my own and without any professional assistance. I did not know that I could take documents with me to the interview. During the interview, the Case Officer asked me about a number of matters spanning a long period of time. At times, I got my dates muddled, which was criticized by the Case Officer. She asked me about events out of sequence, and at times appeared to be confused herself about what particular incidents she was referring to / asking about. As a result, at times the interview was very confusing for me because we were talking about separate matters, for example she would ask me about one thing but because I thought she was referring to another incident, I was not answering the question which caused confusion for us both.
12. I have obtained a transcript of the proceedings, which is available for the Tribunal to consider, which clearly shows confusion on the part of the Case Officer, myself and even the translator at times during the interview process, demonstrating that the Case Officer may not have adequately understood my claims.
Summary of Claims
13. In the decision record, the case officer has provided a summary of my claims. However, for reasons outlined further below, the summary is not correct in all parts. Please refer below for a correct summary:
13.1.I am from the Punjab province in Pakistan. I come from a family of Ahle-Hadith Muslims.
13.2.My family has always been involved in community work in the area.
13.3.My grandfather was appointed as Lumberdar of the area. He has since passed away and my father is now the Lumberdar. My father has always been involved in social causes to improve living standards for the village. This was opposed by the Pakistan Muslim League Noon (PMLN) which has made my family a target.
13.4.As a result of this, my father and I were beaten up and detained during election campaigns.
13.5.My mother passed away when I was young due to complications during pregnancy. This inspired me to want to help poor people.
13.6.In 2003, I saw Abdul Sattar Edhi in the streets advocating for needy and homeless people. Abdul Sattar Edhi was a Pakistani philanthropist, ascetic, and humanitarian who founded the Edhi Foundation, which runs the world's largest volunteer ambulance network, along with homeless shelters, animal shelter, rehab centres, and orphanages across Pakistan. I knew about his work and was inspired by him. I decided that I wanted to be like him.
13.7.I volunteered at the Edhi Organisation and liked the fact that they did not discriminate based on faith, caste, colour or race. This led me to question Islam as most of the staff working at the organisation were Christians.
13.8.In 2003, l was involved in the polio vaccination scheme. I was the first person in my village to get involved in the scheme. As a result of my involvement, a fatwa was issued in my village by the molana who said that polio workers were committing an un-lslamic act by giving polio drops to children.
13.9.I eventually grew tired of the politics in the village and moved to Lahore.
13.10.In 2005, after the Sangla Hill massacre, I entered a church to show my condolences. I visited the church frequently as part of my social welfare work and came to know [Pastor C].
13.11.I allowed the church to use our family's land so they would have a place to perform their religious obligations. Sunni extremist groups began to accuse me of being an enemy of Islam.
13.12.I then became involved with [NGO 1].
13.13.ln 2009, whilst completing my [degree], I did an internship which involved preparing reports on the concept that mosques and madrassas give birth to extremists. Part of this involved visiting shrines, mosques and madrassas of different sects. Members of Jamat ul Dawa began to follow him around.
13.14.The President of lslami Jamiat-e-Talaba [University 2], [Mr D] called me to his office. He was there with two men from the Afghan region. They ordered me to stop his research, as well as hand over all of my documents and my mobile. I was scared for my life and agreed to do as I was told.
13.15.In February 2011, I joined the non-government organisation (NGO) [NGO 2] as a [Position 1] (I was offered the job in 2010). As a part of this job, I was involved in assisting the general population during the Swat military operations. I was threatened by the Taliban and Jamat ul Dawa as a result of this work.
13.16.In December 2011, ten fully armed people attacked my family and threatened to kill them if I did not stop my work with NGOs. When my father told me about this incident, I left my job and returned to my family.
13.17.On 12 August 2012, when I was working on a project for [NGO 2], I was attacked by fundamentalists. I recognised some of his attackers. They beat me and left me for dead. l was outside of the church when this happened. [Pastor C] found me and took me to hospital. My father went to the police station, but they refused to register the attack as it related to a religious matter. My cousin sought orders from the Magistrate for medical examination and case registration. The doctor did not want to perform an examination before this. Police refused to register a First Incident Report (FIR) even after orders by the magistrate. At this point 1 decided l had to leave Pakistan.
13.18.I contacted a [Country 2] university representative in Lahore and gave him the documents required to apply for a Student visa. twas then informed that there was an incident of theft in the office of the university representative, and my documents were lost.
13.19.Whilst I waited for my personal documents to be reissued, I obtained employment at [Workplace 1] in [Department 1]. The polio scheme also operated under this department. I was constantly receiving threats from Islamic Jamayat Talba due to my work.
13.20.I applied for a Student visa for Australia in January 2015 and arrived [in] February 2015. I found it difficult being away from my family and I was constantly worried about them. My studies in Australia were affected due to depression.
13.21.I returned to Pakistan in September 2015. Shortly after returning, my family were targeted by members of the Pakistan Muslim League N (PML-N). I was not home at the time.
13.22.[In] November 2015, I was attacked in my village whilst trying to vote at the local body elections.
13.23.Fearing for my life after the attack, I left Pakistan in November 2015. I tried to get my wife to join me in Australia but she refused.
13.24.I cannot return to Pakistan I fear that I will be harmed if I return to Pakistan. My family history, as well as my personal background makes me a target as I have engaged in work that goes against extremist and political groups.
13.25.The authorities cannot protect me, nor can my family. My history of going against the PML- N as well as my work with foreign NGOs and the polio scheme puts me and my whole family at risk of attack from religious extremists who are against my work.
Polio Vaccination Scheme
14.In my initial statement of claims, l wrote that I was the first person in town to execute the polio vaccination scheme in my village. Upon reflection, I now understand that what l have written is not what I meant. English is not my first language and I sometimes confuse the meaning of words. I had meant that I was the first person in the village to get involved in the polio vaccination scheme, rather than to administer or execute the scheme.
15.By way of explanation, my grandfather was at one stage appointed as Lumberdar of our village. Upon his death, the title was transferred to my father's brother (my uncle). When my uncle passed away, my father became the Lumberdar, a position which he holds to this day.
16.I was [age] years old when I got involved in the polio vaccination scheme. At that time, I had just finished my matrix and was going to college. It was the responsibility of the village to provide shelter, food and rooms for the government health workers, doctors and polio workers who came to execute the scheme. As my father was Lumberdar, he offered our home for this purpose. As my father's eldest son, I felt I had a responsibility to get involved and had always had a personal interest in these activities because my father was well known in the village for his participation in social causes.
17.Every newborn would get an injection and a polio shot. As the weather was hot, people were not coming to get their injections and so the workers eventually went out to people's houses to get the job done. I assisted the workers by going with them and administering drops, as well as any other jobs as directed by the polio workers.
18.I recall that there were posters all over the mosque warning people not to get involved in the polio vaccination scheme. The propaganda stated that polio vaccination was dangerous to health and affected fertility. When I would go to the mosque, people would tell me not to get involved because it was a sin.
19.As a result of my personal involvement in helping the government polio team, I was the first person from my village to be targeted. A fatwa was issued every year from 2003 to 2012 by the molana against people who were involved in the polio scheme. It said that we were committing an un-lslamic act by giving polio drops to children.
20.In 2003, a fatwa was issued in my village. Whilst the fatwa targeted polio workers generally, l am the reason for that fatwa otherwise the fatwa would never have been issued to our village, as I was the only person from our village who was directly involved in the polio vaccination scheme, alongside the government workers. People started to target me directly because of this fatwa. The Molana of mosque called me to the mosque to talk to me about the fatwa and cautioned me to stop my involvement in polio vaccinations.
NGO Involvement
21.For this reason I grew tired of the politics in my village and eventually moved to Lahore.
22.I volunteered with the Edhi Organisation from 2005 to 2008, and again in 2009. During my time with this organisation, I was involved in providing people with food and welfare. It was not regular work. In 2011, I started working for [NGO 2] as a [Position 1].
23.During the interview, the Case Officer kept asking why I didn't get involved with the Edhi organisation earlier. I am unsure why this was relevant, however I was unable to volunteer prior to 2005 because I was busy with my studies from 2003.
24.During the interview process, I was asked to describe my involvement with these organisations, which I did. In the decision record, the case officer criticized me, stating that my recollection of the timeframe of events was disjointed. For example, during the interview I said I started with [NGO 2] in 2010 whereas I actually started with them in 2011 as shown by my employment document.
25.During the interview I felt very nervous and tried to relay events as accurately as possible. As outlined above, the interview was conducted by video conference with the assistance of an interpreter. The interpreter kept telling me to stop when I was speaking which made it hard for me speak or convey my thoughts clearly. Given that the matters that I was describing where over a long time span, and we discussed many of the events, I think it is reasonable that I may have muddled up some dates. Had I known I could have taken my statement with me, I would have been able to refer to this to ensure which would have helped me when I got confused.
26.My family was attacked in 2011 because of my involvement with [NGO 2] (non muslim organization). This was followed in 2012 by a major attack on me.
27.The case officer has completely disregarding my claims of harm as a result of my work for [NGO 2] simply because I muddled up my dates. This seems to be a completely illogical conclusion.
Church Involvement
28.During the interview process I described my work Christian NGO's. The Case Officer indicated in the decision record that whilst she accepts that I volunteered with the Edhi Organisation, she did not accept that I visited churches on a regular basis as a part of this work.
29.It seems that the case officer has not understood me clearly as I never stated that I visited churches as part of my work with the Edhi Organisation. Over the years t worked with a number of Christian NGO's involved in Christian community development. As part of my involvement with other NGO's I certainly visited churches, which was how I became acquainted with [Pastor C], but not during my work for the Edhi Foundation. When I worked with the Edhi Foundation I had a different job task. The case officer has confused my work with difference organisations.
30.During the interview the Case Officer kept asking me why I was going to Christian churches when I am a Muslim. In our religion, there are no issues with this. My village and my family's land shares a boundary with a Christian village. As a result, I had lots of interaction with Christians on a personal level and through my work with NGO's.
31.Similarly in my written claims, I discussed my involvement with [Pastor C] and the Christian community. The year 2005 was very important for me. Not only was this the year that I joined the Edhi Organisation, but it was also the year that an incident occurred in Sangla Hill (Disstt Faisla Abad that time) in which Christian kids, girls and nuns were all targeted and killed in a mob rampage. After that incident I visited the church to show my condolences. I visited the Church on many other occasions after that through my involvement with Christian NGO's which is how I came to know [Pastor C]. I discovered he ran the [NGO 1] and he offered for me to volunteer and spend some time working with him. I felt that the Pastor was a noble man and I was impressed by his work.
32.I wanted to help the church and so during discussions with [Pastor C] I volunteered for the Church to use my family's land to perform religious obligations. My father had a history of helping the church. My father had previously allowed the church to use our land and they built a church on the land. I don't think that I conveyed this clearly in my initial claims because I did not clearly draw a distinction between the past and present events. I described in my claim that I "a lotted" my land into the church name. What 1 had meant by a-lot is that I had allowed the church free use of my land. I never meant that I formally sold or gave them the land.
33.I should clarify that references to "my land" actually refers to my father's land. My father is the legal owner of that land. In our culture, anything belongs to my father, I can use as I wish. This is the cultural norm that we use our father's property and we don't have to pay them back. That's why in my written claims I said that land is my land because my father didn't have any issue with this because my father think everything he has, being his oldest son I can use it. I tried to explain this to the case officer during the interview but she kept stating that this was inconsistent with my written claims and would not listen to my explanations.
University Life
34.I completed my tertiary education from 2007 - 2010 at [University 2]. I completed a Degree in [Discipline 1] and a [Qualification 2], which was a new program at that time. During the first year of my [Qualification 2] I completed an internship which involved preparing reports on the concept that mosques and madrassas give birth to extremists. Part of this involved visiting shrines, mosques and madrassas of different sects. Members of Jamat ul Dawa began to follow him around.
35.Eventually, the President of lslami Jamiat-e-Talaba [University 2], [Mr D] called me to his office. He was there with two men from the Afghan region. They ordered me to stop his research, as well as hand over all of my documents and my mobile. At the time I was afraid. I thought maybe they might shoot me. I apologised and agreed to do as I was told.
36.After discussing these matters at interview, I was asked if I had any evidence of these matters that I would like to send through. It took me some time to get further documents from Pakistan.
37.As part of my application, I included the front page of my [thesis] which was entitled "[Title 1]" dated Session 2008-2010. I included this document as it was the only evidence I had at that time from my university days. The Case Officer stated that this report does not relate to the madrassas, nor was there any evidence to suggest I had been targeted. Unfortunately I do not have a copy of my report from this period because I submitted the internship report by hand. Most of the university's systems in those days were not online so I did not keep a copy of the report, and it is difficult to retrieve copies of these reports / assignments.
38.I am happy to discuss my internship and report in further detail as necessary.
39.It should be noted that my whole [Qualification 2] made me a target. As outlined above, my [Qualification 2] was in [Discipline 2], which was part of [Discipline 1]. As part of my thesis, which I have provided for the Tribunal's consideration, I went out to the people to conduct research about their awareness of family planning practices. In regional areas, women were having 6 or 7 children. I would go to rural area to collect the data for the thesis, what people think, know or not know about birth control. I discussed forms of birth control like condoms and the pill. From there I collected data which was used in my thesis. The extremists groups didn't like this. I was already a target for my work in the polio vaccination scheme, which extremists claimed made women infertile - so my work for my thesis enraged them further.
40.I have a copy of my thesis for the Tribunal's consideration.
Attack on Family
41.During the interview, I was asked to elaborate about the attacks on my family in December 2011, which I did. It is important to note that there were two attacks on my family in 2011, one of which I never wrote about in my initial statement because it was not directly related to me but rather my family generally, which may have caused some confusion during the interview. I also talked about the attacks on me personally which occurred in 2012. I think there was some confusion about these incidents during the interview as I was talking about one incident when the case officer may have been talking about another, which led to some confusion and inconsistencies.
42.As to the first attack, there was a fight between the two political parties in 2011 as a result of upcoming elections. My family was not a fan of the Pakistan Muslim League N (PML-N) and made some jokes about them. As a result, my family were attacked, but not much damage was done at that time.
43.In December 2011 my family were attacked again. This was a much more serious attack. 10 fully armed people attacked our deera in Sahiwal. They beat up my father and the rest of the female member's of my family. The attackers told my father to stop me from participating in projects of foreign NGO's and to stop me from being part of military swat operations otherwise they would kill the whole family and hang their heads in the centre of dera to set an example for the rest of the locality. When my father told me about what had happened I was shocked and fearful for my family's safety. I immediately left my job and went back to my family.
44.In 2012, I was working on a report regarding the murder of a Christian girl for [NGO 2]. I was outside the church when several people involved beat me with a gun, leaving me bleeding heavily. These people mentioned the report that I was working on while they beat me. [Pastor C] then found me and took me to the hospital, saving my life. I provided medical reports to show the injuries sustained. We had great difficulty in lodging the incident with police as they did not want to investigate the matter.
45.During the interview I indicated that I would like to submit extra documents for consideration with my claims. I had wanted to include these documents with my original application, but there are not many online systems so I had to have someone apply on my behalf in person, which takes a long time to receive anything. Eventually I had received a number of documents from my brother in Pakistan and I took them to Officeworks for scanning. The documents were sent to me in two batches - one batch was relevant and I intended to send that to the Department. The other batch of documents was not relevant. Unfortunately, I sent the wrong batch of documents to the Department and did not realise this for quite some time.
46.The Department has referred to these documents in the decision, indicating these documents appeared to be attempts to report an incident with police. I agree that these documents had no relation to the incident described above, as it was a separate matter. This report relates to another incident; my father owns a transport business and sometimes he has issues with transport people and transport groups. The incident was entirely irrelevant to my application.
47.However the Department referred to this document and stated that my attack did not take place. l don't understand why the Case Officer expected to see a police report when I already told her about the problems I had making a report to police. I do not understand how the Department can accept that I sustained injuries as shown in the medical reports, but not accept that I was attacked by Islamic groups due to my work with NGOs or any report I had written as a part of my work. I cannot understand how the Department can accept that I worked for NGO's, accept my injuries but not accept this. How else do you explain such a vicious and targeted attack.
48.As I described in my claims, I reported the incident to police in 2012 but police did not do anything.
Student Visa for [Country 2]
49.After being attacked, I realized I had to leave Pakistan and contacted an agent to assist with obtaining a Student visa for [Country 2]. I have a copy of an email between myself and the Education Agent in Pakistan ('Foreign Educators - Pakistan') dated 8 November 2012 when I first started working with the agent. I submitted all required documents to the agent in June 2013. I then discovered there had been an incident of theft in the agent's office and my passport had gone missing, along with all my other documents.
50.I immediately started to gather my documents again, but it took a long time to get copies of my education and personal documents.
51.At interview, the case officer asserted that the delay in obtaining a new passport was not indicative of someone who was fearful for his life and needed to leave the country. However this fails to take into account how long it takes to gather all of my education documents again. Everything happens so slowly in Pakistan. Each application to replace a document must be done manually. There are so many different departments that you have to visit just to get one document. It's not like Australia where you get everything after 1 week. In Pakistan there are different certificates for all the different levels of study, college, school and university. You can't apply online but only by written application will they issue second copies of documents. They must check all things, student ID etc. and you have to keep going back to get documents. It took forever to replace all of the documents that were lost during the theft.
52.I only applied for my passport once I had my other documents. You can see from my passport number that it is the second passport issued to me. The Department asserts that if I was genuine fearful I could have left Pakistan as a tourist, but this is not realistic. I never even considered this as an option at that time, after all, what country was going to give me a tourist visa at that time? The delay in replacing my documents was the reason why I was so delayed in applying for a visa to come to Australia. ln fact applying to come to Australia was a last minute decision. I had always been intending to go to [Country 2] which was a more difficult process as I did not really know where else to go at that time. My friend then told me about Australia which I discovered was more expensive. Realising I might be able to get to Australia more quickly, I changed my plans.
53.While I was waiting to get my documents, life still had to go on. I couldn't just put everything on hold while l waited for my documents. Instead to try and protect myself, I moved to Islamabad where I applied for a job in government department (refer below) which I thought would be safer than continuing my work with NGO's.
[Department 1]
54.I got a job as part of the [Department 1] at [Workplace 1] where I was appointed to [a specified program] in [Lahore]. We were overworked and understaffed. As a result, I had to take on additional jobs. My duties expanded to polio vaccinations as well. I provided a card that was issued to me by the [workplace] with an ID number and my name which says End Polio. The Case Officer suggested this document should be given no weight because it looked like an edited Word Document. I have a copy of the card issued to me which can be provided upon request. It can be compared to my driving license (a copy has been provided for the Tribunal's consideration) which was also issued in Pakistan. You can see that documents issued in Pakistan don't look as authoritative as documents issued in Australia. Because she doubted my proof, I don't think the case officer gave proper consideration to my claims regarding the threats I received as a result of my work with the [workplace[.
Coming to Australia
55.I applied for a Student visa for Australia on 25 January 2015. When l was in Australia, I was worried all the time about my family. Whilst I had saved my own life by coming to Australia, I could not protect my family back home. J felt stressed and homesick and it was affecting my studies. I kept thinking that maybe over time the situation in Pakistan would improve and I could return to be with my family, so I did not immediately apply for asylum in Australia.
56.By 2015, my mental health situation was not good and so I deferred my studies and went back to Pakistan because I was feeling stressed and homesick. I informed the university who accepted my request to defer my studies and I returned to Pakistan [in] September 2015.
57.Shortly after I returned to Pakistan September 2015, my family were targeted by members of the Pakistan Muslim League N (PML-N) because our family supported another political party. I am certain that PML-N had heard of my return to Pakistan and had intended to attack me. However, at the time of the attack I was not home because I was visiting relatives in another city (my mother's uncle in Okara). My father and brother were both injured in the attacks, and my sister was witness to the attacks although thankfully she was unharmed.
Further Attacks
58.The elections were being held in my area (Sahiwal) [in] November 2015. Me and my family attended to cast our vote and participate in the elections. When the voting system finished in the evening time and the results were announced confirming that the dominant political party, Pakistan Muslim League N (PML N), had lost the election, members of the party started to argue with my me and my family about the polling system being rigged. They were trying to infer that we were somehow involved with the party losing the elections. I had the feeling that they wanted to target me because there arguments did not make any sense and yet they kept trying to provoke me. My father told me to go home. When I was trying to leave, they followed me and targeted me with weapons. It didn't take them tong to catch up with me because there were about 30 or 40 people chasing me. A number of bystanders got caught up in the attack. It was like a battlefield, so many people were injured including me and my family. Fortunately I did not sustain any major injuries but I did not want to risk any further attacks.
59.Fearing for my life after the attack, I returned to Australia [in] November 2015, and arrived back in [Australia] on the [following day].
60.The Department has criticised my timing in applying for a Protection visa, saying that I delayed in making my application. You must understand that upon my return to Australia I was still enrolled in university and had obligations in respect of my Student visa. I hold Australian law in high regard and have always done my best to comply with the conditions of my visa. The next semester was due to start in February 2016. I had to submit an application to withdraw from my studies otherwise my visa would be cancelled. During this time I also prepared my protection file for submission. As I had only limited funds and no professional assistance, it was difficult for me to prepare the application on my own and it took longer than I expected. When the university fin ally released me in or around March / April, I submitted the protection file shortly after on 5 May 2016.
61.I understand that my application was refused due to a number of concerns about my credibility and my apparent delays in lodging my application for Protection. Ultimately, I have never wanted to be separated from my family, particularly my children. I never imagined that I would be separated by an ocean from my loved ones and everything that I hold dear. I have always continued to express hope that the conditions in my home country would improve, but unfortunately that hope has been in vain. It doesn't matter where I go in Pakistan, I will never be safe. If I go to lslamad or Lahore as I have done in the past, they follow me. Where am I supposed to go to be safe? Although I don't currently support any political party, my background and that of my family makes me a target. My degree is in [Discipline 1], I've worked for NGO's in in the [workplace] doing work that is not supported by extremist groups. Where can 1 live, work and be safe?
62.I genuinely fear for my life in Pakistan. I have tried to return to Pakistan, and on that occasion my fears for my safety and wellbeing were confirmed when I was attacked not once, but twice. Had I not made the heartbreaking decision to return to Australia without my family, I believe that I would have been killed.
Evidence:

The Tribunal has before it a range of material, including, relevantly:
Country of reference/ receiving country:
The applicant claims to be a Pakistani national. Based on evidence provided to the Department by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 13 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was accompanied by his Representative.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Pakistan. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Pakistan. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Pakistan.
The Tribunal noted that his claims as summarised in the Delegate’s Decision were in dispute. The Tribunal referenced the claims set out were set out in a statement of the applicant attached to his Protection Visa Application dated 6 May 2016, a Statutory Declaration of the applicant dated 1 April 2019 and a Submission from the Representative dated 6 January 2020.The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
The Tribunal commenced a general discussion with the applicant about his family and working history in Australia. The applicant advised that he is working in [Industry 1] in Australia.
The Tribunal discussed with the applicant his family and their present situation. The applicant advised that he has [children]. Both are living with his mother in Pakistan with the applicant’s family, that is, with the applicant’s father. The family home is in Sahiwal, which is about 150 kilometres from Lahore.
The applicant states that he has a good relationship with his father.
The Tribunal asked the applicant to reconcile that statement with a statement made in his Statement attached to his Protection Visa Application wherein he said that his family will not accept him as he is the only one who went against PMLN and participated in foreign NGOs projects, plus the Polio Scheme, due to which his family also suffers life threats. He said that he will never be able to go back to Pakistan and even his family would not be able to protect him from religious extremists who are against the Polio Scheme and the Taliban. In response, the applicant stated that his father simply wants him to stop doing that sort of work, that is, working for NGOs.
The Tribunal inquired of the applicant as to how safe the family feels in Pakistan. He replied that provided the applicant is not doing the work he was doing, there would be no attack on them. He went on further to say that because he is in Australia, there will be no attack on his family and therefore they feel safe.
The Tribunal inquired of the applicant about his return visits to Pakistan. The Tribunal noted that the applicant returned to Pakistan for approximately 2½ months in 2015. The applicant replied that he was suffering from a form of mental illness, he was stressed and terribly homesick.
Asked why he returned when he did, he replied that the election incidents referred to in his claims caused him to return to Australia. He was also urged by his father to return to Australia.
The Tribunal then inquired about travel from Australia in June 2018 for approximately one month. The applicant denied that he had returned to Pakistan, stating that he went to [Country 1] and met his family there. He confirmed this by reference to his passport.
The Tribunal acknowledged that the applicant’s claims and submissions were quite detailed but it sought to understand a timeline of events from the applicant. The applicant was only too pleased to oblige.
He stated that he was born on [date] in Sahiwal in Pakistan. He said he completed his primary education and secondary school education in the village and completed his senior education at college between [years].
He stated he travelled to Lahore in 2005 and graduated from a private university which he explained as offering online degrees. He said from 2008 to 2010, he continued to live in Lahore and attended [University 2] and obtained a [Qualification 2].
He then stated that from February 2011 to 2013, he was working for [NGO 2] in Islamabad. From the end of 2013 to immediately before coming to Australia in 2015, he worked in [Department 1] in Lahore.
The Tribunal referred to the applicant’s Statutory Declaration dated 1 April 2019. At paragraph 43, the applicant states that he immediately left his job and went back to his family upon learning of an attack upon them in December 2011. The Tribunal invited the applicant to reconcile that statement with his employment history just provided to the Tribunal that he worked with [NGO 2] from February 2011 until 2013. The applicant again readily obliged, saying that “left his job” did not mean that he resigned. He said he took leave and went back to visit his family and to check on them. He said he stayed for one to two months.
The Tribunal inquired of the applicant as to the attacks on his family, referencing his Statutory Declaration.
He stated that his family were attacked in 2002 following a federal election. The Tribunal noted that the applicant was still at school in 2002. He seemed to suggest such an attack was part of the cut and thrust of elections in Pakistan.
The applicant then spoke of a second attack in 2011. He stated that his family had become embroiled in a political dispute, suggesting that it was of little consequence.
The applicant then referred to a more serious attack in December of 2011. He stated that some fundamentalists attacked his family and told them that if their son did not stop affiliation with NGOs and doing social work, their son would be killed and the family would be too. The applicant confirmed that he was not present at the time of this attack.
The Tribunal had noted in his evidence to the Delegate that at first he said he was present and then subsequently changed his evidence to state that he was not present at the time of the attack. The Tribunal invited the applicant to reconcile that inconsistency. The Representative interjected and suggested that there was a degree of confusion as between the Delegate and the applicant in relation to the various attacks. She stated that the applicant had not referenced the first attack in 2011 in discussion with the Delegate and so was confused about which attack the Delegate was referring to. The Representative also submitted that the applicant tended to use the word “we” when talking about the family.
The applicant then proceeded to discuss an attack upon him [in] August 2012. He stated that at the time he was working for [NGO 2] and was writing a report on a murder. He said six to seven people attacked him with sticks, pipes and guns. He said he lost sense (consciousness). The Tribunal notes the provision of medical reports of his attendance at a hospital. He went on to add that he attempted to report the incident to police, but the police were not interested in his report. The Tribunal asked the applicant why it was that he thought he was attacked. He replied that he was attacked because of his association with social work, NGOs and the Christian community.
The Tribunal asked the applicant whether he had suffered any other attacks.
The applicant replied that his family was attacked again in September 2015, which was the first attack during his return visit. He stressed that he personally was not attacked as he was not at home, but that his family was attacked. He went on to add that they were again attacked by fundamentalists, with the reason being that he had returned home and the fundamentalists were aware of that.
The applicant stated that he was attacked [in] November 2015. He said that his family and many others were involved. He states that he believes he was the target. It took place after the local election and he noted that the opposition had lost the election. He provided an explanation that whilst his family supported the opposition, his father is the leader of the village. He said that approximately [number] people had voted in the election, yet the opposition that his father supported was defeated. The applicant stated that he did not support the PMLN, one of the opposition parties.
After that, his father urged him to return to Australia and he is apparently pleased his son is in Australia as the family is now safe.
The Tribunal inquired of the applicant as to his involvement in the Polio vaccinations. The Tribunal noted that the applicant was involved with the Polio vaccinations for just one year in 2003. The Tribunal also noted that the applicant was still at secondary school in 2003.
The applicant explained his involvement as merely helping the Polio workers. He would take the Polio workers to villagers’ homes and would persuade the villagers to take the prescribed pills.
The Tribunal noted a statement in the applicant’s Statement of 6 May 2016 that he believed he was a prominent participant in the Polio Scheme. The Tribunal queried his prominence in the Scheme given that he was involved for only one year whilst he was a schoolboy, and on his evidence at this hearing, seemed only to assist the workers. The Tribunal asked why there was a Fatwa taken out against him every year until 2012 as a consequence of that one year of involvement. The applicant replied that he was the first person to be persuading villagers to get vaccinations. He was blamed for bringing Polio vaccinations to his village and the Fatwa acted as a deterrent to others.
The Tribunal then queried the applicant about his claims as to Christianity. It noted that the applicant was a Muslim and was still a Muslim. The applicant confirmed that he had not converted to Christianity. He agreed with the suggestion that he could be described as a Christian sympathiser. He stated that he had been to Christian churches and had a relationship with a Christian community and helped them. He also discussed how he was letting Christians use his land. He explained that the land he referred to was properly his father’s land, but land that he was entitled to and that this land was located immediately adjacent to a precinct occupied by a Christian community. He said he volunteered his time to assist them and has been accused of promoting Christianity.
The Tribunal briefly discussed Country Information from the DFAT Report about the position of Christians in Pakistan, noting that 1.6% of the population were Christians, with about 3,300,000 people identifying as Christians. The Tribunal noted that DFAT assesses that Christians face a low level of official discrimination and a moderate level of societal discrimination and that Christians face a moderate risk of societal violence and sectarian violence. It noted that it had not seen any Country Information about Muslims promoting Christianity.
The Tribunal also took some time to discuss what corroborative evidence the applicant had in relation to the degrees that he had and the thesis referred to in his claims.
The applicant agreed to provide copies of each.
The Tribunal discussed with the applicant a concern it, and the Delegate before it, had in relation to the delay in him applying for a Protection Visa. The Tribunal noted that the applicant had not made a Protection Visa Application upon his arrival in Australia for the first time.
The applicant responded that he entered Australia on a Student Visa and had a Student Visa until the end of November 2015. He also stated that his situation when he first arrived in Australia was not as dire as it was after November 2015. In fact, up until his return to Pakistan in September 2015, the applicant was still hopeful that things might improve.
Notwithstanding this, the Tribunal still asked why it took the applicant six months to make a Protection Visa Application following his voluntary withdrawal from enrolment at university in November 2015. The applicant replied that whilst he did have some knowledge of the existence of Protection Visa Applications, he prepared the application on his own and did not take, and could not afford, professional advice.
The Tribunal noted the applicant’s reference to the multiple attacks on his family in 2011 and inquired why he had not mentioned the first attack in either his claims or to the Delegate. He responded that the first attack was not relevant to him as it was only a political dispute.
Post Hearing Submission:
The applicant’s Representative provided post hearing submissions dated 28 January 2020 to the Tribunal. The representative’s written submissions are set out as follows:
The Review Applicant fears being targeted and killed due to his association with Christians, Christian organisations and his employment activities. The Review Applicant claims that no matter where he moves to in Pakistan, he will be targeted and threatened by extremists who operate throughout the country. Moreover, the Review Applicant is unable to avail himself of state protection in Pakistan due to resource shortages, corruption, socio-economic factors at the individual level, and political will. Furthermore, successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. Similarly, police capacity in Pakistan is limited, due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Additionally, popular perception of high levels of police corruption is widespread and public perception of police is low.
REASONS FOR PERSECUTION (S.5J(1)(a))
As per the Department’s internal policy, it is noted that:
An applicant may not always express the harm feared directly as falling under these reasons. It is incumbent upon decision makers to consider the claims by the applicant and determine if any of the reasons for persecution are met by the meaning given to them.[17]
[17] 19/04/2016 – 18/05/2016 > PAM3 – Refugee and Humanitarian > PAM – Refugee Law Guidelines > RLG – Ch 6 – The five reasons for persecution – s 5J(1)(a).
Moreover,
A claim made by an applicant may not consist of expressly engaging a reason for persecution under s 5J(1)(a) but rather that the persecutor is motivated to inflict harm because the persecutor believes the applicant has the opinion, belief, or attribute that falls within s 5J(1)(a). For example, the applicant may not hold a particular religion or political opinion but a persecutor may believe they do because of certain actions, associations or other circumstances involving the applicant. In this sense the reason for persecution is said to be imputed to the applicant.
Where the applicant expresses a claim of persecution for an imputed reason it would be an erroneous line of enquiry to consider whether the applicant in fact has the attribute, opinion or belief that falls within the directly expressed ambit of s5J(1)(a). For example, an applicant may claim a persecutor thinks they hold a particular political opinion on the basis the applicant undertakes some type of employment perceived to be against the persecutor. In most cases that fit that example it could be inexpedient to make findings about whether the applicant does in fact hold the political opinion or has engaged in other political activity. The reason is that the basis of the claim is expressed from the perception of the persecutor rather than an expression that the applicant in fact holds a political opinion opposed to that of the persecutor.[18]
[18] Ibid.
In the decision record, it was stated by the case officer that:
DFAT’s latest report on Pakistan states “human rights organisations are at risk where their activities threaten militant groups or other vested interests”. However, I note that the applicant stopped working for [NGO 2] in 2013. I have found the applicant’s claims of being targeted due to his work as not credible. Considering the fact that the applicant has not worked for an NGO since 2013, and I have not found that at any point during his career he was targeted due to his work, I am not satisfied that there is a real chance that, if the applicant was returned to Pakistan, he will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s 5H and the criterion in s 36(2)(a) of the Act is not satisfied for this reason.
As will be outlined below, we respectfully submit that the case officer’s findings were incorrect.
Religion
As per the Procedures Advice Manual,
Religion usually encompasses practise and belief. Persecution for reasons of religion may occur because:
·the person holds or is imputed to hold a religious belief contrary to that of the persecutors
·the person is deemed to be practising the religion contrary to the manner the persecutors consider it should be practised
·the person is considered by the persecutors as someone who ought to be practising the religion but appears not to be
·the person holds no religion or professes to hold no religion and is claiming persecution on the basis of agnosticism or atheism.
If claims fall within this ambit the claims can be characterised as fearing persecution ‘for reasons of religion’ under s5J(1)(a).
We submit that the persecution experienced by the Review Applicant has occurred as the Review Applicant:
·Holds or is imputed to hold a religious belief contrary to that of the persecutors and
·Is deemed to be practicing the religion contrary to the manner the persecutors consider it should be practiced.
The Review Applicant is from Punjab, Pakistan and comes from a family of Ahle- Hadith Muslims. Growing up, the Review Applicant’s grandfather was appointed as Lumberdar (village representative) of the area, however, due to his passing, the Review Applicant’s father is now the Lumberdar. The Review Applicant’s father has always been involved in social causes to improve living standards in the village, however, this goes against the Pakistan Muslim League (N), a centre-right conservative party in Pakistan. As a result, the Review Applicant’s family is a target by this particular political group. Both the Review Applicant and his father have previously been beaten up and detained by affiliates of this group during election campaigns.
In 2003, the Review Applicant met Abdul Sattar Edhi, a Pakistani philanthropist, ascetic, and humanitarian who founded the Edhi Foundation. The Review Applicant idolised Mr Edhi and upon learning about his work, he volunteered at the Edhi Organisation as he liked the fact that they did not discriminate based on faith, caste, colour or race. It was in this same year that the Review Applicant’s involvement in the polio vaccination scheme began. Due to the Review Applicant’s active involvement in this scheme, a fatwa (a ruling on a point of Islamic law given by a recognised authority) was issued in his village by the molana who said that polio workers were committing an un-Islamic act by administering polio drops to children.
In the years that followed, the Review Applicant went on to complete tertiary qualifications, including a [Qualification 1] and [Qualification 2]. Whilst undertaking his [Qualification 2] in 2009, the Review Applicant partook in an internship, which entailed preparing reports on the concept that mosques and madrassas give birth to extremists. Unfortunately, this resulted in members of Jamat ul Dawa following him around and also being coerced by the President of Islami Jamiat-e-Talaba University, [Mr D] to cease his research as well as hand over all his documents and his mobile.
Throughout the course of his studies, the Review Applicant took part in various social welfare activities. The Review Applicant frequently visited Christian churches as part of his social welfare work and came to know [Pastor C]. The Review Applicant allowed the church to use his family’s land so that they would have a place to perform their religious obligations. This act of goodwill resulted in Sunni extremist groups accusing the Review Applicant of being an enemy of Islam, which is a serious accusation given the groups engagement in politically motivated violence and promotion of communal violence. Despite this, the Review Applicant then became involved in [NGO 1].
The Review Applicant was threatened and targeted as a result of his work with NGO’s and association with the polio vaccination scheme. As extremists had spread propaganda declaring the polio vaccination scheme as going against their religion, the mere fact that the Review Applicant was associated with the scheme resulted in him experiencing personal harm. In addition to the Review Applicant’s work with NGO’s and association with the polio vaccination scheme, the Review Applicant experienced persecution as a result of his association with Christians. Despite being a Muslim, the Review Applicant and his family were openly supporters and sympathisers with Christians. The Review Applicant comes from a traditional Islamic background, however, has an open and progressive mind on a number of sensitive social issues just like his family. While the Review Applicant has previously considered apostasy, it is a decision he cannot take lightly due to its consequence. “Religious conversion from Islam (apostasy), while not illegal, is often seen as blasphemous and can result in prosecution under blasphemy laws, or familial or communal violence.”[19] Punishment for blasphemy is death. Disturbingly, “while blasphemy laws apply to both Muslims and non-Muslims, it is not culturally acceptable for religious minorities to make accusations of blasphemy in Pakistan”.[20]
[19] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan (20 February 2019) < country-information-report-pakistan.pdf> at p 34.
[20] Ibid at p 35.
The 2018 annual report of the United States Commission on International Religious Freedom (USCIRF) designated Pakistan as a ‘country of particular concern’, observed increased incitement in the media of intolerance against religious minorities. [21] Alarmingly, USCIRF found the government failed to provide adequate protection to religious minorities and itself perpetrated systematic and egregious violations of religious freedom. USCIRF observed that religious minorities in Pakistan, including Hindus, Christians, Sikhs, Ahmadis and Shi’a Muslims, continued to face societal discrimination and attacks from extremist groups.[22]
[21] Ibid at p 33.
[22] Ibid at 34.
The DFAT Country Information Report Pakistan also notes that,
While there has been a declining trend in sectarian violence since 2014, the Pakistan Institute for Peace Studies (PIPs) recorded at least six terrorist attacks deliberately targeting religious minorities in 2017, killing 13 and injuring 57 people.
…
PIPs reported five incidents of faith-based mob violence in 2017.
Pakistanis are generally able to practice their religion without official interference or discrimination. However, DFAT notes a trend of increased religious conservatism and intolerance towards religious minorities in Pakistan, which is likely to continue in 2019. Most religious minorities face a moderate risk of societal discrimination and violence targeting religious ceremonies and places of worship.[23]
[23] Ibid.
DFAT’S report notes that ‘Christians are the most economically vulnerable group in Pakistan and face significant social prejudice and class discrimination’.[24] Moreover,
[24] Ibid at 42.
In 2018, Christian support group, Open Doors, ranked Pakistan fifth (out of fifty) most difficult country to be a Christian on its World Watch List. Many Pakistanis refer to Christians as ‘bhangi’ meaning dirty or sweepers. In 2018, politician Arif Abbasi reportedly referred to Christians as ‘churna’ in a National Assembly debate (meaning low- caste, but also with connotations of cleaning / sanitation work). Some advertisements for low-status work ask for Christian applicants only. Many Christians are bonded labourers with little education and thus limited access to legal remedies. Christians are also disproportionately represented in blasphemy cases.
Pakistan law does not restrict Christians from practicing their religion, although some face difficulties in establishing new places of worship. Sharia law protects Christians as ‘people of the Book’, but these protections are rarely observed in practice.[25]
[25] Ibid.
The report also states that ‘militant groups target Christian individuals, churches, residences or other places where Christians congregate.[26] Sadly, community members claim that police have, on occasion, not responded adequately to attacks on Christians. In December 2017, ISIL claimed responsibility for a suicide attack on the Bethel Memorial Methodist Church in Quetta, killing nine worshippers and injuring at least 35. Four hundred worshippers were attending a service, but Christians claim no police were in the area, which was unusual. The US Department of State’s 2017 Country Report on Human Rights Practices also reported that police often fail to protect religious minorities, including Christians.[27]
[26] Ibid.
[27] Ibid.
Overall,
DFAT assesses that Christians face a low level of official discrimination and a moderate level of societal discrimination. DFAT further assesses that Christians face a moderate risk of societal violence and sectarian violence. DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy disproportionately affect religious minorities, including Christians, in Pakistan.[28]
[28] Ibid.
Given how public the Review Applicant’s association with Christians is, the goodwill towards Christians on the part of the Review Applicant and his family positions them as enemies of Islam in the eyes of extremist groups and other Muslims. This is especially so given that minorities such as Christians face societal discrimination and attacks from extremist groups. As a result, the Review Applicant himself and his family also become vulnerable to attacks from various extremist groups.
As the Review Applicant’s claims fall within this ambit, it is submitted that his claims can be characterized as fearing persecution ‘for reasons of religion’ under s 5J(1)(a).
Membership of a particular social group
For the purposes of the Act (s 5L), it will be argued that the Review Applicant also faces persecution due to membership of a social group other than family.
As outlined in the Department’s internal policy,
The definition of membership of a particular social group in s5L may be considered from the perspective that there are four requisites comprising of three elements that must be established and an additional one element out of three:
Three elements that must be established:
·     there is a characteristic shared by each member of the group
·     the person claiming to be a member of the group shares (or is perceived as sharing) the characteristic and
·     the characteristic is not a fear of persecution.
Additional one element - MUST have one of:
·     the characteristic is innate or immutable or
·     the characteristic is so fundamental to a member’s identity or conscience the member should not be forced to renounce it or
·     the characteristic distinguishes the group from society.
Per Department policy, a particular social group is established with respect to the cultural, social, religious and legal norms of a country, and while acts may identify a person holding a characteristic, the acts themselves are only the manifestation of a characteristic rather than being a characteristic themselves. For this reason, a person claiming a particular social group on the basis of acts alone will be unlikely to establish there is an innate or immutable characteristic. For example, claim of membership of a particular social group comprising of "people who install satellite dishes in Mosques" will not be able to show an innate or immutable characteristic. If there is some characteristic that leads to such people installing satellite dishes in Mosques then the particular social group more accurately should be described in consideration of that characteristic rather than the behaviour that shows it.
We respectfully submit that the Review Applicant has experienced persecution as a result of his membership of a particular social group other than family. That is, his occupation as a social worker.
The case officers’ findings that only polio workers were being targeted by extremists is incorrect. DFAT’s latest report on Pakistan states,
Non-government health workers face a moderate risk of violence from militant groups, particularly those involved in polio vaccination programs. While attacks on health workers, NGOs, human rights activists and civil society actors can occur in any part of Pakistan, attacks are more common in areas where the security is worse, including Khyber Pakhtunkhwa, the former FATA and Balochistan. Harassment and monitoring by security forces can occur anywhere across the country.[29]
[29] Ibid at p 46.
Accordingly, despite the case officer expressing their disbelief in relation to the Review Applicant’s claims, we respectfully submit that the Review Applicant’s claims of being targeted due to his work are credible and genuine.
After completing his studies, the Review Applicant went on to work for NGO’s conducting various social welfare activities. The Review Applicant received further threats by the Taliban and Jamat ul Dawa during his employment with the non- government organisation (NGO) [NGO 2] as a [Position 1]. Notably, the Review Applicant’s family were attacked in their home by people who threatened to kill them if the Review Applicant did not cease his work with NGOs. While working on a project for [NGO 2] outside a church, the Review Applicant was attacked by fundamentalists. However, the politics in the region made it difficult for the Review Applicant to seek any justice following the attack, as the police were unwilling to intervene.
The Review Applicant then sought employment at [Workplace 1] in [Department 1], which also looked after the polio scheme. As a result, the Review Applicant would frequently receive threats from Islamic Jamayat Talba as a result of his employment.
The Review Applicant returned to Pakistan in September 2015 and shortly after arriving in his hometown, members of the Pakistan Muslim League N (PML-N) targeted his family while the Review Applicant was absent from the house. [In] November 2015, while trying to vote at the local body elections the Review Applicant was attacked in his village. Fearing for his life following the attack, which left him seriously injured, the Review Applicant fled Pakistan in November 2015 and returned to Australia [in] November 2015.
The Review Applicant was threatened and targeted as a result of his work with NGO’s and association with the polio vaccination scheme. As extremists had spread propaganda declaring the polio vaccination scheme as going against their religion, the mere fact that the Review Applicant was associated with the scheme resulted in him experiencing personal harm.
According to the DFAT Country Information Report Pakistan,
Human rights activists and journalists reporting on human rights issues face significant risk of harassment. Restrictions on civil society organisations have also significantly reduced the space for civil society in Pakistan.[30]
[30] Ibid at p 47.
In relation to the poliovirus, the DFAT report notes that,
Pakistan is one of three countries in the world (with Afghanistan and Nigeria) where endemic transmission of wild poliovirus continues to occur, and the poor security environment across the country affects health workers: targeted killings of polio health workers is common (international media estimates at least 70 polio workers were killed between 2011 and 2015 alone) and continued in 2018.
…
Many religious and secular charities provide emergency relief, education and health services, but generally focus their support on the specific needs of their community or sect.[31]
[31] Ibid at p 12.
In terms of Human Rights Organisations, it is reported that
Activists who are critical of the government or who travel to sensitive areas are also subject to additional scrutiny by the authorities. Activists, especially human rights activists, may also be subject to physical and electronic surveillance by authorities and/or subject to harassment and violence. While DFAT is unable to verify reports that security forces have harassed family members of human rights activists, including with violence, the US State Department 2017 Pakistan Human Rights Report states ‘security forces, political parties, militants, and other groups subjected media outlets, journalists, and their families to violence and harassment’.
Human rights organisations also face risks of violence from militant groups when activities threaten the militants’ interests. The TTP [Tehreek-e-Taliban] has banned polio vaccinations and regularly carries out attacks on polio workers, as does ISIL, claiming they are a western plot to sterilize Muslims. Militant groups killed more than 100 people in attacks on polio workers between December 2012 and September 2016. Attacks continued in 2017 and 2018.
DFAT assesses that human rights activists and civil society actors who criticize the government and military, or who work on topics deemed sensitive, face a moderate to high risk of official discrimination including harassment and violence by security forces. DFAT assesses human rights activists face a moderate to high risk of harassment and violence from militant groups.
There are various media reports, which outline the dangers faced by health and social workers. For instance, an article published by Devex,[32] revealed that a health clinic in a Peshawar suburb was torched by an angry mob. It also noted that two policemen accompanying polio teams in the province and a female polio worker in Balochistan province were shot dead. These attacks were a result of an ill-founded belief by Muslims that the polio vaccine caused adverse effects on children, causing widespread panic. Following these incidents, polio workers would of course fear for their lives as they reported receiving threats and being followed home. The health workers interviewed in the article cited a misconception that the people believe they are working for Western NGOs, when in fact they are employed by the Pakistani government. The dangers of being associated with the polio vaccination scheme are widely publicised. Devex reported that in 2018, a well-known religious scholar, Maulana Samiul Haq, issued a fatwa, a religious decree, in favour of vaccination. Sadly, he was murdered that same year.
[32] Devex.com, In Pakistan, attacks on polio workers stop vaccination drive by Maija Liuhto (3 June 2019) < vaccination-drive-94959>; The New York Times, Concern over violence grows in Karachi as a Social Worker is mourned by Declan Walsh (15 March 2013) < parween-rahman-is-mourned.html>.
The National, which reports on the Middle East, noted in an article that,
Pakistan’s anti-polio campaign has long been a dangerous task. One hundred people – both police and health workers – have been killed in attacks targeting polio vaccination campaigns since 2012, including three in Korangi in eastern Karachi in 2014, who were not part of the programme.[33]
[33] ‘Dispelling fears and suspicion in Pakistan’s polio fight,’ The National, 21 March 2016,
Accordingly, contrary to the case officer’s findings, we submit that the Review Applicant would have been targeted by Islamic groups for his involvement in the polio vaccination scheme and further, due to his thesis. This is especially so due to ‘a concerted propaganda campaign by militants operating from the Pakistan- Afghanistan border region, and supported by some religious clerics’ who ‘spun a narrative linking vaccination programmes to a Western plot to sterilise Muslims and painted vaccinators as spies for the US Central Intelligence Agency’s (CIA) highly unpopular drone programme; especially after revelations that the CIA funded a fake hepatitis B vaccination campaign in Abbottabad to trace Osama bin Laden’.[34]
[34] Ibid.
The situation in Pakistan remains fluid and those trying to improve the situation of the less fortunate face unpredictable attacks by extremist groups. The Review Applicant and his family have a profile in their local community, which has resulted in them being targeted and harmed in the past. In the event that the Review Applicant were to return home, it is likely that through his family he will be involved in community and religious affairs especially as the Review Applicant’s father continues to hold the position of Lumberdar in his village, and to maintain his ties with Christians. The Review Applicant’s father had a history of assisting the church and had previously allowed the church to use the family land to build a church on it. In the Review Applicant’s local area, Christians, Hindus and other religious minorities generally live peacefully alongside their Muslim neighbours. In fact, the Review Applicant’s village and his family’s land shares a boundary with a Christian village. This has also resulted in the Review Applicant having daily interactions with Christians both on a personal level and through his work with NGO’s.
If the Review Applicant were to return to Pakistan, he would have little choice but to seek employment as a social worker in order to obtain a reasonable salary and a meaningful existence in line with his human interests. His career profile and employability is subject to his employment history and tertiary studies, leading to the conclusion that he would likely be forced to continue his working for NGO’s and / or health organisations should he return to Pakistan. Whilst the Review Applicant has been able to sustain a living in Australia performing unskilled work in [Industry 1], the lack of minimum wage requirements do not make such work a viable solution in Pakistan. Moreover, if the Review Applicant were to return to Pakistan, it is logical for him seek employment in his field of expertise, which will likely involve him travelling to outlying areas in the course of his employment and thereby placing him at additional risk of harm.
Based on the above, we respectfully submit that given the Review Applicant’s circumstances, which heighten his visibility and raise his risk profile, there is a greater than remote risk that he will be targeted by extremists if he were to return to Pakistan for reasons of his association of a particular social group in the reasonably foreseeable future.
Summary of persecution claims
The Review Applicant’s claims were discussed at length during the hearing. The Review Applicant insists that he is unable to return to Pakistan, as he has a well- founded fear of persecution, which involves serious harm. The Review Applicant’s family history and his personal background (including employment history) make him a target as he has engaged in conduct that goes against extremist and political groups in Pakistan. These groups are willing to use violence to act out their personal, political or religiously motivated grievances.
The Review Applicant is unable to seek protection from authorities in his home country. Moreover, the Review Applicant’s family is ill-equipped to offer any kind of safety and protection to him. The Review Applicant’s discernible history of going against the PML-N as well as his work with foreign NGO’s and involvement in the polio scheme, as a whole, put him and his immediate family at risk of personal targeted attacks from extremist groups who are against his work.
Based on the above, it is respectfully submitted that the Review Applicant faces a real chance that if he were to return to Pakistan, he will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The Review Applicant will be targeted because of the cumulative elements, which make up his particular profile – his religious and community profile (Christian supporter) and his profession (social worker). Accordingly, the Review Applicant’s real chance of harm from extremists extends outside of his region to the whole country. It is the Review Applicant’s position that he has a well-founded fear of persecution in Pakistan should he return there now or in the reasonably foreseeable future for reason of his religious associations and belonging to a particular social group.
In this regard, we respectfully submit that the Review Applicant is therefore a refugee as defined in s 5H and therefore, a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION – s36(2)(aa)
In the event the Review Applicant is found not to be a refugee, we would submit that there are grounds for a positive determination of the Review Applicant’s claims under complementary protection as outlined in s 36(2)(aa) of the Act. The criterion is that the decision maker is satisfied that the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because:
There are 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.
Section 36(2A) provides that a non-citizen suffer ‘significant harm’ if:
·     they will be arbitrarily deprived of their life or
·     the death penalty will be carried out on them or
·     they will be subjected to torture or
·     they will be subjected to cruel or inhuman treatment or punishment or
·     they will be subjected to degrading treatment or punishment.
The terms ‘torture’ and ‘cruel or inhuman treatment or punishment’ etc. are defined in s5(1) of the Act. The definitions derive from, and require decision makers to turn their minds to, international jurisprudence.
The terms ‘torture’ and ‘cruel or inhuman treatment or punishment’ etc. are defined in s5(1) of the Act. The definitions derive from, and require decision makers to turn their minds to, international jurisprudence.
As per Department policy,
‘In practice, the categories of significant harm may overlap. It is possible that a claimed harm could meet more than one of these categories of significant harm’.
Relevant to the Review Applicant’s circumstances, section 5(1) of the Act defines "cruel or inhuman treatment or punishment" to mean an act or omission by which, inter alia, severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.
"Torture" is defined under section 5(1) to mean, inter alia, an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person 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.
Taking into account all circumstances and evidence, we would submit that the evidence shows there is a real chance that our client will face a threat to his life or liberty (arbitrarily deprived of his life), significant physical harassment and/or ill- treatment (torture / cruel or inhuman treatment or punishment) if he were to return to Pakistan now or in the reasonably foreseeable future. Furthermore, the harm he would be subjected to involves ‘serious harm’ as required by paragraph s 5J(5) of the Act.
As outlined in the Review Applicant’s claims for protection, the Review Applicant has previously experienced threats, harassment and physical harm at the hands of extremist groups. The Review Applicant has been personally attacked on numerous occasions, the most significant of which in 2012 wherein he almost died as a result of the injuries sustained. The Review Applicant’s family have also both directly and indirectly experienced harm as a result of the Review Applicant’s particular profile. Despite a temporary relocation to Australia in 2015, the Review Applicant returned to Pakistan in late 2015 and faced further attacks, reiterating that time alone will not serve to lessen the risk posed should the Review Applicant return to Pakistan.
The Review Applicant’s family was attacked in 2011 due to his involvement with [NGO 2] (particularly, as it was a non-Muslim organisation run predominantly by Christians), which according to his employment reference, was between February 2011 and November 2013 as a [Position 1]. The Review Applicant was personally attacked in 2012 by fundamentalists while working on a project for [NGO 2] outside a church. However, the politics in the region made it difficult for the Review Applicant to seek any justice following the attack, as the police were unwilling to intervene despite court orders in place. In fact, as it related to a religious issue, the police were reluctant to do anything.
The first attack on the Review Applicant’s family occurred due to a joke the family had made in relation to the Pakistan Muslim League N (PML-N). This resulted in the in the family being attacked and receiving non-life threatening injuries.
The second attack on the Review Applicant’s family occurred in December 2011. During this attack, 10 fully armed people attacked the family’s deera in Sahiwal and left the family with life threatening injuries – the Review Applicant’s father and female members of their family were all seriously assaulted. During the attack, the assailants commanded the Review Applicant’s father to stop the Review Applicant from participating in projects of foreign NGO’s and to stop involving himself in military operations, otherwise the family would be murdered and their bodies decapitated. These events prompted the Review Applicant to cease his employment and return to be with his family.
While the Review Applicant was not present during the attacks on his family, there is no question that the attacks were originally aimed at him, and if he were present, he would have been seriously assaulted and / or killed.
It must be noted that Pakistani politics encompasses a broad range of political, ethnic and religious groups.[35]During this particular election, the dominant political party, Pakistan Muslim League N (PML-N), lost the election. A group of people politically affiliated with the PML-N began to argue with the Review Applicant’s family about the polling system being corrupt. Although the accusations made towards the Review Applicant and his family were nonsense, they continued to provoke the Review Applicant. Fearing that the situation would escalate further, the Review Applicant’s father requested the Review Applicant to leave and go home. As the Review Applicant tried to leave, he was followed by a group of about 30 or 40 people armed with various weapons. Eventually, the attack became physical, which also resulted in a number of bystanders getting caught up in the attack. The incident resulted in both the Review Applicant and his family receiving non-life threatening injuries.
[35] Ibid.
Taking into account the totality of the evidence before the Tribunal and the considerations in the Review Applicant’s case as set out in detail during the hearing, it is clear that our client faces a real risk of torture or significant harm from extremist groups on return to Pakistan. That harm involves severe physical or mental pain or suffering or both, which is intentionally inflicted on the applicant, designed to both punish and intimidate him. The Tribunal should therefore be satisfied that the treatment that the Review Applicant will be subjected to meets the threshold for several categories of significant harm as defined in s 5(1) of the Act.
It is necessary for the Department to consider if the applicant could obtain from the Pakistani authorities protection such that there would not be a real risk that he would suffer significant harm as referred to under s 36(2B)(b) of the Act.
Sadly, victims of crime in Pakistan face great difficulty in obtaining justice as police often refuse to register and investigate complaints known as FIRs.[36] In cases where complaints are registered, they are often tainted by bribes and biased investigations.
[36] This Crooked System: Police Abuse and Reform in Pakistan’, Human Rights Watch (2016) < Review Applicant’s limited ability to seek justice is also further supported by DFAT Country Information Report Pakistan, which details that,
Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.
Despite measures introduced to curb violence across the country under the NAP-strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due in part to the ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families.[37]
[37] Above n 3.
In relation to police in Pakistan, the Department of Foreign Affair and Trade (DFAT) found that,
The effectiveness of provincial police forces in Pakistan and the challenges faced by these forces vary. However, overall, police capacity in Pakistan is limited, due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Sectarian violence and domestic terrorism diverts resources from community ‘policing’ to a more incident response and security/guarding role. Popular perception of high levels of police corruption is widespread. Overall, public perception of police is low. [38]
In view of this, it is reasonable to believe that the Review Applicant would be unable to avail himself of effective protection measures in the event he faces serious harm from extremists in other parts of Pakistan. For these reasons, we submit that the Review Applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the Review Applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
In regards to internal relocation, DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country.[39] In addition, DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate.[40]
CONCLUSION
Based on the above, it is respectfully submitted that the Review Applicant faces a real chance that if he were to return to Pakistan, he will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The Review Applicant will be targeted because of the cumulative elements, which make up his particular profile – his religious and community profile (Christian supporter) and his profession (social worker). Accordingly, the Review Applicant’s real chance of harm from extremists extends outside of his region to the whole country. It is the Review Applicant’s position that he has a well-founded fear of persecution in Pakistan should he return there now or in the reasonably foreseeable future for reason of his religious associations and belonging to a particular social group. In this regard, we respectfully submit that the Review Applicant is therefore a refugee as defined in s 5H and therefore, a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
In the event the Review Applicant is found not to be a refugee, we would submit that there are grounds for a positive determination of the Review Applicant’s claims under complementary protection as outlined in s 36(2)(aa) of the Act. Taking into account all circumstances and evidence, we would submit that the evidence shows there is a real chance that our client will face a threat to his life or liberty (arbitrarily deprived of his life), significant physical harassment and/or ill-treatment (torture / cruel or inhuman treatment or punishment) if he were to return to Pakistan now or in the reasonably foreseeable future. It has been demonstrated that the Review Applicant would be unable to relocate to another area of the country; is unable to obtain protection from authorities in Pakistan so that there would not be a real risk that he will suffer significant harm and the real risk is one faced by the population of the country generally and is not faced by him personally. As a person can be granted a protection visa on the basis of complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer ‘significant harm’ if they were removed from Australia to their home country, we respectfully submit a positive determination should be made in our client’s case having regard his personal circumstances.
[38] Ibid.
[39] Ibid at p 66.
[40] Ibid at p 68.
Assessment of Claims and evidence, and findings in relation to the applicant:

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[41]
[41] 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.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In MIEA and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[42] However, the Handbook also states (at paragraph 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[42] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The applicant presented to the Tribunal as a very enthusiastic witness. The Tribunal sensed that the applicant was bursting to provide his evidence and seemed particularly motivated to “clear his name” of the credibility findings made “against” him by the Delegate. To that end, when the Tribunal raised concerns with his evidence as discussed with the Delegate, the applicant became particularly animated and detailed in his explanations of any inconsistencies in evidence presented to the Delegate and his written claims. In all, the Tribunal found the applicant to be an impressive witness.
Notwithstanding this, the Tribunal had some concerns, being similar concerns to those raised by the Delegate.
The first concern related to the period of time in which it took the applicant to leave Pakistan, given the seriousness of his claim of harm against him in an attack in 2012. The Tribunal had noted that the applicant was the victim of a serious assault in August 2012 yet did not make an Application for a Student Visa to come to Australia until January 2015. The applicant provided a detailed explanation as to his attempts to move to [Country 2] in late 2012 and went to some lengths to explain the process he undertook to apply for a Student Visa through his own university. It would appear that it was only as a consequence of the theft of his passport and education documents from the visa agent’s office that his relocation to [Country 2] was unsuccessful at that time.
The applicant went on to explain that he was able to replace his passport almost immediately but that it took some considerable time in order to replace all of his records in relation to his educational qualifications.
He then became motivated to apply for a Student Visa to Australia, but there was significant delay as he attempted to seek replacement records of his qualifications and put sufficient funds together as required by the Australian Student Visa process.
The applicant explained that whilst he waited to seek a Visa to leave Pakistan, he relocated to Islamabad and took a government job there, believing he would be somewhat more secure.
The Tribunal found this explanation plausible.
The Tribunal was also troubled by the period of time in which it took the applicant to apply for a Protection Visa when he ultimately arrived in Australia. He did not seek a Protection Visa when he first arrived in Australia, as he believed he had security pursuant to his Student Visa and, the applicant stated, he was hopeful that things might improve in Pakistan whilst he was in Australia.
He returned to Pakistan in September 2015 and returned to Australia again in November of 2015. He applied for a Protection Visa on 2 May 2016. The Tribunal discussed with the applicant its concerns as to how long it took him to apply for a Protection Visa after returning to Australia.
Again, his explanation was enthusiastic and detailed. He explained that he was aware of Protection Visas, but that he believed he had to first forfeit his Student Visa and proceeded to do so in February of 2016. He then explained that confirmation of the termination of his Student Visa came through in April 2016 and he applied for the Protection Visa in May. He said it took him a long time to prepare the documentation for his Protection Visa and have it accompanied by supporting documentation. The Tribunal notes that the applicant’s Protection Visa Application was unusually detailed. It also notes that he did not receive professional advice in compiling the Protection Visa Application, statements and supporting documentation and accepts that it was likely that he could not afford to do so.
The Tribunal acknowledges that such a delay might be considered as a reason to cast doubts upon an applicant’s credibility. In this case, the Tribunal was satisfied that the applicant’s explanations were again plausible.
Like the Delegate, the Tribunal also had some concerns about why the applicant had returned to Pakistan in September of 2015 in the face of the concerns that he had for his safety. The applicant’s statements and his evidence at the hearing were consistent in that he said he was suffering a form of mental anguish and homesickness as he was in Australia alone and his family, including his wife and two young sons, were in Pakistan. Notwithstanding the applicant’s response, the Tribunal did maintain some concerns as to why he would expose himself to the risks that he claimed existed because of his beliefs and occupation in Pakistan, however, on a more detailed analysis of the applicant’s claims, it would appear that the events that occurred during his visit to Pakistan from September to November 2015 were the tipping points for his claim for protection and that until then, he remained hopeful that he would return to Pakistan. On this basis, the Tribunal has given the applicant the benefit of very considerable doubt in accepting the reasonableness of his explanation.
The Tribunal also noted that the Delegate had concerns about some inconsistencies in relation to the Delegate’s statements and his written claims. One such concern related to assaults upon the applicant’s family during 2011.
In his written statements and the submissions of the Representative, the applicant has explained in some detail, and in chronological order, the sequence of events during that year. The Tribunal must admit, that notwithstanding that it had the benefit of written statements detailing the said sequence of events, when discussing all of them, being the various assaults by different people upon the different members of his family, it was not difficult to become confused as to which particular assault was being discussed at any given time. As can be seen above, the Tribunal took some time to go through the timeline of events with the applicant, detailing at length the applicant’s career, where he was located at particular times, who his employers were at particular times, the nature of his works, both employment and charitable, and, of course, the assaults upon him and his family. During the course of the dissertation of his history, the Tribunal was impressed by the clarity of his recollection and noted that the applicant was not resorting to viewing notes or copies of his various statements. The Tribunal found the applicant to be both confident, and his evidence consistent with the various statements that he has made over the course of time and recorded herein.
Accordingly, the applicant has allayed many of the concerns that the Tribunal initially had as to his credibility and the genuineness of his claims.
On this basis, the Tribunal accepts that the applicant was involved in the Polio vaccination scheme during 2003 by assisting the Health Department workers explain to villagers the nature of the vaccinations and assisted them in providing the necessary medication. The Tribunal also accepts that the applicant facilitated visits to villagers’ homes in order for vaccinations to be taken in their homes.
The Tribunal accepts that a Fatwa was issued in his name every year from 2003 to 2012 given that general Fatwas were issued every year against people who were involved in the Polio scheme.
The Tribunal accepts Country Information that the TTP banned Polio vaccinations and regularly carried out attacks on Polio workers, and also accepts that ISIL believes the vaccination scheme to be a western plot to sterilise Muslims and that militants have killed more than 100 people in attacks on Polio workers between December 2012 and September 2016, with attacks continuing into 2017 and 2018.
The Tribunal accepts that the applicant volunteered with the Edhi organisation from 2005 to 2008 on an irregular basis and again in 2009.
The Tribunal accepts that the applicant also performed voluntary work with other non-government organisations.
The Tribunal also accepts that his involvement in such voluntary work caused him to question his Muslim faith, but accepts that he has not converted from that Muslim faith and remains a practicing Muslim.
The Tribunal accepts that the applicant worked for [NGO 2] between February 2011 and November 2013 as a [Position 1].
The Tribunal accepts that [NGO 2] is a non-Muslim organisation run predominantly by Christians.
In terms of the applicant’s education, the Tribunal accepts that the applicant completed an internship which involved him preparing reports on the concept that mosques and madrassas give birth to extremists. The Tribunal accepts that as a consequence of that, the applicant was followed around and was approached directly by the President of Islami Jamiat-e-Talaba [University 2] and was directed to hand over all of his documents and his mobile phone. The Tribunal accepts that such documents contained information that would have been compromising to the applicant.
The Tribunal also accepts that as part of the applicant’s [Qualification 2], the applicant prepared and presented a thesis (a copy of which was provided to the Tribunal) which related to the awareness of family planning practices, which required the applicant to visit rural areas to collect data and to discuss with people their awareness of forms of birth control.
The Tribunal accepts that the applicant’s work on his thesis came to the knowledge of local militants and resulted in the applicant’s views being interpreted by those militia.
The Tribunal accepts that the applicant’s family was attacked twice during 2011. The first was in early 2011 and was, as the applicant described it, nothing more than a political skirmish to which he had no involvement.
The second assault was in December 2011 and his family was seriously assaulted. The Tribunal accepts that that assault was related to the applicant’s participation in foreign NGOs and his work as a Social Worker.
The Tribunal accepts that during 2012, the applicant was preparing a report in relation to the murder of a Christian girl. It accepts that whilst standing outside a church whilst working on that report, the applicant was seriously assaulted. Medical evidence provided to the Tribunal is consistent with the injuries the applicant claimed to sustain.
The Tribunal, on the basis of Country Information presented, accepts that the Police most likely did not wish to record an FIR and that consequently, the assault was not investigated.
The Tribunal accepts that whilst working with [NGO 2], the applicant has become involved with the Christian faith, observing it at close quarters. The Tribunal accepts that the applicant has visited and entered Christian churches.
The Tribunal accepts that the applicant and his father have allowed a Christian community to use their land to build a church for religious observance.
The Tribunal accepts the applicant’s explanation as to what he meant in his written claims about the land being allotted to the community. It accepts that the applicant did not transfer title to the Christian Community.
The Tribunal accepts that the applicant was befriended by [Pastor C] and spent time with him.
The Tribunal accepts that the applicant applied for a Visa to [Country 2] but that his records were stolen in a theft at the office of the Visa Agent.
The Tribunal accepts that the applicant took a position at [Department 1] at [Workplace 1]. The Tribunal accepts that that position involved the applicant re-engaging with the Polio Vaccination Scheme.
The Tribunal accepts that the applicant returned to Pakistan in September 2015 and that his family was again attacked on the basis of militants learning of his return to Pakistan. The Tribunal accepts that the applicant was not at home on this occasion.
The Tribunal accepts that during the election process in November 2015, the applicant and his family were again attacked and as a consequence of that attack, the applicant fled and returned to Australia.
The Tribunal has had submitted to it an extraordinary amount of Country Information relating to the plight of people involved with the Polio Vaccination Scheme, and Christians, Social Workers and people working with NGOs.
The Tribunal accepts that Country Information to the extent that non-government health workers face a moderate risk of violence from militant groups, particularly those involved in Polio vaccination programs.
The Tribunal accepts Country Information that DFAT assesses that Christians face a low level of official discrimination and a moderate level of societal discrimination, and that Christians face a moderate risk of societal violence and sectarian violence.
Given the Tribunal’s findings, and if the Tribunal were to consider each of the applicant’s claims in isolation, the Tribunal would find that such cited low levels of official and societal discrimination would not constitute serious harm.
However, the applicant is not claiming to be a Christian and the Tribunal acknowledges Country Information that notes the existence of many millions of Christians in Pakistan and the fact that Pakistan law does not restrict Christians from practicing their religion.
The Tribunal acknowledges that it must consider all of the applicant’s claims, individually and cumulatively, and all the evidence and Country Information, as well as the personal circumstances of the applicant.
The applicant is a Muslim, and a practicing Muslim, who is also perceived to be a Christian sympathiser, as one who offers his land to Christians to build a church, visits Christian churches, works with Christian Pastors and otherwise engages in activities, such as assisting the Polio Vaccination Scheme and writing reports into the deaths of Christian children. The Tribunal accepts the argument that this places the applicant in a position as being significantly worse than actually being a Christian himself.
Coupled with the fact that the applicant has been seriously assaulted in the past and most recently upon his return to Pakistan, and the fact that his family has been assaulted on the basis of his engagement with NGOs and social work, and in light of all of the Country Information submitted and at the Tribunal’s disposal, the Tribunal is minded to accept that the applicant genuinely fears persecution in Pakistan, now and in the reasonably foreseeable future by reason of:
The Tribunal also accepts the applicant’s claim, and supported by Country Information provided to it, that he is unable to seek protection from authorities in his home country.
In view of all of the above country information, the Tribunal is satisfied that the applicant faces a real chance of persecution as opposed to a remote or far-fetched possibility of serious harm if he returns to Pakistan now or in the reasonably foreseeable future.
Having considered all of the applicant's claims, individually and cumulatively, all the evidence, the submissions and in view of the findings and country information above, the Tribunal finds that the applicant fears being persecuted by reason of him holding, or being imputed to hold, a religious belief contrary to that of the persecutors; him practicing his own religion contrary to the manner in which the persecutors consider it should be practiced and that he is a member of a particular social group of Social Worker working with NGOs, and that there is a real chance that he would be persecuted, including being subjected to significant physical harassment and ill treatment, if he returns to Pakistan now or in the reasonably foreseeable future.
The Tribunal finds that the persecution will be directed at him for the essential and significant reasons stated above and that the persecution involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves selective harassment or ill treatment for reason of him holding, or being imputed to hold, a religious belief contrary to that of the persecutors; him practicing his own religion contrary to the manner in which the persecutors consider it should be practiced and him being a member of a particular social group of Social Worker working with NGOs.
Given the Pakistani governments central role in maintaining law and order and its perpetration of ‘systematic and egregious violations of religious freedom’[43] and its failure ‘to provide adequate protection to religious minorities’,[44] the Tribunal finds that the real chance of persecution relates to all areas of Pakistan and effective protection measures are not available to the applicant in Pakistan.
[43] 2018 Annual Report by the United States Commission on International Religious Freedom.
[44] Ibid.
The Tribunal is satisfied that the applicant cannot take steps to modify his behaviour so as to avoid a real chance of persecution in Pakistan as a modification would conflict with a characteristic that is fundamental to his identity or conscience.
Accordingly, the Tribunal finds that he has a well-founded fear of persecution for reason of him holding, or being imputed to hold, a religious belief contrary to that of the persecutors; him practicing his own religion contrary to the manner in which the persecutors consider it should be practiced and him being a member of a particular social group of Social Worker working with NGOs in Pakistan.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, and for the reasons set out above, the Tribunal accepts that if the applicant returns to Pakistan now or in the foreseeable future that there is a real chance he will face serious harm for reasons of him holding, or being imputed to hold, a religious belief contrary to that of the persecutors; him practicing his own religion contrary to the manner in which the persecutors consider it should be practiced and him being a member of a particular social group of Social Worker working with NGOs. The Tribunal accepts that he has a well-founded fear of persecution for reason of religion and member of a particular social group.
Conclusion: Complementary Protection
As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
Overall conclusion:
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Michael Hawkins
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Affairs and Trade (20 February 2019) us/publications/Documents/country-information-report-pakistan.pdf.

(2016). Eradicating polio in Pakistan: an analysis of the challenges and solutions to this security and health issue. Globalization and health, 12(1), 63.

< 27 November 2019, < suspicion-in-pakistan-s-polio-fight-1.156077>; Hussain, S. F., Boyle, P., Patel, P., & Sullivan, R.(2016). Eradicating polio in Pakistan: an analysis of the challenges and solutions to this security and health issue. Globalization and health, 12(1), 63.

[2020] AATA 1281

11 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Jurisdiction

Appeal