1714406 (Refugee)
[2021] AATA 1862
•13 April 2021
1714406 (Refugee) [2021] AATA 1862 (13 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1714406
COUNTRY OF REFERENCE: Pakistan
MEMBER:Dr Colin Huntly
DATE:13 April 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 April 2021 at 10:14am
CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Taliban – NGO activity – threat letters – physical and mental health needs – frequent voluntary returns to Pakistan – delay in applying of protection – generalised acts of violence – decision under review affirmedLEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2CASES
BBK15 v MIBP [2016] FCA 680
Chan v MIEA (1989) 169 CLR 225
Haji Ibrahim v MIMA (1999) 94 FCR 259
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
SZTEQ v MIBP [2015] FCAFC 39
SZTES v MIBP [2014] FCCA 1765
SZTES v MIBP [2015] FCA 719
VSAI v MIMIA [2004] FCA 1602Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 2 July 2015. The delegate refused to grant the visa, firstly on the basis that the applicant did not have a well-founded fear of persecution in Pakistan from any person, for any reason.
In the alternative, the delegate was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, he faced a real risk of significant harm now or in the reasonably foreseeable future from any person, for any reason.
WHAT IS THE BACKGROUND OF THIS APPLICATION?
Introduction
The applicant originates from Mansehra in Khyber Pakhtunkhwa Province, Pakistan. He arrived in Australia on a [temporary] visa [in] October 2010. The applicant applied for a protection visa in Australia on 2 July 2015.
The applicant voluntarily returned to Pakistan on four subsequent occasions, travelling on this visa. His last return flight to Australia from Pakistan occurred [in] March 2015. In the final four and a half weeks of his latest visit to Pakistan, he assisted his father in promoting the activities of a small, family-financed NGO, ‘[Organisation 1]. [Organisation 1] was formed [in] February 2015 in Mansehra by his immediate family together with the nominal support of three family friends. The applicant’s father terminated [Organisation 1] [in] May 2015, approximately [time period] after the applicant had returned to Australia.
The applicant seeks protection in Australia under s.36(2)(a) of the Act, and claims to hold a well-founded fear of persecution in Pakistan now and for the foreseeable future from persons and groups associated with the Taliban in Pakistan (TTP) for the essential and significant reason of his association with [Organisation 1]. Also, while not included in the applicant’s express claims for protection, the Tribunal has considered whether or not he engages Australia’s protection obligations for the essential and significant reason of his physical and mental health needs.
The question as to whether the security situation in Pakistan generally is such that the applicant would engage Australia’s complementary protection obligations has been considered below. The potential impact of Covid-19 on any decision on return may also be a relevant consideration.
This Tribunal’s decision in summary
I have considered the applicant’s express claims for protection under the refugee criterion, individually and then cumulatively as far as they relate to the activities of [Organisation 1] and find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for this essential and significant reason.
I have accepted aspects of the applicant’s mental and physical health related claims and I have considered the implied claim that the applicant has a well-founded fear of persecution in Pakistan now, or in the reasonably foreseeable future, for the essential and significant reason of his mental and physical health condition under the refugee criterion. I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for that essential or significant reason.
I find that the available professional medical evidence does not support an inference that the applicant’s return to Pakistan engages Australia’s complementary protection obligations for that essential or significant reason.
Based on the foregoing findings, am not satisfied that the applicant is a person to whom Australia owes protection obligations under the Act.
Proceedings in person
The applicant appeared in person before the Tribunal as presently constituted to give evidence and present arguments on two occasions: firstly, on 11 February 2021, and again 1 April 2021. The first hearing was held by telephone using the MS Teams platform due to concerns surrounding COVID-19. The second hearing was held in person at the Perth registry of the Tribunal. All hearings were held with the assistance of interpreters fluent in the Pashtun, Urdu and English languages.
The applicant was not represented in his application by a registered migration agent.
Materials available to the Tribunal
In addition to the country information surveyed in this decision, I have had regard to the applicant’s 2015 original Form 866C seeking a protection visa and the department’s file in this application.
The departmental file contains selected newspaper articles dated between 2008 and 2015, depicting numerous instances of sectarian violence perpetrated in Khyber Pakhtunkhwa Province, particularly in the Mansehra area. There is a clear link between NGO activity and instances of targeted and indiscriminate deadly force described in these news reports.
Also included in the material on the departmental file is what purports to be a memorandum of association dated [in] December 2014 and a certificate of registration for [Organisation 1] dated [in] February 2015. This shows the following nominal office holders:
a.Applicant’s father (President);
b.Applicant (Senior Vice President);
c.[Mr A] (General Secretary);
d.Applicant’s sister (Finance Secretary);
e.Applicant’s mother (V.C. Chief In Patron);
f.[Mr B] (Joint Secretary);
g.[Mr C] (Member).
In addition, on the same file there are a number of local news reports illustrating that [Organisation 1] engaged in the distribution of [goods] [in] February 2015 and that [Organisation 1] presented some academic prizes to students at a local Islamic college [in] April 2015. Also included in the file are photographs showing the applicant and his father involved in Polio vaccination distribution activities. At the hearing on 1 April 2021, the applicant stated that the voluntary [Organisation 1] Polio vaccine distribution support occurred [in] February 2015, with a briefing to volunteers (including the applicant and his father) having taken place on the afternoon of [the previous day].
A police ‘First Information Report’ (FIR) and accompanying photograph are included in the applicant’s submissions on the departmental file. These relate to what the applicant states was an attempted hijacking of the car being driven by the applicant’s father as he drove them both from [an Organisation 1] board meeting to the family home on the evening of [a day in] March 2015.
When the car was driven past the hijackers, they fired their guns towards the vehicle. The applicant suggests that the two holes to the side of the car shown in the photograph provided were caused by these gunshots. The police statement reads as follows:
It is stated that applicant is a resident of [address]. Yesterday [date specified] at 4pm he went to attend the meeting of [Organisation 1] and returned home in the evening. When he reached near [a named location] 3 personates were standing on the road. They tried to stop our car. When we did not stop they had fired with guns on our car registration no [number]. Applicant was driving by himself and with him sitting on the front seat his son [named]. Applicant rushed his car and reached his house in Mansehra because incident happened at about 6:45pm and there was heavy rain at that time: Applicant has no known enemies. Applicant is searching by himself. With this application, applicant is requesting to trace unknown people and do the matter with them according to Law.
The applicant also provided the department with what purports to be a handwritten ‘threat letter’ dated [in] May 2015. According to the applicant, this letter was left at the office premises of his father. While it is signed by a named representative of the ‘Tehreek-e-Jihad Islamia, Pakistan’ (a TTP affiliate group) it is not addressed to anyone or any entity. According to the translation provided by the applicant with this threat letter, it states as follows:
Your NGO like all other NGOs spread secularism on the name of goodness. You people motivate parents to give Polio drops to theft children. In these drops there are illegal and forbidden (Haram) elements. Non-Muslims and foreigners are destroying our children and our race. You people are in favour of giving education to girls. This thing spreads obscene and denudation in the society, as this thing destroys Muslim community. Islamic education is compulsory for children. You people are working for non-Muslims and foreigners. Work on spreading of Islam & Jihad by supporting us and by destroying the system of foreigners. I am fulfilling my duty by preaching you the teachings of Islam. If you will not accept my invitation then there will be a Jihad against you. Be an Islamic soldier (Mujahid) and try to make others also.
The applicant provided the department with an excerpt from a Pakistan publication called the ‘[Publication 1]’ dated [in] November 2015. The translation provided together with this excerpt (which appears to be in the form of a public announcement) states as follows:
NO CONCERN ANNOUCEMENT
Due to unavoidable circumstances I announce that I have no concern with my son [name] and daughter [name] I am not responsible for their Business, word and deed.
From:- [name and address].
No context has been provided to explain the import of this public announcement in the context of the applicant’s claims. Accordingly, it is accepted, but I have afforded it little weight.
BEFORE THE TRIBUNAL
Preliminary
By email dated 15 January 2021, the Tribunal advised the applicant that a hearing would be held in the near future and also that an updated advice concerning the status of his claims and supporting evidence would be expected from him within seven days from the date of that email. The applicant responded on 22 January 2021, indicating that he would not be providing additional documents in support of his application for protection and that he was available to proceed with his hearing.
By email dated 29 January 2021, the applicant was invited to attend a hearing with the Tribunal on 11 February 2021. On 31 January 2021, the applicant requested a hearing postponement in the following terms:
I hope you are doing well. This email is regarding request for hearing reschedule. Actually my file is not fully prepared. There are few relevant evidence and document which i need from back home . As the departmental cooperation at back home is not very efficient and on top of that corona crisis make it more slow.
Also i have some health issues which are already active and any pressure make flare-up and getting more worse.
Kindly allow me 4-6 weeks time to get fully prepared with all evidences, Documents and witness.
On 1 February 2021 the Tribunal refused to grant the requested postponement in the following terms:
On 29 January 2021 we sent a letter inviting you to attend a hearing on 11 February 2021 to give evidence and present arguments relating to the issues arising in your case.
On 1 February 2021 we received a request that the hearing be postponed. The Member has considered the request carefully but has decided not to postpone the hearing.
The first hearing will be preliminary in nature, and any specific issues affecting the review application can be raised with the Member at that hearing. The matter has been under consideration for over five years and needs to be promptly addressed. The hearing will therefore proceed (via telephone) as set out below. Please note that all details about the hearing, as set out in the hearing invitation letter dated 29 January 2021 still apply.
On 4 February 2021, the applicant provided a hearing response in the standard form, indicating that he may wish to call his sister as a fact witness, if appropriate. This hearing response also included the following documents:
a.Newspaper extract ‘The Daily Shamal Abbottabad’ dated 25 January 2021. Translation of the by-line reads ‘Mansehra, white colour professional criminals started to go here and there in shape of weapons equipped groups’. General reporting of violent criminal thugs operating in Mansehra.
b.FIR and Translation dated [in] March 2018:
With due respect, it is submitted that my daughter came back to his native house Pakistan [in] September 2017 and she has established a tuition centre in her house for providing educational facilities to childrens just to kept her busy and till now, there are 10 children studying with her.
Tomorrow, the Wednesday [in] March 2018 at 10:00PM night time, some unknown person(s) made firing at tuition centre. On firing sound, one of the resident of the locality informed the local police upon which the local police rushed at the spot in 08 minutes and started to search accused(s) after short information which continued till two hours but no arrest was made possible and the Incharge police party instructed me to present the written details of the occurrence to District Police Officer, Mansehra by which the local police can continue their inquiry for reaching the accused(s).
c.A brief written submission from the applicant referring to ongoing violence against NGOs in Pakistan generally, repeating the previous integers of his claims and linking his fears to an attack against [Organisation 2] in Mansehra. (The applicant subsequently stated at the second hearing that two of his friends were amongst those killed in this attack, which is apparently depicted in four of the newspaper clippings referring to a [2008] terrorist bombing, submitted to the department during the original application for protection.)
d.GI Specialist Procedure Report (Colonoscopy) [Dr D] (Consultant) Osborne Park dated [in] September 2016. Refers to ‘Very minor non-specific caecal inflammation with appearances typical of idiopathic ulcerative colitis.’ Dietary management and symptomatic management recommended, including differential recommendations as to therapeutic interventions.
e.GI Specialist Procedure Report (Gastroscopy) [Dr D] (Consultant) Osborne Park dated [in] September 2016. Refers to ‘Normal upper GI appearance’ and ‘bulk of symptoms is likely to be due to functional dyspepsia and in this case, exacerbated by stress.’
f.GI Specialist Report (Review Clinic) [Dr D] (Consultant) [Hospital 1] dated [in] May 2019:
Problems:
1.Irritable bowel syndrome with marked sensitivity to emotional stress.
1.1significant emotional stress, possibly an element of post-traumatic stress disorder compounded by marked anxiety and near panic attacks.
1.2given trial of escitalopram 10 mg nocte.
1.3also given prescription for mebeverine 135mg p.m.
[The applicant] had some initial response to amitriptyline 10 mg nocte but when switched to 20 mg nocte he felt that it made him more emotionally labile with a tendency to feeling panicky. He was then given a trial of Valdoxan which again work temporarily supplemented with lorazepam. Nonetheless, he does not feel that it is providing adequate to cover for both his anxiety and his intestinal pain.
On further discussion he said that he was being affected by being randomly shot at whilst he and his family were driving in Pakistan. He has felt shaken and very insecure now, even having relocated to Australia.
In the past, I have had discussions with psychiatry who have suggested using escitalopram in the context of anxiety induced GI symptomatology.
I do not know whether it is specifically recognised for it but it seemed to work on two cases that I have been involved with, so I will give [the applicant] a trial of this.
I will see him again in six months.
g.ED Discharge notes [Dr E] (JMO) [Hospital 1] dated 22 June 2020:
[The applicant] presented to emergency Department with panic attack likely secondary to PTSD. I have asked him to start on escitalopram. Please continue to monitor the effect of escitalopram, consider and on PRN antianxiolytic and organise a holter monitor if palpitation is persistent.
h.GP Report [Dr F] (Consultant) [at a named] Medical Centre dated 2 February 2021:
[The applicant] DOB [specified] has been seen regularly at our clinic. He describes feelings of stress, anxiety, low mood, sleeping difficulties and withdrawal from social activities. It has impacted highly on his daily life. He has a diagnosis of PTSD, Anxiety and Depression.
He needs regular counselling along with medications (Tablet Escitalopram 10 mg one daily; Tablet Ativan 1 mg PRN) for depression and panic attacks. He has been coming here for regular follow-ups. We have recommended Mindful techniques along with psychological therapies which he is going to commence soon.
I request that this gentleman be given all support possible. If you require any further information please don’t hesitate to contact us.
i.A signed statement from the applicant relating to the foregoing material in the following terms:
I am suffering from a severe abdomen problem, which started 6 years ago (mid of 2015). After a long treatment with pills which did not respond and my health was getting worse. So the doctor did the following surgeries that included endoscopy, colonoscopy, blood and stool test.
The treatment was done by Gastroenterologist [Dr D] but I didn’t get rid of that health issues. After a long clinical reviews Dr realised that all this worse and reflux, Strong cramps, diarrhoea and still bleeding is related to depression, anxiety and fear which I’m suffering a lot after the incident of fire shot which made me mentally sick. So he prescribed me a lot of different antidepressant pills.
I am still suffering depression, panic attacks, nightmares, lack of sleep and fear of harm and continuously feeling unsecure. Which exacerbate acid reflux and IBS-D with strong cramps, I am taking these pills continuously to overcome my mental problem and abdomen problem. I regularly see the Doctors and Even this PTSD sent me to emergency because of depression attacks and fears. And with the time my depression and fears are getting very worst that sometime I feel that somebody is going to harm me and I’m feeling unsecured even though Perth is very safe place.
My Dr and hospital reports are attached with this letter, which shows each and everything regarding this problem which I’m suffering mentally and physically torture every day of my life since 2015 and getting worse and worse. Nobody can imagine what kind of pain my soul is suffering.
First hearing
The applicant provided a detailed personal history at the first hearing. He is one of two children born to well educated professionals. Both the applicant and his [sister] are educated to a tertiary level in Pakistan. The applicant’s mother is a former [Occupation 1], having retired around 2014. His father is a retired [Occupation 2], having held senior roles in Government in the province for over 30 years. Although on a state pension, the applicant’s father has private business interests which he still actively pursues.
The applicant’s sister is an Australian citizen, having married an Australian citizen approximately nine years ago. This relationship produced a [child], now aged approximately [age]. While that relationship is now genuine and ongoing, at the time of the applicant’s departmental interview [in] July 2016, the applicant’s sister was separated from her husband for a period of time. In September 2017, when their child was approximately [age], the applicant’s sister took the child to stay at the family home in Mansehra, Pakistan for approximately 10 months.
While living in the family home, the applicant’s sister operated a ‘tuition centre’ from the house for a period of months, providing educational services to local children. The applicant stated that threats were made against his sister by unknown persons and there was a shooting incident near to the house. The ‘tuition centre’ was closed and the applicant’s sister returned to Western Australia some months later.
In November 2019, the applicant’s father visited Perth on a Tourist visa and stayed with the applicant’s sister and spent time with the applicant before returning to Mansehra in Pakistan in February 2020.
At the conclusion of the hearing, I advised the applicant that his multiple return visits to Mansehra since he first arrived in Australia, together with the fact that his sister returned there following his application for protection (taking her [child] at the same time) and his father’s voluntary return to Mansehra in February 2020 were not necessarily consistent with his claims to hold a well-founded fear of harm in that city or Pakistan more generally. I also advised that there was some perception of delay in his seeking of protection, given the history of generalised violence in Khyber Pakhtunkhwa discussed in the available country information, the delegate’s decision record and the applicant’s own evidence. I suggested that these matters would need to be discussed further at a second hearing.
Following the first hearing, in a signed undated statement to the Tribunal, the applicant’s sister made the following written submission:
When we started our NGO in 2015, after some social activities, we got threats and we closed it. After that me and my brother came back to Australia.
In 2017 I went back to Pakistan and I didn’t have any intention to run the NGO again. My aim was to check the security situation of our area, means it is safe to go and live there but I really disappointed to see the same situation we faced in 2015. I only started a tuition centre from primary to level 10 students, and again we had to close it after shot firing at our home.
I am witness of all situation and also the witness of my brother’s mental and other health conditions, which are going severe day by day.
As you know that in our back home the security issues are still there.
We don’t have any other intentions to live here except a security issues in our country.
So I am requesting you to help my brother in this case.
Hope you will understand the situation.
If you need any information feel free to contact me.
Second hearing
Prior to the second hearing, the applicant submitted an email on 25 March 2021 containing the following signed statement:
As I attached all the relevant documents including attacks on NGOs , their workers, polio team members ,military and police force. Most of them were working in my home town and I am witness of the attack on [Organisation 2], also my friends were working in [Organisation 2] and two of them were died in brutal attack by terrorists/extremist. Before attack they got threats and nobody was believing on that type of threats but one day these threats came true in the form of attack. As the security situation in Pakistan is very worst, there are different armed groups, subgroups and religious groups who have fundamental extremism in their mind and these groups are doing terrorist attacks, especially in Mansehra (KPK) has served as a base for militants’ operating in Afghanistan and Kashmir.
Militants groups and religious parties blaming NGOs/welfare trust and other organisation who work for human rights etc of spreading vulgarity and society. A lot of NGOs have left the region due to deteriorating law and order situation. Same is happening in my case, they gave me threats in form of letter and fire shot on our vehicle and outside the house. We stopped each and everything and I moved back to Australia and I am scared of going back because these threats can come true in the form of deadly attack on me. As I have been living in Australia from 6 years after getting threats, and I am saved here but when I will go back what the extremists do, nobody knows I’m just asking you to allow me to live in Australia right can spend a peaceful life.
[Organisation 1]/NGO claims
During the second hearing, the applicant confirmed all of the foregoing factual material and evidentiary submissions. In particular, I note the applicant confirmed that at his suggestion, [Organisation 1] was formed [in] February 2015 and was dissolved [in] May 2015 (a lifespan of [number] days). During this time, the applicant was personally concerned and involved in the activities of [Organisation 1] for approximately 34 days. The activities of [Organisation 1] as described by the applicant were:
a.One or two pre-registration meetings involving the applicant’s nuclear family and three of his father’s personal associates;
b.Registration processes [in] February 2015;
c.Voluntary support for Polio distribution program [in] February 2015 (and attendance at a briefing for program volunteers on the afternoon [before]);
d.Attempted delivery of [goods] at a [local public agency] [in] February 2015. When this was refused, the [goods] were gifted to villagers in two locations in the local area;
e.[Organisation 1] meeting [in] March 2015;
f.Presentation of academic prizes to students at a local Islamic college [in] April 2015 (applicant not in attendance); and,
g.[Organisation 1] dissolved by the applicant’s father [in] May 2015.
The applicant was physically present in Pakistan during dates at which five of these activities occurred. There is no reason to doubt that he participated in these activities.
As indicated above, the applicant applied for protection in Australia, based on his subjective fear of harm in Pakistan and in reliance of the foregoing facts and evidence, on 2 July 2015. At the time of the applicant’s departmental interview [in] July 2016, the applicant’s sister had separated from her husband for a period of time. The applicant was living with his sister at this time. It is significant that the signed statement provided to the Tribunal by the applicant’s sister stated: ‘When we started our NGO in 2015, after some social activities, we got threats and we closed it. After that me and my brother came back to Australia.’ The same signed statement provides that: ‘I am witness of all situation and also the witness of my brother’s mental and other health conditions, which are going severe day by day.’
Leaving aside the foreshortening of the chronology of significant events in the first of these extracts from the applicant’s sister’s signed statement, I accept that she has personal knowledge of all the relevant events and is therefore qualified to form conclusions about these matters and express informed views based on those conclusions. In this respect, it is telling that, in September 2017, when her own child was approximately [age], the applicant’s sister took the child to stay at the same family home at [address] for approximately 10 months.
After discussing with the applicant the nature of the evidence that would be obtained from the applicant’s sister, the applicant acknowledged that doing so would add little to the Tribunal’s understanding of her evidence beyond the statement already received. On this basis, I determined that it was unnecessary to call the applicant’s sister during the hearing.
Roadside incident [in] March 2015
I accept that the applicant and his father were harassed at a roadblock on at least one occasion during the applicant’s time in Pakistan while driving on remote roads in the Khyber Pakhtunkhwa near [a named location] on the night of [date in] March 2015. I accept that the applicant’s father’s car may have been hit by gunshots. The gunshot impact shown on tendered photographs may have coincided with night-time roadblock harassment. I accept that night-time roadblock harassment experienced by the applicant and his father may have occurred on the same evening that a private meeting was held at which [Organisation 1] business may have been discussed.
In this respect I note Department of Foreign Affairs and Trade (DFAT) country information that suggests ‘Kidnapping is common in parts of Pakistan.’[1] The absence of [Organisation 1 official] at the time of the incident, the lack of any [Organisation 1] minutes of meeting supporting the suggestion that one was held, the absence of witness statements contemporaneous with the FIR in support of any connection with [an Organisation 1] meeting (beyond the bare temporal connection mentioned in the FIR) taken together satisfy me that the events described in the FIR are unrelated to [Organisation 1] or any of its activities. I find, therefore, that this incident was ad hoc and opportunistic.
[1]DFAT Country Information Report: Pakistan (20 February 2019) at [2.98].
I further find that the applicant’s narrative and supporting evidence does not support his inference that any of these incidents were causally related to any of the activities of either [Organisation 1], or the applicant or anyone associated with the applicant in Pakistan.
Threat letter
There is some Country Information relating to ‘threat letters’.[2] This is as follows:[3]
The practice of sending threat letters is generally uncommon among the lower middle and lower classes and usually only high profile politicians, journalists and members of NGOs who are publicly active against militant groups receive threat letters. Here again, the local experts interviewed are of the opinion that a “low-profile” person will not receive a threat letter.
[2]‘ Fact finding mission report: Pakistan’, Austrian Federal Office for Immigration and Asylum, September 2015, pp.40-42, CISEC96CF15310.
[3]Ibid at 40.
The same Country Information states as follows:[4]
A much bigger problem seems to be the practice of extortion through which criminals and/or militants obtain money by making use of threats and intimidation. There are many reports of militants extorting money from the wealthy and it is quite obvious that only people with sufficient means will be targeted in this manner. It is also common for criminals to pretend to be militants and exploit the fear of the people in order to obtain money more easily.
[4]‘ Ibid at 41.
Other Country Information states as follows:[5]
Simply living in an area occupied, either wholly or partly, by the Pakistani Taliban and, or, other militant groups does not give rise to a protection need. In general, the risks from the Pakistani Taliban and, or, other militant groups will depend on the particular profile of the person, the nature of the threat and how far it would extend.
[5]UK Home Office (2014) Country Information and Guidance-Pakistan: Fear of the Taliban and other militant groups. 8 May 2014 at [1.3].
DFAT Country Information states as follows:[6]
Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.
Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.
FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.
Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.
[6]DFAT Country Information Report: Pakistan (20 February 2019) at [5.71] - [5.74].
In addition to the applicant’s evidence, I note the credible Country Information above that suggests document fraud is endemic within Pakistan. Accordingly, while I place little weight on the threat letters and first information reports provided by the applicant, I have considered the documents in their wider context.
I note that, even if one accepts that [in] May 2015 the applicant’s father (President of [Organisation 1]) received the threat letter referred to above, that letter was not addressed to anyone or any entity. Accordingly, it is potentially relevant to consider how this letter, if genuine, was viewed both by the person who (as the applicant asserts) actually received it, and any others for whom it may have held particular significance.
Firstly, according to the applicant, [Organisation 1] had been dissolved on [an earlier day in] May 2015. Second, there is nothing to suggest that any report was made to police regarding the threat letter by the applicant’s father at the time. Third, the applicant’s father welcomed his daughter (the applicant’s sister, herself a former office-bearer in [Organisation 1]) back to the family home in Mansehra two years later, and her [child] for a period of 10 months. During that time, the applicant’s sister operated a ‘tuition centre’ from the family home for a period of months. Fourth, the applicant’s father visited Perth, Western Australia in late 2019 and voluntarily returned to the same family home in early 2020. None of this conduct by people closely and intimately involved with the applicant and knowledgeable about his claims for protection is consistent with the applicant’s claim to hold a genuine subjective fear of harm in Pakistan (first notified to the department by the applicant on 2 July 2015).
Based on this assessment, I am not persuaded that the applicant’s subjective fear of persecution in Pakistan for the essential and significant reason of his involvement in [Organisation 1] is genuinely shared by those other members of his family who have a higher community profile in the location in which the applicant claims to have experienced, and potentially continues to face, harassment, intimidation and threat for present purposes.
For this reason, this integer of the applicant’s claims to hold a well-founded fear of persecution in Pakistan now and for the reasonably foreseeable future is not objectively well-founded.
Night-time gunshot incident [in] March 2018
The applicant suggested that his claims are supported by the further FIR and Translation dated [in] March 2018 submitted to the Tribunal by the applicant via email on 4 February 2021 (referred to above) concerning gunshots fired at (or near) his family home in Mansehra. This incident is also referred to in the signed statement submitted by his sister.
A number of aspects of this FIR are unusual. Firstly, it reported ‘firing at tuition centre’ at 10:00pm. It is strange that the applicant’s father should refer to his own home as a ‘tuition centre’ in this report. Given that the shots were reported to have occurred at 10:00pm, it is difficult to accept that residents at the premises at the relevant time would refer to it as a ‘tuition-centre’, particularly when there was [child] asleep in the home. That being said, the FIR does record that this incident involved ‘persons unknown’ and the local police were quickly on the scene and thoroughly searched the local area. No mention is made of any impact site being located for any bullet-holes.
After questioning the applicant at the hearing, he was not certain if the relevant gunshots were ‘at’ his parents’ house, or ‘near’ the house. Notwithstanding all of these anomalous aspects of the FIR [of] March 2018, given the fact that the applicant had been absent from the country for three years at this point and given also that [Organisation 1] was dissolved in May 2015, I am not satisfied that any of these events is causally connected in any way to either [Organisation 1] or the applicant. To the extent that the events referrable to the FIR [of] March 2018 are credible, I find that they are entirely unrelated to [Organisation 1] and/or the applicant personally.
Analysis of Principal Claims
Findings relating to [Organisation 1]-based claims
I find that the applicant’s family and three close family associates established a philanthropic enterprise in Mansehra named [Organisation 1]. This entity was registered [in] February 2015 with the intention of supporting limited beneficial public purposes in their local community. I find that the applicant was the principal architect and ‘Senior Vice-President’ of this venture. I find that [Organisation 1] operated through its office-bearers on seven or eight days for a period of hours on each occasion. Four of these occasions involved private meetings of the office-bearers of [Organisation 1] or administrative processes related to the registration and dissolution of [Organisation 1].
Of the five public events at which [Organisation 1] was represented, the applicant attended two of these events in support of the attendance and participation of his father, an acknowledged elder in the community and President of [Organisation 1]. Of these two public events, only one was in any sense planned (support for the polio-vaccination effort [in] February 2015, with a prior briefing to volunteers the previous afternoon). The other occasion, [later in] February 2015, involved [Organisation 1] attempted delivery of [goods] being refused at a [local public agency] and the subsequent handing out of the [goods] in two of the nearby villages on an ad hoc and opportunistic basis.
I find that any gunshots discharged at or near the applicant’s family home on the night of [date in] March 2018 were unrelated to either or both [Organisation 1] or the applicant personally for any reason.
On the basis of the foregoing considerations, I find that the applicant’s claim that his association with the public activities of [Organisation 1] over a 34 day period in early 2015 has given, or will give, him a profile of interest to agents of harm in Pakistan for that essential and significant reason to have been embellished and are not objectively well-founded.
I find, therefore, that the applicant’s claims that his association with the public activities of [Organisation 1] over a 34 day period in early 2015 (or his holding the office of Senior Vice-President of [Organisation 1]) gives rise to a real chance of serious harm or any risk of significant harm on return to Pakistan for the purposes of either s.36(2)(a) or s.36(2)(aa) of the Act to be embellished and are not objectively well-founded for the purposes of both the refugee criterion assessment and the alternative complementary protection assessment.
Analysis of claims inferred
Health related claims
While the applicant has not specifically claimed to fear persecution on the ground of any physical ailment, I have inferred from the submissions received that he claims that his physical and mental health condition may give rise to a real chance of serious or significant harm on return to Pakistan or that it would be unreasonable to expect the applicant to relocate to another area of Pakistan, on return, due to his physical and mental condition and the inadequacy of health services in Pakistan.
I note that the applicant’s GP has certified that the applicant ‘has a diagnosis of PTSD, Anxiety and Depression.’[7] However, [Dr F] does not disclose the basis on which this diagnostic assessment was made, or indeed, the identity of the relevant specialist making this diagnosis. The applicant has included a number of specialist medical reports (referred to above). As will be recalled, two of these reports do refer to ‘Post Traumatic Stress Disorder’. These references are as follows:
a.‘significant emotional stress, possibly an element of post-traumatic stress disorder (PTSD) compounded by marked anxiety and near panic attacks’[8];
b.Applicant ‘presented to emergency Department with panic attack likely secondary to PTSD.’[9]
[7]GP Report [Dr F] (Consultant) [at a named] Medical Centre dated 2 February 2021.
[8]GI Specialist Report (Review Clinic) [Dr D] (Consultant) [Hospital 1] dated 27 May 2019.
[9]ED Discharge notes [Dr E] (JMO) [Hospital 1] dated 22 June 2020.
Neither of these reports are from specialists in psychiatric medicine or clinical psychologists. Both of these reports (and indeed the report from the applicant’s GP) refer to the applicant’s self-reporting on this issue in connection with a potential PTSD diagnosis. Accordingly, while acknowledging the underlying anxiety and depression symptomatology about which all three doctors appear to be in agreement (and which are within their relevant areas of specialty), I am not satisfied that the applicant has been diagnosed, in a clinical sense, with PTSD.
I have had the opportunity of interviewing the applicant on two occasions. I am satisfied that the applicant faces anxiety and depression-related health challenges. I particularly note that the applicant exhibited significant emotional lability when discussing the 2008 terrorist attack on [Organisation 2] in Mansehra, which claimed the lives of persons known to him for whom he obviously cared deeply. These experiences and challenges understandably exacerbate his underlying gastrointestinal health challenges. The applicant has sought the best possible health advice, investigations and interventions for his underlying gastrointestinal health challenges. He appears to be reasonably compliant with the therapeutic interventions suggested by his doctors.
Having made this observation, I also note that, since the most distressing and personally impactful event described at the hearings and in the applicant’s written submissions namely, the 2008 extremist attack of the offices of [Organisation 2] in Mansehra, the applicant voluntarily returned to his family home in that city in Pakistan from Australia on four occasions. He also stated at the hearings that his anxiety and depression have been challenges for him even in Australia, which at least raises the possibility that there may be other underlying mechanisms at play, as yet undiagnosed by a suitably qualified medical professional. This observation is made not to form the basis of any conclusion, but to demonstrate how a Tribunal decision that can only be made on the basis of evidence must be circumspect when weighing and testing the evidence presented by an applicant.
One notable exception to the applicant’s general compliance with health advice appears to have been that of his GP’s recommendation he pursue ‘psychological therapies which he is going to commence soon.’ I note that his consulting gastroenterologist highlighted to the applicant and his GP the exacerbating impact of stress as far back as 20 September 2016, and suggested that therapeutic interventions trialled up to 27 May 2019 had not been adequate. I further note that the ED JMO advised the applicant and his GP on 22 June 2020 that his anxiety and depression symptoms required further adjustment and ongoing management. Despite this, as at 2 February 2021, the applicant still had not obtained clinical psychological or psychiatric assessment or treatment. As at the date of this decision, the applicant has made no submissions to suggest that any such clinical support has been sought or obtained.
Nothing in the foregoing medical evidence, is corroborative of the serious or significant harm the applicant claims to have suffered in Pakistan. Having made this observation, it seems clear that the applicant does exhibit symptoms consistent with depression and anxiety warranting therapeutic support. The applicant has referred to no evidence about the likely effect of return on the applicant’s mental health beyond his own morbid thoughts and a supporting letter from his sister, who voluntarily returned to her family home in Pakistan with her [child] approximately two years after the principal circumstances relied upon by the applicant in his application for protection (and stated to have affected the applicant’s sister) are claimed to have occurred.
Notwithstanding this, I accept that the applicant may continue to suffer physical and mental health issues on return to Pakistan and that he may require treatment and support for these in Pakistan. The applicant has provided no evidence and made no claims that he would face serious harm on return to Pakistan by reason of his membership of any particular social group including people suffering from mental or physical health issues. Accordingly, I find there is no real chance he faces serious harm on that basis, now or in the reasonably foreseeable future.
Further, on the evidence and claims made and presented, I find that the applicant does not face a real risk that as a necessary and foreseeable consequence of his return to Pakistan the applicant will suffer significant harm on account of having been diagnosed with anxiety, depression, stress, PTSD or for any other reason associated with his mental or physical health.
After reviewing the applicant’s medical history as presented in the material provided, it is open to me to find that he has not been diagnosed with any physical condition that would give rise to a real chance of serious or significant harm on return to Pakistan in the sense described at s.36 of the Act, or which would present any impediment to his relocation to another area of Pakistan should that become necessary.
On this basis, I find that the applicant’s claims that his physical and mental health needs would give rise to a real chance of serious or significant harm on return to Pakistan or that it would be unreasonable to expect the applicant to relocate to another area of Pakistan, on return, due to his physical condition and mental health needs and the inadequacy of health services in Pakistan, while based on genuine medical and psychological grounds, do not rise to the level of either serious or significant harm required under either s.36(2)(a) or s.36(2)(aa) of the Act.
Generalised violence as an implied claim
To the extent that the applicant’s claims might reasonably be said to raise an implied claim for protection grounded on a well-founded fear of harm for the essential and significant reason of generalised violence in the region perpetrated by agents of harm including, but not limited to the TTP, various non-ideological criminal thugs and other non-state actors, some observations should be made.
The Tribunal as presently constituted has had cause to consider this question in a different application.[10] As discussed in that matter, DFAT country information regarding generalised violence in Pakistan is as follows:[11]
2.66.The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
2.67.Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
2.68.Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
2.69.The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).
[10]AAT MRD Ref: 1515694 (26 September 2019).
[11]DFAT Country Information Report: Pakistan (20 February 2019) at 18.
The Tribunal further notes the following extract of country information:[12]
[12]DFAT Country Information Report: Pakistan (20 February 2019) at 19.
Security Operations
2.75.The Pakistan armed forces have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups.
2.76.In December 2014, the APS attack led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. The NAP ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2.
2.77.Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel.
2.78.In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province.
2.79.Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.
2.80.In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).
Two things emerge from an assessment of this and other comprehensive country information about the general security situation in Pakistan, namely that there is a generalised experience of religious, sectional and other forms of violence that is difficult for members of the Australian community to comprehend. The agents of harm perpetrating this generalised criminal violence include (but are not limited to): the Taliban in Pakistan; both Sunni and Shia extremists; various non-ideological criminal thugs; and, other non-state actors. Second, security operations conducted by agencies of the Pakistan state have had measurable success in addressing this environment of generalised criminal violence.
I acknowledge that the applicant stipulated at the second hearing that he did not accept the country information reports which suggested a demonstrable decline in generalised violence in Pakistan generally or Khyber Pakhtunkhwa in particular. I also acknowledge the applicant’s submissions about specific incidents of terrorist atrocities over time in Pakistan. These atrocities are accounted for appropriately in the country information to which I have referred above, and which were discussed with the applicant personally at the second hearing. On balance, persuaded that the country information showing a demonstrable decline in secular violence and terrorist outrages should be preferred to the applicant’s subjective assessments.
Regardless, I note that under s.5J(1) of the Act (and the previous Convention provisions from which the definition is drawn), while there can be no legal presumption of state protection,[13] there is some authority for the proposition that an asylum seeker in Australia will bear a practical burden of establishing that protection is lacking.[14] I further note that the Supreme Court of Canada stated in Canada (Attorney-General) v Ward (Ward) that in the absence of a state admission as to its inability to protect its nationals, clear and convincing evidence of a state’s inability to protect must be provided.[15] The Court continued: [16]
Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus … it should be assumed that the State is capable of protecting a claimant.
[13]A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999). E.g. Koe v MIMA (1997) 74 FCR 508, Thiyagarajah v MIMA (1997) 80 FCR 543 at 567, MIMA v Prathapan (1998) 86 FCR 95, MIMA v A (1998) 156 ALR 489 (Nicholson J, 9 April 1998) and MIMA v Kobayashi (unreported, Federal Court of Australia, Foster J, 29 May 1998).
[14]E.g. SZBJH v MIAC [2007] FMCA 1395 (Scarlett FM, 3 August 2007) at [43] and SZIRA v MIAC [2007] FMCA 1082 (Nicholls FM, 7 June 2007) at [32].
[15][1993] 103 DLR (4th) 1 at 23.
[16]Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1 at 23.
In MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[17] Accordingly, I have proceeded on the basis that the Pakistan state ‘is capable within its jurisdiction of protecting [the] applicant’.
[17](2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.
The relevant assessment of state protection in relation to a complementary protection assessment for the purposes of s.36(2B)(b) is differently framed and the assessment of the available standard of protection in a receiving country is on the basis of ‘international standards’.[18]
[18]MIAC v MZYYL (2012) 207 FCR 211 at [36]–[37].
Nevertheless, the dispositive consideration relating to this aspect of the applicant’s claims is not the adequacy of state protection with respect to generalised violence within Pakistan. What appears to be dispositive in this instance is the reference to ‘systematic… conduct’, which reflects the jurisprudence about the meaning of persecution. For example, in Chan v MIEA, McHugh J, in the context of the previous legislative framework, stated:[19]
The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention. (emphasis added)
[19]Chan v MIEA (1989) 169 CLR 225, per McHugh J at 429-430. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.
The body of case law that has subsequently developed around his Honour’s use of the expression ‘systematic conduct’ in that case is instructive.[20]
[20]See for example Mohamed v MIMA (1998) 83 FCR 234, Abdalla v MIMA [1998] FCA 1017 (Burchett, Tamberlin and Emmett JJ, 20 August 1998), Chopra v MIMA [1999] FCA 480 (Lee, Whitlam and Weinberg JJ, 23 April 1999), Haji Ibrahim v MIMA (1999) 94 FCR 259 at [25], MIMA v Hamad (1999) 87 FCR 294. In MIMA v Hamad, the Full Federal Court stated at [17]: ‘The phrase “systematic conduct” can be, and often is, used in two senses – either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established.’ The Court stated that McHugh J had used the phrase in the first sense in Chan. In Haji Ibrahim, the Full Federal Court similarly observed at [25] that the word ‘systematic’ may be used in two alternative senses: ‘One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal’. This analysis was not disturbed on appeal to the High Court: MIMA v Haji Ibrahim (2000) 204 CLR 1.
In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan was not intended to mean that there can be no persecution for the purposes of the Convention unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random.[21] His Honour held that:[22]
It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic”.
[21]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
[22]Ibid at [99].
The question of whether certain conduct is ‘systematic’ is distinct from the qualitative assessment which is required to determine whether conduct amounts to ‘serious harm’. In VSAI v MIMIA, Crennan J stated that where conduct shown to be serious harm falls to be assessed as to whether it is ‘systematic conduct’ (in that case by reference to the former legislative framework), it would be wrong to require the applicant to show anything more than that it is deliberate or pre-meditated, that is, motivated. It would not be necessary to show that the conduct is widespread or frequently recurring. However, her Honour observed that frequency or regularity may be relevant to determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low level harm.[23] Similarly, also with reference to the previous legislative framework, the Full Federal Court observed in SZTEQ v MIBP that ‘systematic’ is used in the same way that ‘discriminatory’ is used – to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.[24]
[23]VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53].
[24]SZTEQ v MIBP [2015] FCAFC 39 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) at [72]. See also SZTIB v MIBP [2015] FCAFC 40 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) and BZAFM v MIBP [2015] FCAFC 41 (Robertson, Griffiths and Mortimer JJ, 24 March 2015). Note that these comments are obiter.
The statutory test does not displace the general proposition that a single act may suffice, as long as it is part of a course of systematic (in the sense of non-random) conduct. While HajiIbrahim relates to an earlier legislative formulation, it remains law insofar as the meaning of ‘systematic’ is concerned.[25] The term ‘systematic’ should, therefore, be taken to mean ‘non-random’ in the sense of being deliberate, pre-meditated or intended. It is not necessary that conduct be regular, organised or methodical.
[25]VQAD v MIMIA [2003] FMCA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].
Given that generalised violence evident in Pakistan is by definition random and perpetrated by unrelated criminal organisations, it lacks the requisite systematic quality that gives rise to protection obligations under the Act.
With reference to the complementary protection assessment at s.36(2(aa) of the Act, the qualification at s.36(2B)(c) provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’. Although differently framed, this qualification bears some similarity to considerations relating to assessing whether the harm feared in a country is systematic and discriminatory.
The Federal Court’s view is that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[26] In SZSPT v MIBP the Court held that, while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s.36(2B)(c) applied because it was no different from the risk faced by the population generally.[27]
[26]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[13]. An application for special leave to appeal this aspect of the judgment was dismissed by the High Court: SZSPT v MIBP [2015] HCASL 114 (Kiefel J, 18 June 2015). See also comments of the court to similar effect in: the judgment at first instance in SZSPT v MIBP [2014] FCCA 1388 (Judge Raphael, 1 July 2014) at [15] (the provision would apply in a situation of ‘universal danger’, but not where the situation was ‘worse for a person of [a particular] ethnicity’); SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49] (risk must be ‘faced by the individual personally in light of the individual’s specific circumstances’); SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [24] (risk must be ‘particular to’ the individual); SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013) at [43] (risk must be faced ‘in light of [the applicant’s] specific circumstances’).
[27]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]–[14].
The Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[28] This approach was also taken in MZAAJ v MIBP to the risk of harm from inadequate medical treatment.[29] Similarly, in SZTES v MIBP, the Court held that a risk faced ‘personally’ is one that is particular to the individual and is not attributable to his or her membership of the population of the country, or shared by that population group in general.[30] In BBK15 v MIBP the Court held that the ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s.36(2B)(c) to apply.[31] These cases make it apparent that where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population, s.36(2B)(c) applies.
[28]Ibid at [11]–[15]. Contrast SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013), where the Court endorsed a submission by the Minister to the effect that where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, this may disclose a sufficiently real and personal risk: at [34], [49]; however, these obiter comments should not be followed as they are inconsistent with other authorities including the appellate level judgment in SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). Nonetheless, in CLJ15 v MIBP [2018] FCA 1638 (Kenny J, 31 October 2018) the Court held that the Tribunal did not commit a jurisdictional error by incorrectly adopting the more generous approach endorsed in SZSFF as opposed to that in SZSPT: at [50]–[51].
[29]MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.
[30]SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [23]–[24], citing SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013). In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719 (Wigney J, 17 July 2015).
[31]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].
Accordingly, to the extent that the applicant’s claims can be characterised as being based on a well-founded fear of harm in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to the TTP, various non-ideological criminal thugs and other non-state actors, they do not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
COVID-19
It is acknowledged that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Pakistan generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.
Accordingly, circumstances in Pakistan arising due to the COVID-19 pandemic do not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CUMULATIVE ASSESSMENT
Having regard to all the written evidence and the applicant’s evidence at hearings, assessing his claims cumulatively in light of the foregoing findings relating to those claims and their various integers, I find that the applicant’s claims do not rise to the level of either serious or significant harm required under either s.36(2)(a) or s.36(2)(aa) of the Act.
Relocation
I note that it is not necessary to consider relocation where a decision-maker has found that there is no well-founded fear of persecution.[32] Thus, I do not have to decide the issue of relocation given that the decision in this instance can be reached on an alternative basis, making the issue of relocation immaterial.[33]
[32]Sabaratnasingam v MIMA [2000] FCA 261 (Whitlam, Lehane and Gyles JJ, 10 March 2000) at [13].
[33]Alibanovic v MIMA (unreported, Federal Court of Australia, Hill J, 15 September 1998) at 5. See also Chenafa v MIMA [1999] FCA 1432 (Tamberlin J, 13 October 1999) at [14]; Chehaily-Soby v MIMA [2001] FCA 880 (French J, 4 July 2001) at [24]. We note that, in SZQSS v MIAC [2012] FMCA 31 (Nicholls FM, 20 January 2012) at [123]-[133], the Court, while not finding error, was critical of the Tribunal unnecessarily making alternative relocation findings.
CONCLUDING PARAGRAPHS
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).
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).
100. 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 criteria in s.36(2).
DECISION
101. The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Colin Huntly
MemberATTACHMENT - 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
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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