1713110 (Refugee)

1713110 (Refugee) [2021] AATA 2635 (31 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1713110

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

Statement made on 31 May 2021 at 10:49pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – race – Pashtun – political opinion – Loy Afghanistan movement – Pashtun Melat Party activist – separatist movement – Pashtun Tahafuz Movement – opposition to the Taliban – campaign against extremist madrassas – fear of kidnapping – fear of killing – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91R(3), 424AA
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 May 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 8 March 2017.
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.
CLAIMS AND EVIDENCE
The applicant made the following written claim in a statutory declaration:
I completed [schooling] from [a named] School. In December 2014, I started my tertiary education at [a named institution in] Mardan. In March 2015 whilst still doing my [degree] I joined the movement of Loy- Afghanistan seeking incorporation of the two states KPK and Baluchistan into motherland Afghanistan.
I joined the Pashton Melat Party Student Federation which endorses the formation of the Loy-Afghanistan based on historical and legal facts. In July 2016, I was appointed [to a position in] the Pashtun Melat Party. My main function included establishing links between students and youths with KPK, Baluchistan and Motherland Afghanistan.
In May 2015 a delegation of the Pashtun Melat Party went to Afghanistan. I represented the party as [a specified role]. Our party believes that the 1ST of Pakistan and the authorities in Islamabad are the major source of support of Taliban, Lashkar Taiba, Jamaat-ul-Ahrar and Haqani network to carry out terrorist activities.
The intention of the Pashtun Melat Party is to mobilise public opinion against the State of Pakistan and the Islamic extremist militants through civil uprising. Our organisation carried out its function through intellectuals such as students, lawyers and journalists.
The majority of lawyers in Mardan supported the Pashtun Melat Party, where as on the other side the intelligence service of Pakistan known as ISI target activists of our movement by encouraging suicide bombing or terrorist attacks against the members of our movement. On September 2016 members of Jamaat-ul-Ahrar killed [a number of] people in which my [named relative] was included.
The Jamaat-ul-Ahrar is functioning from Malakand agency, Mohmand tribal region dominated by Pashtons and they are an off-shoot of the Taliban militants group. Following the attacks in Mardan our party issued a memorandum stating that Jamaat-ul-Ahrar targets lawyers both in the region of Mardan, Baluchistan, and areas of Christian domination. As [a member] of the youth division of the Pashtun Melat Party I accompanied [senior members] to attend a conference in Kabul to draw strategies against the double standard of Pakistan, where on the one hand it claims fighting against terrorism to obtain international funding and on the other hand Pakistan authorities are supporting Islamic extremists and drug related transactions through militancy.
Following the attack by Jamaat-ul-Ahrar, my family which comprises of female and elderly members entered Afghanistan. But those in their earlier age could not enter Afghanistan as refugees for being seen as hostile by members of Northern Alliance and supporters of Ahmad Shah Masood groups who are mainly Tajeeks. I have lost contact with my family who are at a refugee camp either in Kunar or Khust province in motherland Afghanistan.
I do not recognise the state of Pakistan as legitimate Sovereign State as it occupies our two states which are historically part of Afghanistan. I have written substantial articles against the state of Pakistan and its support of Islamic extremism. Being an activist of Loy-Afghanistan Tahreek and youth [member] of the Pashtun Melat Party I cannot return to Pakistan because of my opposition against Jamaat-ul-Ahrar in Peshawar valley region.
The authorities in Pakistan mainly target activists who hold anti-establishment views that are seeking separation from the state of Pakistan. During my trip to Afghanistan our team was able to create a link between youths in KPK, Baluchistan and the motherland Afghanistan. Our main focus has been to draw the international community's attention towards Pakistan's hypocrisy and double standard. This has been done through electronic media.
I commenced working with the regional office of Loy Afghanistan, situated in [an Afghan location], my function has been to obtain video footage from [a named] Madrasa of [Leader A]. In April 2015, my function was to cover most of the gathering of [Leader A] an extremist who ran [this] Madrasa.
Our organisation focused on release of information through electronic media that demonstrated that the Madrasa's are the main source of developing extremist thoughts and support for terrorist groups. My role was to document extremist conduct within the Madrasa's and convey that information to organisations such as Loy Afghanistan and Baluchistan Liberation movement.
December 2014 was the turning point in our struggle in KIPK when we took a stand through the media that Pakistan Intelligence was behind the killing in schools. As a member of the youth wing of Loy Afghanistan, I actively participated in efforts to stop members of our Pashtun community from sending their children to extremist Madrasas, where they are brain washed and consequently trained as a suicide bomber.
In my writings through electronic media I highlighted that Madrasa Such Junior High are the breeding ground of terrorism for which ISI is providing finance. Following the suicide attack in Mardan, which resulted in the loss of my [named relative] who was [an occupation] and a senior member of the Pashton Melat Party and campaigner of the Loy Afghanistan movement, my family fled into Afghanistan.
I cannot return to Pakistan as I do not recognise the State of Pakistan. Furthermore, it has been revealed to ISI as to my involvement with the movement of Loy Afghanistan which is seeking incorporation of KPK and Baluchistan into Afghanistan.
AAT Hearing
The applicant was asked whether he knew everything that was in his protection visa application and that he knew it to be true and correct, and he said that he did and it was. It was put to him that the Tribunal received an email that morning and a bunch of papers as he walked into the hearing and was asked what they were. He claimed they were papers related to his case. He was advised that they needed to be accompanied by some covering brief or letter to explain their significance and they were returned to him until he provided this.
He was also told about a letter sent to him on 18 December requesting more information and he was asked if he received it. He claimed that he hadn’t, but his adviser stated that it was received and forwarded to him. He was told the nature of the information requested in the letter and he said that he received the letter – asked if he was providing that information today he said that he was and when asked if he had the information here, he claimed that he did. When asked where it was, he then asked what the information requested was. He was told that he had already been advised of the information and then said that he had given it to his lawyer. When asked, the adviser stated that she had given links to social media previously and that she had been instructed that the applicant had extended relatives in Afghanistan but he didn’t know where they were, or whether they were in camps or not and he had no documents that he could offer in support of this claim.
Asked if he had any photos or media reports of him attending any party meetings in Afghanistan with senior representatives that he claimed, he said he had them that they were in the computer belonging to the party but some members of the tribal agencies came and took them three months before he came to Australia. Asked about media or social media reports of his meetings in Afghanistan, he claimed that he shared these on social media and they were on social media. Asked if they showed him, with dates and that it was in Afghanistan, he claimed that it was in a meeting room and after the meeting they took photos.
It was put to him that the Tribunal had received a link to the social media sites but it wished some direction as to what it should be looking at. The adviser claimed the applicant had been posting on his own Facebook social media page at the address [applicant’s name variant] which he had been posting at regularly. The member asked again for the Facebook address and he said it was [applicant’s name variant] – asked what the photo looked like as there were a number of addresses using this name. he said he was wearing [specified clothes]. It was put to him that there were lots of people by this name and the Tribunal may need him to show him later what his site was.
The applicant claimed that if he returned to Pakistan he would be at risk of people from the Taliban, other villages’ parties and the intelligence agencies who would kill him. Asked why he would be killed, he claimed that his party protested and they asked for rights for the Pashtuns and were protesting against the kidnapping and killing of Pashtuns. This was initially the Pashtun Millat Party (PMP) and was now part of PTM.
Asked if he had any other claims, he stated that three party members had been killed and he had proof of this. Asked if he had any claims additional to what he had claimed, he said again that based on what happened he would be kidnapped and killed. He was again asked if he had any different claims and he stated that this was the only claim.
It was put to him that in his submission he had referred to errors in the interpreting in his DIBP interview without being specific. He claimed there were some and the interpreter didn’t understand. He was advised that if he wished this to be taken into account, he would have to provide post-hearing examples of exactly where this occurred.
He claimed that he was an active worker at the party and attended demonstrations, and was a [Subject 1] student (he never completed it as he came to Australia halfway through) – he was asked for a copy of his transcript. He was working for PTM and was told top differentiate when he was working for either party. He joined PMP in 2015 when studying at college and got membership through the district leader. He didn’t know when the party started. Asked where its head office was, he said it was in Peshawar – he lived around [distance] drive from there.
Asked if PMP ran in elections, he claimed it did. Asked which ones, he claimed it wanted to take part in 2018 but ISI banned it so the candidates took part as independents. Asked if they took part prior to 2018, he said they didn’t take part because they came into existence after the last election but before the 2018 election but were banned before it. The election before that was 2011 and the party was founded after that. Asked what level he was talking about, he claimed he was talking about provincial elections. He repeated that the members took part as independents – one was in the national, one was in the provincial.
Asked if they ran in the 2013 elections (he had said it was 2011), he again claimed that the election commission banned the party but they stood as independent candidates. He said they had no party symbol in time for the 2013 election and were banned before 2013. Asked if there were many reports about the party being banned in 2018, and he said there was a report from the commission and he was asked for a copy post-hearing.
He was a PMP worker and he took part in the 2018 election. Asked what he meant by taking part, he claimed that he wanted to be a candidate in the 2018 election but came to Australia in 2017 to escape. Asked if he had any evidence such as photos that would show him active as a member in Pakistan. He claimed he had given some documents but it was put to him that country information indicated that documents could be easily forged in Pakistan. The Tribunal was after evidence such as photos, social media records, media reports that could tie him to an active political role with PMP in Pakistan.
He claimed that he had some photos of him taking part in a protest but they vanished when the computer was taken. It was put to him that surely the photos would have been shared on PMP social media or his personal one rather than kept on the laptop. He claimed he would check with [a leader] of the party who might have some. It was put to him that he had already been asked for them in the letter.
He pointed to photos of him and he was asked where it was from. He said it was Australia. Asked about Pakistan, he repeated what he said previously. Asked how many people there were in his local branch of the PMP, he claimed it was about [number] people. His role was [an official] of the Student Federation – this meant he was [a member] of the student group. Asked whether he was with the Maydan group as well he said he was. Asked about the link, he claimed that there were [number] members but many more followers – he was a member. This was district level.
Asked if there was any social media or media announcements that would prove he was actually [in this role], and he claimed that there was a letter from the aprty in which it was mentioned. It was an official letter but wasn’t so big as to be covered by media. It was put to him that he was a [Subject 1] student and had a social media page, and was asked why he hadn’t put it up on his own social media site or on the Student’s federation site (or created one if there wasn’t already one).
He claimed that he hadn’t completed his [Subject 1] degree and that 7-10 years ago his Facebook ID/page had been blocked, and that media covered much bigger issues. Asked if he put it on his site and it was blocked subsequent to this, he claimed that he uploaded things like meetings, videos of protests. He agreed it was blocked. Asked what Facebook told him when he wrote to Facebook about his Facebook page being blocked, he claimed that he did this a few times and tried to change the password and his ID to no avail.
Asked if he had his correspondence with Facebook, given that when Facebook blocked a page they asked the person to contact them. He claimed that when he tried to log onto his Facebook he wouldn’t be allowed to. Someone told him he was blocked. Asked who told him this, he again claimed that he tried to log in but was told the information was incorrect. He was told the Tribunal understood this and was asked if he had been in contact with Facebook and he asked what contact.
He was asked about e-mail contact and he said no. Asked why he didn’t as this should be the first thing he did, he claimed that he tried to get in and when he couldn’t he created a new account. It was put to him that in the past some people had previously claimed that they had evidence but their account was blocked. There was a straightforward process when people’s accounts were blocked and that involved contacting Facebook.
If this had happened and there was some evidence that he contacted Facebook about a blocked account then the Tribunal may be able to lend some weight. However if there was just a claim with no evidence then the Tribunal may lend it no weight. Facebook is a company so they want to help their customers, but if there is a reason why they blocked the account they would tell the customer. He was asked why he never contacted Facebook, and he claimed that Facebook hadn’t blocked his account. It just said that he had changed his log-in when he hadn’t. He would have contacted Facebook before he came to Australia but he never knew he would need such evidence as he didn’t think he would ever apply for protection.
Asked why these groups were so focused on the applicant, he claimed that he was against the Taliban activities and telling the people about this. Between 2014-16 they were asking the government about people missing from PKP and in Waziristan and for those who were killed, who killed them and why they were killed. Asked why, if all the party was doing this, he was targeted in particular, he said he was aware of these things and being vocal about them and seeking justice.

Asked why he would be targeted given he was young and not a senior leader, and he claimed that the party leaders have security whereas people like him don’t. They go after young members and workers. Asked what happened to him, he claimed that he received threatening letters from the Taliban that he should stop talking about ISI funding for the Taliban. It was put to him that the photocopies of the letters he provided could have been produced by anybody so it was hard to give weight to them. Asked if he was ever physically targeted, he claimed that last year friends were killed and he wouldn’t lie about them. They would not have been able to provide evidence prior to their death if they were in his position.
After he came to Australia these close friends were killed and he may have been killed as well if he didn’t come to Australia. Asked about his claim in his application about detailing a story about activities going on in madrassas, he claimed that it was a story about a madrassa graduation ceremony where he learnt the mullah was telling the students to prepare for and go to jihad. He was telling them to commit suicide against the Americans in Afghanistan.
Asked what he did about this madrassa, such as writing a story into what was occurring, he claimed that he reported this to the party leader – that the people were linked to the Taliban and the children were being brainwashed. Asked again what he did about it, he claimed that he contacted the families of the children and told them that their children were being brainwashed. It was put to him that the claim said that his organisation concentrated on the use of social media to release information about the madrassas being the main source of radicalisation.
He claimed that he went to the press club to talk about what they heard and sought media coverage but the staff at the madrassa and ISI learnt what they were going to say and told the press club not to allow them to tell their story. They wanted to hold a press coverage to let the world know what was happening, but in Pakistan nobody is allowed to speak out against the ISI. He was going to hold the conference with his friends, along with [a leader] and district head of their party. Asked if he had mentioned this previously in his application or to the DIBP during his interview or to the Tribunal prior, he claimed that he said he was going to protest but they weren’t allowed, but they didn’t give him time to explain. It was put to him that he had a lot of time to prepare his written statement, and was asked if it was included there. He claimed that he had mentioned that he was not allowed to do the press conference. He was told that he could point out to the Tribunal later where he had mentioned this press conference.
Asked if he visited the madrassas or just wrote stories about them, he claimed that he was generally aware of what was happening in madrassas, but he was invited to an event. Asked how he did his story and whether he went into the madrassa, took videos and pictures, or what he did. He claimed that there were no restrictions about getting into madrassas. They were at the mosque and there was a graduation ceremony while they were there so they went and saw the speaker was not a local person and was from outside and that’s when they heard him saying these things.
Asked if this was the only time he went to the madrassa, he said he had been a few times before but didn’t have complete information. This ceremony was a big event. Asked how he was allowed into the graduation, he claimed that there were no restrictions and anyone can go there. Five friends went to the event (two locals and the applicant and two friends). The locals weren’t party members but their relatives were attending the ceremony and they said they would go with those two locals.
Once there, the applicant wasn’t allowed to take any video or photos as it isn’t allowed at these ceremonies in Pakistan. They heard what was said and wanted to report this at the press conference but weren’t allowed.
Asked about the two articles he had written and were uploaded onto social media sites that were critical of the Pakistani government, he said that he couldn’t remember the exact date. Asked if he had written many articles before or after these two, he said he had written many about issues such as terrorism. He said he wrote it on Facebook [and via other media] in Australia. He said he gave a speech that was video recorded on his phone and presented.
Asked about written articles, he repeated the social media sites he mentioned previously. Asked about publicly accessible media sites, he claimed that in Pakistan, PTM members aren’t allowed to publish things on public media sites. The Pakistan government, military or ISI don’t allow media to give them any coverage of their speeches or the like. Asked when PMP was disbanded, he claimed that in 2018 when they couldn’t take part in elections, PMP members joined PTM. Asked if there was coverage of the PMP disbandment, he claimed that the leader of the party wanted to tell the whole country but they weren’t allowed to be covered in the media. Asked if it gained media coverage outside of Pakistan, he claimed that PMP members joined PTM and there was coverage of PTM on social and other media. There was no coverage of the PMP disbandment.
He joined PTM [early when] it was established in 2018 – he joined it in Australia. Asked what his role was, he said he took part in protests. Asked about the number of members in Australia roughly, he claimed around 100 and around [number] in [City 1]. It was put to him that the protest in [City 1] appeared to be around [number] people which didn’t indicate many people in PMP. He said that people were busy but there were around [number] people. It was put to him that it appeared to be in [Location 1] and he said that it was covered by [Media Agency 1]. The reporter asked them questions for 2-3 minutes.
Asked when the Facebook page that he sent to the Tribunal was started, he said there were a few pages. It was put to him that he had sent a Facebook page to the Tribunal so he needed to explain its background. He claimed that there were different pages started by a number of PTM supporters in Australia. The administrator mentioned his name in three of them so he claimed that he sent one of them to the Tribunal.
Asked if he was named in any of the pages he had given the Tribunal, he said that he had liked three of them. He was again asked if he was named in any if them or if there were any photos of him, he said that there were pictures of him in there. It was put to him that he had to make out a case for himself. If he claimed that he appeared in social media pages he needed to provide copies and a submission that pointed it out and the relevance to the Tribunal. Simply sending the Tribunal a PTM Australia Facebook page didn’t mean anything to the Tribunal unless he explained its significance.
He claimed that these pages showed the gathering in [Location 1] and they shared pictures on these pages so PTM members in Pakistan could see what they were doing. He was asked why it was a problem for the Taliban or the ISI if there were ten people gathering in [Location 1] and why such groups would know or care that this was happening in [City 1]. He said even if it was that one person in Australia was equal to a thousand people in Pakistan as it brought the world’s attention to their issue.
Asked if PTM was illegal in Pakistan, he claimed that it was an independent political movement in Pakistan so it was not registered. Asked if it was banned or just worked illegally, he claimed that the government doesn’t consider it legal and they tried to ban or stop it. Asked if it was banned, he claimed that it was banned because they had so much evidence against the government that the government didn’t want it to operate.
If individuals declared they were members of PTM they were picked up by ISI. Asked when PTM was banned, he claimed that it was banned in 2018 after Masood was killed. The government tried to stop it after this. Asked if he knew PTM was banned when he joined it in Australia, he said that he did.
In his submission he had provided a Facebook page of the Pakhtun Millat Party (PMP) and asked if it was active, he claimed it was but most people had joined PTM now. He claimed he was too busy at work so hadn’t posted much the last few years. It was put to him that he had given Facebook sites for the PMP in his application and in a submission for the Tribunal and both had different addresses and was asked why this was the case. He claimed that there were two or three sites. Various sites had been blocked so they had to create new ones.
It was put to him that there was an entry on the PMP pages from January 2021 and September last year and he was asked why they were still posting on the page of a party that had been banned. He claimed there were some members still active who posted things. It was put to him that he had said that the leaders had left and the party was disbanded, not banned, so it was strange that people were still posting on it. He claimed that the chief executive had left Pakistan for another country so he or others may be posting.
It was put to him that he claimed in his submission that he received a highly confidential 1000- page document about a number of issues and that he had confidential information about the university and was disseminating this information. He agreed that he did this. Asked what the nature of the information was, he claimed that it was about the political party members (ex-PM, MPs, ministers; perhaps 100 people) such as their property assets and what elections they ran in and lost. It was put to him that their election results was not confidential, and he claimed that he had information about the assets of candidates that they had to declare but was kept secret.
Asked how he got hold of this information, he claimed that when [Friend A] was alive he received this and shared it. But then he was killed. He then shared this information with the Electoral Commissioner. Asked how [Friend A variant] got this confidential information, he claimed that he didn’t know but he was killed because he had this information. Asked where the information was, he claimed that he had a USB. Asked if he provided this to the media given he [had connections], he claimed that he had no access to media.
The member viewed this and it was put to him that the information appeared to be assets held by candidates that they would have had to declare. They appeared to be regular, not secret forms – whether they had other hidden assets was a different question but what he had given to the Tribunal appeared to be the official candidate forms. He was asked why he believed they were secret. He claimed the candidates hadn’t declared these assets to the Commission – he was asked who the actual declarations went to, as they were on an official form so they weren’t hidden.
He claimed that he had personally disclosed this information to the Commission as the Commission didn’t have the forms. It was put to him that he had presented to the Tribunal an official form that had been filled out. He was asked who these forms had gone to and that had subsequently known about the candidates’ assets, and he claimed the forms were filled out but not given to anyone as they would have had to have then paid tax on this. He then claimed that the forms were given to the Electoral Commission but not to NAB (like the ATO). It was put to him that he had told the Tribunal that he had provided this ‘secret’ information to the Commission, yet now he was saying that the Commission already had it but the issue was that the NAB didn’t.
It was put to him that this would have been a great story for [an activist and] student such as himself to promote – they could then personally force NAB to investigate. He was asked if they tried to give the information to any media outlet. He then said that he had no access to media but NAB already knew this and were investigating. Asked whether he had mentioned this in his protection visa application, he claimed that he hadn’t because he got this after the DIBP interview. He said the candidates didn’t want people to know. He was told he would be given more time to outline in detail how he got this information, and what the rules for declaration of assets for politicians in Pakistan is.
It was put to him that the information he gave was from 2014 and this pre-dated his 2017 interview, and he claimed that the list went from 2014-18. He was asked and said his friend was killed in 2017. It was put to him that he had claimed that he obtained this information about alleged corruption from [Friend A variant] who received and shared it, yet [Friend A variant] was killed in 2017 and there was information from 2018 included in what he gave the Tribunal.
He was told about s 91R(3) [now s 5J(6)] and it was put to him that the two articles (folios 72, 76) that he had put in his visa application that he claimed appeared on Afghanistan media ([in specified sites]) were dated [in] February 2017[1]. He arrived in Australia [in] February and applied for protection on 8 March 2017. The Tribunal was concerned that he had submitted an article that was critical of the Pakistani government and these were written between the time he arrived in Australia and when he claimed protection in Australia. He had no record of writing these type of articles prior to arriving in Australia or after his PV submission so there was a concern that he had done this solely for the purpose of establishing a refugee profile and it was not reflective of political beliefs that he actually held.
[1] They appear to be the same article published on two sites.
He claimed that he wrote these when he was in Pakistan but only published them once he felt safe in Australia. Asked why he didn’t publish them under a pseudonym, he claimed that the intelligence organisation was aware of his activities so even if he published it under a different name it would have made no difference. He thought for security reasons he would do it when he felt safe in Australia. Asked why, if this was the case, he only published two and had done no more after he submitted his PV application. He claimed that he had attended PTM protests and did these things when he felt he had time to take action.
It was also put to him under s 91R(3) that there was no evidence that he had taken part in any protests in Pakistan, and he had made no efforts to unblock his Facebook site that he claimed held the evidence of such attendance. The concern was that he had never been politically active with PMP or any other group in Pakistan. In Australia he had claimed to have joined PTM (a group he knew was banned in Pakistan) and attended some protests (albeit tiny ones) and the concern was that he had done this solely for the purpose of establishing a refugee profile, particularly as it came after his protection visa application was refused by DIBP.
He claimed he couldn’t establish PTM by himself, and he joined it when it became active. BBC, al-Jazeera are all aware of the kidnapping and killing of Pashtuns in Pakistan. He claimed that he didn’t attend protests in Australia just to improve his refugee claim.
He was also told about s 424AA and it was put to him that he was asked at hearing about his visit to the madrassa and he said that he attended the mosque and came across the graduation ceremony but that it was impossible to take photos or videos of the ceremony. At his DIBP interview, he claimed that he was videoing in the madrassa. Their friends recognised other friends with children in the madrassa and they were then able to get in there and take video. DIBP asked them where the video was, and he claimed that he gave it to PMP but he didn’t know what they did with it. He made no mention of a graduation ceremony that they attended. The concern was that he had given differing accounts and this could call into question the truthfulness of the claim.
He claimed that he mentioned in the interview that he attended the madrassa and attended a couple of times before. He claimed that he mentioned [Leader A] was the one giving the speech and then they began monitoring the activities of the madrassa to see what was happening. He was told that an issue was that he claimed that he couldn’t take photos or video to the Tribunal but he told DIBP that he had taken video and film. He claimed that the footage wasn’t made during the graduation as they weren’t allowed but they had made this footage during Fridays when the mullah was speaking – they would question those attending where the mullah was from and other things about him. During the graduation ceremony they didn’t film but on the second and third visit to the madrassa he created the footage.
Asked how he made the footage when the mullah was speaking as he would likely have stopped them from doing this, he claimed that it was not done openly. He was discretely using the mobile phone and giving it to the party. Asked if he had a copy as he had done it on his phone, he claimed that he now had a different phone. Asked if he downloaded/transferred the video on his new phone, he said that he hadn’t done this as he had had a few phones given they broke.
It was put to him that the Tribunal had concerns that the video of the madrassa wasn’t available because he had changed phones several times, the laptop with other information was taken by authorities, and photos were on a Facebook page that was blocked. The Tribunal was concerned that these were excuses that were created top explain the fact that he had no supporting evidence for his claims and that none of the events that he had described actually occurred.
He claimed that he provided a party membership card and his attendance at the protest in Australia. He claimed the Tribunal was focusing on information that he didn’t have evidence for. He had spoken about [Friend B] in his first interview but was killed after that. It was put to him that his mother had been refused a visa to Australia and he was asked why, and he claimed that it was for security reasons as her son had applied for protection. Asked if he had a copy of her visitor visa application, he said that he did and the Tribunal asked for him top provide it with a copy of the document.
He claimed that his claim was truthful and if it wasn’t he would have applied for a partner visa as he married an Australian and had [children]. He claimed that 500 Pashtuns had been kidnapped in the last six months and he had information about the situation from the last two years. The PTM party had evidence about this. He would also be killed if he returned to Pakistan. He could not relocate as friends had been killed in Islamabad. It was put to him that relocation should be quite straightforward according to country information – there was a very large population and it was easy to remain anonymous.
The witness was sought but the Tribunal was told that he had been made to wait outside the building because of the closure of the office. The applicant was told that the Tribunal had the statutory declaration from the witness and had no questions for him. The applicant was then asked whether he wanted the witness to attend and he asked for this to occur. The front office was called but nobody answered. The applicant was then advised that the Tribunal would reconvene at a later date just to hear from the witness. The applicant said that the Tribunal could then question the witness, and the Tribunal then said that there was nothing in his statement that elicited any questions from the Tribunal. The applicant then said that if there were no questions from the Tribunal then there was no need for the Tribunal to call the witness.
The applicant was then told that post-hearing that he would need to provide a timeline for all the social media sites that he claimed to have politically active on (including his personal ones), such as when they were established, when they were stopped/blocked, what their relationship were to the applicant. A lot of information had been provided but there was no explanation of, or context to it. He said that he would. He was also asked to answer the questions he was asked in the letter. He was also told that any documentary evidence that he provided he need to provide an explanation about their relevance to him and his claim.

Simply saying that he had a friend called [Friend B] who was killed didn’t establish to the Tribunal’s satisfaction that this was the case or, if someone of this name had been killed whether [Friend B] was his friend. Similarly, simply providing a photo of some people at a meeting that he claimed was in Afghanistan wasn’t persuasive as he needed to provide supporting statements that explained things to the Tribunal. He said it was hard to prove how someone was a friend. It was put to him that if he had told the Tribunal a range of things that it didn’t believe were true then it was unlikely it would believe someone was a friend if he claimed.
Second AAT hearing
At the end of the introductory session the applicant said that he wished to raise an issue with the Tribunal. He was invited to do so and he claimed that he contacted his brother about two months ago to send him some evidence but he had lost contact with his brother since, so was unable to provide any. He had been asked at the last interview to find information about his social activity and some evidence but as he lost contact with his brother he could not provide this.
Asked what evidence he had asked his brother to source, he claimed that he wanted his brother to send him his party membership card as well as photos of the applicant from the border in Afghanistan. He said again that he was unable to provide these because due to the COVID 19 lockdown his brother couldn’t visit the party members or visit the party office because it was closed down.
His brother told him that he had tried to contact his classmates to get some photos but they wanted to know where the applicant was and why they should provide them to him (the brother). They said they were looking for his brother and wanted to give them to him the photos and university documents in person. He said that there was COVID 19 lockdown in Pakistan but it was completely locked down in Mardan, Peshawar and Nawghar. They couldn’t access any documents as a result. His area (Mardan) was a hot spot and they were totally locked down.
He also claimed that had [an injury] last month so had not taken part in the PTM social activities he normally would. He confirmed that he was a member of PTM. He also said that the Taliban had broken the car windows of vehicles in Islamabad. Asked if this had anything to do with him, he claimed that the Taliban in Islamabad had launched attacks in Islamabad and a friend of his was injured as a result. The Tehrik La Baik had launched an attack against the government.
Asked what this had to do with the applicant and whether he was making a claim or just recounting an event that occurred, he claimed that he was just giving further information about the security situation in Pakistan and wanted to tell the Tribunal about his friend. Aske if there was any evidence of this, he claimed that there was and he could download this. Asked if this would show him that is friend was injured, he claimed that it would show how many people were injured. It was put to him that the event needed to relate to his claim and he said that he wanted to say that this may occur to him as a member of his party was injured in this attack.
Asked about the population of Pakistan, he said it was 200 million. He was asked why he thought something would happen to him in a country of 200 million people given most people just got on with their lives, the likelihood of him being involved in an attack would appear to be minimal. He claimed the problem was specific to some people in Pakistan. Asked if he wanted to raise anything he had not previously raised regarding his political profile, he claimed that Pashtun-related tribal people face many problems because Pashtun are the minority and they face problems, particularly the PTM. They have lost many people.
He claimed the religious leaders knew him and he would face many problems on his return. He claimed that he had lost four of his friends and three injured in Pakistan and this would happen to him. This included his [Friend A]. Asked if he had any evidence that [Friend A] was his friend, such as photos or the like. He said he was his friend and he asked his brother to go to [Friend A’s] house to gather photos. Asked if he was close to [Friend A’s] parents as well. He claimed that he didn’t have contact with [Friend A’s] father but he was friends with him. Asked why he couldn’t have contacted [Friend A’s] father to get the photos and evidence rather than send his brother around to collect them, he claimed that [Friend A’s] father was uneducated and couldn’t use the internet so he couldn’t ask him. [Friend A’s] father also didn’t want to use things such as internet so he wouldn’t draw attention to himself. Asked if he had any evidence that would indicate he was in a friendship relationship with [Friend A]. He said it was available in Pakistan but he didn’t have it.
Asked when he first applied for protection, the applicant said that it was 2017. It was put to him that he had four years to provide such evidence and was asked why the Tribunal should believe that it was available in Pakistan. He reiterated that they couldn’t contact [Friend A’s] father because he had no internet or telephone to contact with him. But he had photo and video with [Friend A] in Pakistan.
The applicant was asked what political groups he was a member of in Pakistan and he said that he was with the Pakhtun Student Federation (PSF). This was the only group that he was a member of. He had provided an ID card to that effect. Asked if this was the only political organisation he was a member of at university, he claimed that he was a member of the PSF and also of PTM. He then clarified with the interpreter that the PSF was a student federation/union not a political party. He was a member of the PMP (he clarified that PTM came later, after he was in Australia).
He said that he had a PMP card at university and he had provided it previously to DIBP. It was put to him that the card was hand-written card that could have been written by anyone. It was all that he had. He said that everything in Pakistan and Afghanistan was handwritten. It was put to him that country information indicated that fraudulent documents were rife in Pakistan so it was difficult to give weight to hand-written documents. He claimed that everything he had submitted was true – they were issued to hundreds of thousands of others but were slowly trying to computerise.
It was put to him that country information indicated the PSF was linked to the Awami National party (ANP). He claimed that he joined the PSF and the PMP but not the ANP. He claimed the PMP was newly established and it seemed very nice so he joined them but before that he joined the PSF. Asked if he had any evidence that he could provide that would indicate he undertook activities with PMP at university other than the photocopy of the card that he provided, he said that he didn’t have anything other than the PSF student card. He then said that he had a letter and other things other than the student card and he had provided these previously.
It was put to him that he had claimed to have worked with Loy Afghanistan in Pakistan. Some members live in Pakistan and Afghanistan. It was put to him that he had worked with a particular group and he said it was the Loy Afghanistan Moment. Asked where they were located, he said that they were in Afghanistan, Pakistan and Australia. It was put to him that in a previous statement he had claimed to have worked with a particular group of Loy in a part of Afghanistan and was asked where that was.
He claimed that he worked with Loy in Jalalabad in Afghanistan and Peshawar and Mardan in Pakistan. Asked why he was in Jalalabad, he claimed that there were some discussions with Loy there. It was put to him that he had sent some photos of a meeting and was asked if this was Jalalabad, and he said that he had sent some meetings. It was put to him that the photo didn’t show him, nor did it show where it was held, and the member could only see the letters ANP (Awami national Party) in the background so it didn’t prove that he was at a meeting in Afghanistan.
He claimed that he had sent some photos but they didn’t always show the background and some of what he had sent were from Pakistan and some were from Afghanistan. It was put to him that part of the problem was that each time he sent some documents or photos her was also asked to send a written submission explaining what they were and how they related to his claim, yet he never did and just sent photos or documents. He claimed he could explain and may have been his mistake not to provide some written explanations. He was advised that he had already been given the chance to provide written explanations previously. He claimed that he had provided information but could explain now. He was told that he would be given the opportunity after the hearing.
Asked why they held the meeting in Jalalabad given he claimed that he worked with Loy in [another] Province. He said that he went to Jalalabad, Peshawar and Mardan for talks with Loy. Asked if he went to [the specified Afghan location], he claimed that it was a long time ago and he couldn’t remember everything but that he attended meetings in the places he said. He said that he couldn’t remember the dates and times of everything he had done but he had gone to the cities he mentioned. Asked if Jalalabad was the only city in Afghanistan he went to, he said that he had gone to other cities as well.
Asked to confirm that he was in contact with his family members in Pakistan, he said that he was in contact with his mother only. It was put to him that he had claimed he asked his brother to go around to [Friend A’s] house to get documents so he must be in contact with his brother and he agreed that he was in contact in order to get these documents. It was put to him that he had previously said that his siblings were in hiding and he had no contact with them – he was asked to confirm that he was now saying he was in contact.
He said that he currently was in contact with his brother and his mother. He began this around two to three months ago. Asked if it was since the last hearing, he said that whatever he had said previously was true. He was asked to confirm that he had no contact with them for four years leading up to the last hearing but that he had now. He agreed that he now had contact and was asked when this contact began and he claimed that it was after the last hearing. His mother gave him the contact. It was put to him that it was quite strange that he had no contact with his brother who was in hiding until the end of the last hearing but yet now had contact with him.
He claimed that sometimes they had no relationship but then did. He had previously tried to contact him with no luck but was able to do so through his mother and he was able to provide documents. It was put to him that his brother was in hiding because he was allegedly in fear of being killed and yet he contacted him to get some documents from [Friend A’s] house. He said that the situation in Australia couldn’t be compared to Australia and that sometimes he had to try to get information.
The witness was then brought in. The applicant said that he was happy to listen to the testimony in English. Asked why he needed the interpreter in the first place, he claimed that it was for when the discussion went on for a long time. The interpreter was asked to remain in case there was any further need. Asked what he wanted to say, the witness said that the applicant was involved with the PMP before the ANP then the PMP. Asked when he was with the ANP, he said that he believed it was 2013. The applicant twice tried to interrupt at this stage and was told several times to say nothing until the Tribunal was finished with the witness.
The witness said that the applicant was with the ANP and when asked how he knew the applicant was in the NAP and he said the applicant had told him this was the case. He claimed that no Pashtun in Pakistan recognised the state of Pakistan and then began to speak about the history of the region but was asked to stick to the applicant’s claims. Asked what the witness knew of the applicant’s political activities, and he said his wife told him that they should stop the applicant from doing his political activities.
He agreed that he was married to the applicant’s sister and he was asked what he knew of the applicant’s family situation in Pakistan (prior to lockdown). He claimed that he had no idea as he had [number] children and was very busy. It was put to him that it was strange that his wife would talk about the applicant’s political activities but he would have no idea whatsoever of what his mother-in-law or his in-laws were doing. Given that his wife claimed that her brother was in such danger in Pakistan for his political activities, and that no Pashtun accepted the state of Pakistan it was extraordinary that the witness had no knowledge of, or had ever talked about the situation facing his wife’s family in Pakistan at any stage during the preceding four years.
Asked what he knew of the applicant’s family. He said they had [specified siblings] and that apart from the applicant he had no knowledge of the other siblings whatsoever. He claimed that any politically active person in Pakistan was in immediate danger and that Pakistan was a terrorist state built by the United States and the UK and they brought in terrorist Muslims from India. It was put to him that the Tribunal wished to know about the applicant’s family in Pakistan. He said that he didn’t know about them first-hand.
He claimed the applicant was also active in Loy Afghanistan in Australia and had been in Pakistan also. He said that he was a social media activist for them in Pakistan – asked what social media the applicant was active on, he claimed that it was mostly Facebook. He had travelled into Afghanistan because his wife told him but he didn’t know when or where. Asked what he did with the Loy movement, he said that he spread knowledge and incited the people. He didn’t know who he was with or where he went. The applicant was from near Jalalabad in Afghanistan.
It was put to the applicant that the reason he may have travelled to Afghanistan was to visit family rather than attend a Loy meeting. The visit could have been social rather than political. He claimed that this was not the reason. The witness was asked if he wanted to add anything to the written statement he had made previously, and he claimed that the applicant had tried to destabilise Pakistan through social media for example. The applicant claimed he had been threatened by the Pakistani government in Australia and was asked if he had made a complaint to the police regarding this – he said that he had not. He claimed that the applicant had attended demonstrations and it had appeared in the media and was on Facebook – he was told that he could provide this post-hearing but that there needed to be an explanation attached to it. If he had things additional to what had been provided he could do so post-hearing.
Asked about his Facebook site he said that he had a profile that was active and was asked to send a link to the Tribunal given there were quite a few pages with [his name]. He said that the last two months he hadn’t been active because of his [injury]. He was also afraid of being sent back because he had submitted his documents and not been accepted. He said that his siblings weren’t really political but had their own personal problems – he was more focused on contacting his mother. Asked when his brother stopped being in hiding he said the last few months, since the last hearing.
He was asked what had changed given he had previously said that his brother was allegedly in fear of his life and was therefore in hiding but now wasn’t. He had also been asked to provide some documentary evidence previously regarding his family being in camps in Afghanistan but had failed to provide this, or even answer the request. There was a concern that perhaps his family had never been in hiding. He had also been given every opportunity to explain the range of screen shots and photos through a written statement containing a coherent argument and yet he had never done so. It didn’t give the Tribunal much confidence that he was trying to convince the Tribunal as to his case. Claims that his computer was stolen and his Facebook site blocked at convenient times raised concerns in the Tribunal’s mind. In addition his brother was in hiding and then his brother was out of hiding.
It was put to him that in a country of 200 million people, a person with no political profile who was returned to Pakistan was unlikely to come to the attention of the Pakistani authorities simply because of his ethnicity. He claimed that the Pakistani government only needed to kill one person such as him to scare others. He was told that he could try to find country information that indicated individuals with his profile who were returned to Pakistan were harmed or killed and this would strengthen his claim. He said that Pakistan was not like Australia. He was again advised that he should provide a coherent, written submission that would address the concerns the Tribunal had with references to support his claims. He was given additional time to provide a post-hearing response and said that he would try.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a visitor’s visa [in] February 2017 and applied for protection on 8 March 2017. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The applicant is [an age] year-old male from Pakistan who has married since claiming protection in Australia. He claimed that if he returned to Pakistan he would be kidnapped and killed by the Taliban, other political parties and Pakistani intelligence agencies because he protested and asked for Pashtun rights first as a member of PMP then PTM.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I took into account his claim in his pre-hearing submission that there had been ‘issues with the interpreter used at my immigration interview on 24 April 2017’ that affected his ability to give evidence at interview. He was asked to be more specific in a post-hearing submission so the Tribunal had an idea of what those issues were. No such submission was provided and therefore the Tribunal lends little weight to his claim that there were issues with the interpreter at the DIBP interview.
Overall, I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely reliable, credible or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Provision of Supporting Evidence
The applicant was advised at the start of the first hearing and at the end of the second hearing that a range of documents that were provided to the member at, and after the hearings that he claimed were relevant to the case would need to be accompanied by some covering letter that explained their significance and relevance to his case. At the end of the first hearing he was told that he should provide a timeline for all the social media sites that he was involved with.
He undertook to do this however no such covering letter, timeline or explanation was ever provided. After the second hearing he was also given the direction to provide an explanatory statement regarding the various photos and screenshots and assorted pieces of evidence that he had submitted electronically yet he again failed to do so, nor did he answer a follow-up email request for the submission. The number of electronic documents, including photos and screenshots of photos and media articles totalled well over 200 individual attachments. None of it was referenced, some of it was duplicated and most of the pieces of evidence’s relevance was uncertain.

This left the Tribunal to make sense of the evidence that was presented without the benefit of a written explanation as to its provenance, or relevance to each of the claims. After reviewing the evidence made available to it by the applicant, the Tribunal was satisfied that it was not of sufficient weight either individually or cumulatively to overcome the range of concerns regarding the applicant’s claims. Some of it will be referred to below however given the volume of it, only those elements most relevant will be referred to.
Membership of Political Group(s)

100. I do not accept that the applicant is, was or would be perceived to be a member of Loy Afghanistan, PMP or PTM. This relies nearly entirely on his oral evidence and, as I outline below I have found that his accounts in the main are inconsistent or are implausible. Where he has provided documentary, social media or other evidence it does not identify him as being involved in a political party in the way that he claimed, or its relevance is difficult to ascertain. He was given several opportunities to provide a coherent written argument that used the range of evidence he provided in order to assist the Tribunal to make sense of it, yet he failed to do so.
101. I do not accept that the applicant was active with, let alone a member of Loy Afghanistan. To begin with, he has provided no compelling evidence that this was the case. He has provided photos of what he claimed were meetings but there is nothing that would indicate that he was in attendance, they were held in Afghanistan, nor that the meeting had anything to do with Loy Afghanistan. Indeed, it appears that the acronym ANP appears in the background in one of the photos which is inconsistent with his claim that it was part of a Loy Afghanistan meeting.
102. He also claimed in a March 2017 statutory declaration (folio 27) that he was working with the regional office of Loy Afghanistan in [a location] but when asked at the second hearing where the group in Afghanistan that he worked with was located, he never mentioned [that location]. Nor did he say that he ever went there – I do not accept that this was because it was a long time ago and that he couldn’t remember everything.
103. The applicant claimed variously that he had been to Kabul and other cities in Afghanistan, however the only evidence that he provided in support of this claim was a screen shot of a place marker saying the person was at the Pakistan-Afghanistan border, photos of the applicant in what looked like Afghanistan with no date or explanation attached, and another of a photo of a nature scene that said it was from January 2017 from Jalalabad in Afghanistan. While it is possible that he may have travelled elsewhere in Afghanistan for private purposes, in the absence of any supporting evidence I am not satisfied that he was politically active while in Afghanistan.
104. I accept that the applicant has been to, or near Jalalabad, however I do not accept that it was for the purpose of a Loy Afghanistan political meeting. His [relative] is from Afghanistan and from near Jalalabad so, given I have not accepted that the applicant was ever involved with Loy Afghanistan I am satisfied that his trip to Jalalabad could be explained as a family or social visit.
105. Because I do not accept that he was ever a member of Loy I do not accept that he ever took part in programs to stop people from sending their children to extremist madrassas. I also took into account the witness’s testimony that the applicant was with Loy in Afghanistan. He had no first-hand knowledge of this and repeated what he had been told by his wife (the applicant’s sister). I do not accept that the applicant’s sister (resident in Australia) is an objective witness or has first-hand knowledge of the applicant’s political activities. The witness was unable to when or where the applicant travelled to Afghanistan.
106. I do not accept that the applicant was a member of the ANP/PMP or PTM. I accept that the applicant was a member of the Pukhtun Student’s Federation (PSF) at his university for one year in 2016 based on a photograph of a student ID card he provided in one of his submissions that said he was a [student]. Notwithstanding the fact that country information[2] indicates that PSF is the allied student wing of the Awami National Party (ANP), I am satisfied that PSF was like the student union and was not an indication of political membership of the ANP. I have taken into account the witness’s statement that the applicant was a member of the ANP but lend it little weight. He claimed the applicant had told him this, yet the applicant himself denied ever having been a member of the ANP at interview.
[2] Latest News on pakhtun students federation - ANI News - Asia’s Premier News Agency, accessed 20 March 2021.
107. I do not accept that the applicant was ever a youth [member] of PMP. He claimed in his pre-hearing submission that he joined the Pashtun Milat Party Student Federation while he was at university, and also provided a photocopy of what he claimed was a PMP membership card (folios 54-55), however there is no copy of the original and the entries on the card were handwritten so I am unable to give much weight to its authenticity. On a pre-hearing electronic submission there are photos of what appears to be the applicant’s face on a sheet of paper written in English with the words Pakhtun Millat Party at the top and some writings on paper with a PMP letterhead. No explanation was offered as to their relevance or the date or circumstances as to when they were taken, and any one of them could have been easily produced on any home computer so I am not able to lend them much weight in determining the truthfulness of his claim to have been active with PMP in Pakistan or Afghanistan.
108. I am also conscious of country information that says that documentation fraud for official documents not issued by a competent central authority such as NADRA is widespread, so caution is warranted in lending much weight to a photocopy of a PMP membership card or his face on sheets of paper with PMP written below as evidence of his membership.
109. I am also unable to lend much weight to the letters he claimed were sent to him by the Taliban threatening him for his activities on campus (folio 50-53). They were photocopies of handwritten notes that could have been produced on any home computer. The same also goes for the letter from PMP (folio 56) to the applicant saying that they were concerned about his safety due to his social media campaign against religious groups, that he should lay low and leave the country if possible. The letter was written in poor English rather than a local language, and while they say that a letter was written because they couldn’t contact him by phone, if the intent was to warn him about his safety it makes little sense that they would use ‘snail mail’ to do so rather than simply drive to his house to tell him or his parents given they had his address.
110. Given his stated role within the groups as an activist it is strange that there is no photographic or social media evidence of such activities. His claim of a series of events that precluded his access to such evidence lacks credibility. Any one of the claims would be rightfully viewed with suspicion – the combination of them makes the claim entirely implausible. He claimed that there were photos of them at a protest but that they were only on a computer that was taken. It seems strange that such photos were simply held on a computer and not shared on social media pages. The applicant claimed that he would check with the [leader] of the party but no further reference to how he went in this regard was conveyed to the Tribunal post-hearing.
111. He also claimed that he had photos and videos of him at protests and had uploaded them onto his Facebook page but this site had somehow been blocked so he could not produce them. He then just started a new page afresh. I do not accept this to be the case given the lack of effort to find out why or how he had been blocked. He made no effort to contact Facebook to fix the problem which lacks credibility for any regular Facebook user, let alone one who was allegedly a political activist and [Subject 1] student.
112. The third incident that he claimed stopped him from providing evidence in support of his claim related to his mobile phone. He claimed that he had taken incriminating videos of a radical mullah in a madrassa in Pakistan, and then given that video footage to the Party. He never downloaded it on any of his devices and he could not retrieve it because he had had several phones, some of which had been broken. The cumulative effect of being unable to provide any evidence of his activities because of the cumulative effects of a stolen laptop, broken mobile phone and blocked Facebook account is so implausible that I find it has been fabricated as a way of explaining the absence of any video or photographic evidence to support his claim.
113. Because I do not accept that the applicant was ever a political activist in any of these groups in Pakistan, it follows that he never received a 1000-page dossier of information about politicians’ hidden assets from his friend [Friend A variant] who was subsequently killed because of it. Nor do I accept that such information would have been confidential information to begin with, given what he claimed [Friend A variant] provided appeared to be the kind of information displayed on a publicly accessible Pakistani Electoral Commission website that listed candidates’ assets and liabilities.[3]
[3] ECP - Election Commission of Pakistan, accessed 17 March 2021
114. Not only does it make no sense that [Friend A variant] would hand these documents to the applicant when they were available on the website, the applicant’s claim that the assets were declared but hidden from the Pakistani tax office. If they were in the public domain it lacks credibility that the tax department wouldn’t also be aware of them. I also note that from a brief examination of what the applicant provided the Tribunal at least some were from 2018 which is inconsistent with the applicant’s claim that [Friend A variant] was killed in 2017 given the applicant was allegedly handed these documents by [Friend A variant]. Because I do not accept that [Friend A variant] provided the applicant with such documents it follows that he was not killed because of them and neither are [Friend A variant’s] alleged killers looking for the applicant for the same reason.
115. It also follows that he wasn’t tasked to cover the gatherings of [Leader A], a radical mullah, to document the extremist conduct in madrassas and to convey that information to Loy Afghanistan and the Baluchistan Liberation Movement. This finding is further strengthened by the absence of any evidence that he has done this. Despite him claiming in his protection visa statement that his ‘function has been to obtain video footage from [the named] Madrasa of [Leader A]’ and that his ‘role was to document extremist conduct within madrasas and convey that information to organisations such as Loy Afghanistan and Baluchistan Liberation Movement’, he has not provided any evidence to support this.
116. I have already found that his claims that the evidence was in a computer that was taken, or on a Facebook site that he had allegedly been blocked from accessing to have been fabricated. I also note that he claimed his organisation ‘focused on release of information through electronic media that demonstrated that the madrasa are the main source of developing extremist thoughts and support for terrorist groups.’ yet he offered no evidence that the organisations had used his information gathering to mount this argument on electronic or print media. This absence of any articles is inconsistent with what he claimed the organisations’ focus was.
117. Because I do not accept that the applicant is or ever was a member of the PMP it also follows that he never took part in any protests organised by the PMP, or would be imputed with membership of PMP on return to Pakistan.
Profile as a Social Media Activist
118. I do not accept that the applicant has been an active presence on social media in Pakistan espousing an anti-Pakistani, or pro-Pashtun line of argument as he claimed. He refers to ‘my writings through electronic media’ that he claimed highlighted the use of a madrasa as a terrorist breeding ground, and his claim that ‘I have written substantial articles against the state of Pakistan and its support of Islamic extremism’, yet the only evidence he presented was one article critical of the Pakistani government hosted on [specified sites] (both Afghan-based sites).
119. I also note that not only did he only write one article (published on two sites) it was published after the time the applicant arrived in Australia and before he applied for protection. I do not accept that he only wrote it because he felt safe once in Australia, given he has written no more since he submitted his protection visa application. I do not accept that he stopped because he decided to attend protests instead, given one doesn’t preclude the other. I am also not satisfied that he only wrote in Australia because he felt safe, given he could at any time have written under a pseudonym – I do not accept that he didn’t do so because Pakistani intelligence were aware of his activities, given I have found that he had not undertaken any political activities.
120. Given that the applicant has no demonstrated history of social media activism in Pakistan, I am satisfied that he produced this article solely in order to present as evidence to the Australian government. As I advised the applicant during the hearing, s.5J(6) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
121. The same applies to his protest and social media activity in Australia. As I noted above the applicant has not provided any evidence that he attended any demonstrations in Pakistan in support of Pashtun causes, and his attendance at protests in Australia came after his protection visa refusal. He has provided screenshots from mobile phone(s) and what appear to be social media sites related to PTM or Loy Afghanistan of a demonstration in [City 1] and one [at another location]. They are very small gatherings, it is not possible to see if he is present at these, and he has not provided any visual or written indication that he was present or where he could be seen.
122. I accept that he did attend one small protest in [Location 1] where he was interviewed by [Media Agency 1]. Given that he was an unsuccessful protection visa applicant at this stage and the conduct of any interview is a voluntary activity I am satisfied that the applicant could easily have avoided doing such an interview and his willingness to do so was reflective of a willingness to create a profile for himself. That having been said, it is not apparent whether he was identified by name in the interview, or what he said as he has provided no translation of the interview itself. He provided a screenshot of what appears to be a still of him at the protest with the number of comments made on the site circled, however no indication of what the comments related to, or where they were from.
123. All of the protests that he claimed to have attended and has provided evidence for were after he had had his application for protection refused by the Department. Given his lack of a political profile in Pakistan or attendance at demonstrations previously, as well as the timing of his anti-Pakistan article noted above, I am satisfied that he attended the demonstration(s) solely in order to present as evidence to the Australian government. As I advised the applicant during the hearing, s.5J(6) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
124. I have also examined the link to the applicant’s Facebook page he provided. There are items critical of the government on the site amongst a range of other material. I also note that the earliest entry is April 2018, after his protection visa application was refused by DIBP. I am satisfied that because of the particular timing of this social media page being established it is not evidence of true political activism but rather a further example of his willingness to try to establish a refugee profile.
125. Although I have serious concerns regarding the timing of his online activity I have nevertheless taken it into account for the purpose of assessing his claim for protection. Regardless of this social media presence, looking at the totality of his actions I am not satisfied that the applicant is a genuine Pashtun political activist, but rather he has been selectively active in an attempt to establish a refugee profile in Australia. His single article in online media was done after he submitted a protection visa application and his attendance at protests and postings on a Facebook page followed his initial protection visa rejection.
126. I am satisfied that his claims to have had his laptop stolen and his blocked Facebook account with photos of his political activity in Pakistan blocked were fabricated in order to explain his lack of supporting evidence relating to political activity in Pakistan. I am satisfied that the applicant has deliberately sought to create a profile as a political activist by attempting to create an activist profile in Australia and manufacturing explanations for the absence of a profile in Pakistan. Because I do not accept that his political activism in Australia is genuine I do not accept that he would become politically active on return to Pakistan or be imputed as a political activist.
127. I note country information that indicates that those who post articles on social media critical of armed groups or the security forces face a moderate risk of official discrimination and societal violence, and that there are unconfirmed reports that Pakistani authorities have traced people through their images on social media and detained or shamed them for breaching a 2016 ‘Cyber-Crimes’ Act.[4]. I have also taken into account some country information provided by the applicant that indicated a journalist/blogger critical of the army and the intelligence services had been murdered in Islamabad.
[4] DFAT Country Information Report – Pakistan, 20 February 2019, p 49.
128. I note however, that the journalist/blogger in question enjoyed a significant profile as a critic in the on-line sphere, whereas I am satisfied that the applicant has no real profile. In a country of more than 210 million people, the sheer volume of social media inputs that take place on a daily basis makes it very difficult to keep track of what is uploaded. I am satisfied that given the lack of a pre-existing profile in Pakistan that may have highlighted him to the authorities attention, the likelihood of the applicant coming to the attention of the Pakistani authorities for his post-departure social media activity or of the Pakistani authorities being interested in him even if they did become aware, He was asked to provide country information that indicated that individuals with his profile who had been returned to Pakistan were harmed or killed however none was forthcoming. I am not satisfied that there is a real chance that he would face serious harm on return to Pakistan because of his article and social media inputs.
Other Issues
129. The applicant’s [relative] provided a written statement in support of the applicant’s claim (in the form of an unwitnessed statutory declaration) and came to the first hearing. Owing to the lateness of that hearing he was asked to wait outside the building and never got to present his testimony. The Tribunal invited the applicant to a second hearing and the witness was given the opportunity to present evidence. The witness has no first-hand knowledge of the applicant’s activities in Pakistan or Afghanistan and said that he relied entirely on what his wife (the applicant’s sister) told him. He claimed that they did not discuss much in detail and claimed not to even know anything about the whereabouts or status of any of his wife’s family in Pakistan which strikes the Tribunal as completely implausible normally, let alone during the global pandemic that COVID represents and the lockdowns in parts of Pakistan in which some of his in-laws apparently live.

130. As a consequence I lend his evidence little weight. He claimed the applicant was a member of the ANP which the applicant himself denied, he claimed not to know anything at all about [the applicant’s family] in Pakistan. Although he claimed to be busy and that he never discussed this at all with his wife, given the current COVID situation it lacks credibility that he would not have any knowledge whatsoever as to how his wife’s family were faring in Pakistan.
131. Although not directly claimed in his protection visa application outside of his political activity on its behalf, I will address the issue of his Pashtun ethnicity for completeness’ sake. I do not accept that there is a real chance that the applicant will face serious harm on the basis of his Pashtun ethnicity. Country information[5] indicates that Pashtuns in Pashtun-majority areas face a low risk of official discrimination. I note that the applicant was being educated at the tertiary level at the time he left and was able to travel with his mother to [another country] and willingly returned to Pakistan without trouble..
[5] DFAT Country Report, op cit, p 25.
132. I do not accept that the applicant’s [named relative] was a senior member of the PMP or the Loy Afghanistan movement and was killed in a suicide attack and that the applicant’s family has had to flee Pakistan or that his mother has had to move within Pakistan and received several death threats. He has provided no evidence that would support the claim that [this relative] was active in either movement or that it was [this relative] that was killed in a suicide attack. I note that this relies entirely on his oral evidence which I have found lacks credibility, and that his story has changed several times regarding his family.
133. In his protection visa application for example, he simply said that the women and elderly member of his family his family fled into Afghanistan into a refugee camp in Kunar or Khost provinces, but he had lost contact with them, while the younger family members were in Pakistan. Prior to his AAT hearing, he was asked to provide evidence that would indicate the date on which the family members entered the refugee camp he claimed the family entered in Pakistan but he failed to do so.
134. After he was asked for this information, he then claimed that [specified siblings] and his mother were in hiding in Pakistan but that he only had contact with his mother. It would be reasonable to expect that he could at least have enquired with his mother, with whom he was in contact, about details of his extended families’ flight to Afghanistan, even if only the timeframe, yet he provided no details whatsoever.
135. I do not accept that his family are in hiding or that the Taliban are sending threats to the applicant via his mother. If she was hiding it seems anomalous that the Taliban’s intelligence assets are so effective that they can apparently find her so easily, yet not efficient enough to know that the applicant is out of the country. It also makes little sense that if their aim was to harm the applicant they would give him advance warning by sending threats to his mother.
136. He was also inconsistent in his second hearing, saying at one point that he was only in contact with his mother, but also that he was in contact with a brother and his mother. The fact that he was now in contact with his brother since his last hearing when he claimed that he had had no contact with his siblings for four years appears coincidental in the extreme. Not only that, It also makes little sense that after claiming that his family were in hiding for fear of their lives, he would then ask his brother to physically go outside to get evidence from his friends, from [Friend A’s] parents or from political party HQ. He had four years to provide this type of information and friends in Pakistan that weren’t allegedly in hiding for fear of their lives. They could have been asked to gather this information rather than his brother.
137. The applicant made a range of other claims in his pre-hearing submission; that he was deliberately failed at university because he reported a student for cheating; that he was accused of blasphemy on one of his Facebook sites after [Friend A variant’s] death, and threatened with death by extremists on another of his Facebook sites if he returned to Pakistan. None of these were in his original claim, and I note that he produced no evidence regarding the Facebook threats, saying respectively that they were on his allegedly blocked site and that the comment couldn’t be found any more. He also produced no evidence regarding being failed at university but even if he had failing university subjects is not uncommon and could be for any number of reasons other than reporting a student for cheating. I do not accept that any of these claims represent the truth and they have been fabricated.
138. I also do not accept that the applicant cannot return to Pakistan as he does not recognise the State of Pakistan. This relies on his own oral evidence and that of his witness; I have not placed much weight on either of their evidence. And, given that I do not accept that the applicant has undertaken any anti-government political activity while in Pakistan I do not accept that the applicant has demonstrated any non-acceptance of the Pakistani state.
139. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
140. Although I have disregarded the applicant’s protest attendance and social media article for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). Whilst I note that country information states that people who post articles on social media criticising the security forces or armed groups face a moderate risk of official discrimination and societal violence (and the applicant provided evidence of prominent activist/bloggers being targeted in Pakistan), I do not accept that the applicant has a profile sufficient to elicit interest from the Pakistani authorities.
141. Although he claims to be politically active with PMP, the lack of any political activity in Pakistan or profile amongst a population of more than 200 million Pakistanis means that I am not satisfied that he is, or would be of any interest to Pakistani authorities for his actions in Australia. The moderate risk associated with this activity in Australia (including some social media entries post-his arrival in this country) is ameliorated by the fact that he lacks any political profile in Pakistan or history of political activism there.
142. While I accept that he spoke to [Media Agency 1] at a protest in [City 1], he provided no translation of what he said or whether he was named by [Media Agency 1] or identified himself. Even if I accept that it was critical of the government or extremist groups and that he was identified, the demonstration was a tiny one. I note that he claimed that one person’s critical voice overseas is worth a thousand ones domestically, yet he has not provided any country information nor has the Tribunal been able to find any that would indicate that individuals with his profile of participating in small protests or posting comments critical of the government or extremist groups on social media elicit any interest in either group on return to Pakistan.
143. I also do not accept that the applicant was ever a member of the PMP/PTM or supported Loy Afghnistan, attended demonstrations in Pakistan, was threatened by the Taliban or any other extremist group, revealed extremist teachings at a madrasa, received confidential information about politicians, was, is or would be of any interest to the Pakistani authorities or extremist groups for any reason, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
144. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
145. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
146. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
147. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…

[2021] AATA 2635

31 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction