1715239 (Refugee)

1715239 (Refugee) [2022] AATA 1348 (4 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715239
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Lilly Mojsin
DATE:4 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 4 March 2022 at 11.00 am
CATCHWORDS
REFUGEE – protection visa – Pakistan – actual or imputed political opinion – fear of the Taliban – membership of the Awami National Party (ANP) – volunteer health worker – family planning and contraceptives – polio vaccination – Lady Health Workers (LHW) – credibility concerns – voluntary return to country – race – ethnic Pashtun – particular social group – women or young girls in Pakistan – Pashtun female children born in Australia – Taliban’s influence in Swat Valley – discrimination – access to health care services – access to education – lack of local language skills – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 10, 36, 48, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Selvadurai v MIEA & Anor (1994) 34 ALD
Randhawa v MILGEA (1994) 52 FCR 437 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 June 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who then claimed to be citizens of Pakistan, applied for the visas on 22 June 2016. The delegate refused to grant the visa on the basis that applicants are not persons in respect of whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to her application for review.
The Tribunal determined it was reasonable to hold a hearing by Teams video having regard to the nature of this matter and the individual circumstances of the applicants, who had access to Teams video. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The applicant responded to the invitation to hold a hearing on 11 May 2021. The applicant indicated she would attend the hearing arranged by video and the 2^nd applicant and 3^rd applicant would not participate in the hearing. The applicants responded to the question ‘Do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation’ by stating ‘No’.
At the commencement of the hearing, held on 12 May 2021, the applicant confirmed that she could hear and see and that she understood the interpreter. I was able to interact with the applicant and interpreter during the hearing. I advised the applicant that if she could not understand what I was saying, or if she could not understand me, she should advise me. All parties were able to maintain appropriate communication throughout the proceedings.
At the conclusion of the Tribunal hearing, the applicant’s migration agent opined that the hearing by Teams video was not conducted by consent and the Tribunal could not see the applicant clearly nor could the Tribunal see the applicant’s body language. I noted that I could see the applicant clearly and I advised that I do not assess the truthfulness of an applicant based on their body language. I also noted that the applicant had not complained that she did not understand the interpreter during the hearing and the adviser had not indicated during the course of the hearing that the applicant could not hear the proceedings. The adviser stated he was concerned that the applicant’s children were not able to be seen by the Tribunal and asked if the Tribunal wished to see them. I advised the applicant’s adviser that it was not necessary for the Tribunal to see the applicant’s children and I was satisfied that they existed.
The Tribunal arranged to hold a 2^nd hearing on 15 July 2021, again by video due to the COVID lockdown. The applicant did not consent to 2^nd hearing being held by video . The applicant wrote in her hearing response as follows:
I cannot participate in the online interview as it was not convenient for me and my daughter on the last occasion. I prefer in person. My experience from the last interview was that video conference or hearing by telephone is not effective.
The 2^nd hearing was set down for 19 January 2022. Due to resurgence of COVID in NSW the Tribunal wrote to the applicant changing the scheduled hearing from a face to face hearing to a video hearing.
I explained to the applicant that the NSW government had a stay at home order and that face to face hearings were not possible at present. The applicant confirmed her agreement with the video hearing.
At the 2^nd Tribunal the applicant was reminded that she should advise the Tribunal if she did not understand the Tribunal or the interpreter or if she thinks she was misunderstood. The applicant did not advise the Tribunal during the 2^nd hearing that she did not understand the interpreter or that she had been misunderstood.
At the conclusion of the 2^nd hearing the Tribunal spoke to the applicant’s daughters. The applicant advised the Tribunal that she communicated with her children in English and she understood English. The children advised the Tribunal that they did not want to go back to Pakistan.
The Tribunal had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant was also provided with an opportunity to provide further written submissions post-hearing and the applicant availed herself of the opportunity providing a lengthy submission after the 1^st Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In a submission to the Department and a statutory declaration dated 21 June 2016 the applicant claims as follows:
- The applicant fears for her life based on her involvement with family planning advice and actively defying the wishes of the Taliban.
- The applicant's family have faced ongoing struggles in response to the Taliban’s influence in Swat, Pakistan. The applicant was shut out of school due to her gender. Elders from the village found her attendance at a coeducational school to be inappropriate for religious reasons. The applicant persisted with self-study at home.
·In December 2014, the Taliban demonstrated their commitment to the war on education by killing 132 children at a school bombing in Peshawar.
·In the 2007 invasion of Swat, the applicant's family offered their home to the Pakistani army to use as a firing station. After spending 3 years in an internally displaced person's refugee camp, the applicant and her family returned to their house. They were at risk of punishment as they 'cooperated' with the army in the battle against the Taliban.
·The applicant's brother has also been involved in political activism. He was directly threatened to be beheaded by the Taliban, due to his membership in the Awami National Party [ANP]. The Taliban carries out target killings against members of the ANP as they have an opposing political ideology. The applicant later joined the ANP, she had a long-term fear of, and opposition to, the Taliban.
·Humanitarian work and aid agencies are frequently targeted by the Taliban as they are considered to be spies, or working in conjunction with their enemies, the government. In 2013, the NGO Support with Working Solutions’ 7 aid workers were ambushed and killed in broad daylight. Prominent international NGO World Vision also had six of its Pakistani workers killed and were forced to suspend all operations in the country.
·'Family planning' and contraceptives are considered to be a radical defiance to the Taliban. The use of contraception is viewed by some as being against the teachings of the Qur'an. Various Imams who support contraception have received death threats via anonymous phone calls and letters. In 2009, experts correctly predicted that the Taliban's zealous opposition to contraception would be used as an alleged reason to launch further attacks on health centres .
·The applicant obtained a job as a volunteer in the health sector of [Organisation 1]. She was assisting in child vaccinations and family planning. It was part of her duty to go door-to-door and talk with Pashtun women to use contraceptives. She worked for [Organisation 1] and UNICEF supplied vaccinations and birth control pills. Her job was to go to the families and provide them with the information about the family planning and vaccinations. It was just awareness and trust-building meetings. Because she was a local woman they would trust her more than the foreign workers. Her role was also like a public relations contact.
·The applicant's leadership role in the education and provision of family planning tools for rural women was frowned upon. Because of her tireless advocacy for the rights of women, the Taliban became aware of the work of the applicant, which forced her to flee for her life on two occasions. In 2013, the applicant received an anonymous call demanding that she stop poisoning the minds of Pashtun families. She was accused of being a missionary and having a 'different agenda'.
·In 2015 the applicant returned to Pakistan to continue her rural health outreach work, as she felt it morally imperative to do so. The Taliban approached her family home and ordered that her father stop her activities as she was 'brainwashing' women. The men threatened to kill the applicant and declared this to be the final warning. Three days after the Taliban came to the applicant's home, the applicant and her friend [Mr A] were attacked on the job. [Mr A] was shot dead before the applicant's eyes.
·Since this incident, the applicant's immediate family and family-in-law have abandoned her. Her father disowned her. The applicant has no source of family support or social network to fall back on in Pakistan. Generally, it is not socially safe and acceptable for women to live alone in the rural context.
·The Taliban attack also worsened the applicant's relationship with her husband, which had been shaky as a result of her health work. After the first visit back to Pakistan, her husband called her an 'evil woman' and aggressively blamed her for causing problems and creating danger for the family.
·Women in Pakistan are economically, socially and politically oppressed by systemic patriarchal inequalities. The applicant is unable to rely on the government for protection from these systematic attacks and persecution.
·Her role as a rural health outreach worker has made her a key target for the Taliban for multiple reasons. Namely: working for an NGO, promoting the use of contraception, advocating for the rights of women and herself as a worker, and refusing to stop these actions upon request of the Taliban.
The applicant’s statutory declaration dated stated that in March 2011, she obtained a job as a volunteer in the health sector of [Organisation 1]. She was assisting in child vaccinations and family planning. She joined the ANP because she was influenced by her brother [Mr B] who was a university student.
It was part of her duty to go door-to-door and talk with Pashtun women to use contraceptives. She was working for [Organisation 1] and UNICEF supplied vaccinations and birth control pills. Her job was to go to the families and provide them with the information about family planning and vaccinations. It was just awareness and trust-building meetings. Because she was a local woman, they would trust her more than the foreign workers. The applicant also assisted villagers by getting them volunteer jobs through [Organisation 1].
On 24^th December 2013 the applicant received an anonymous call telling her that she should stop poisoning the minds of Pashtun families.
In January 2015, her relationship with her husband was not on good terms In February 2015, she started working again as volunteer for the same organisation which she had worked before doing the same kind of duties. She was going house to house talking with families and young girls as the middle woman to convince the women of her village and outreach villages to consider contraceptives and vaccinations. Her husband's family was again against this activity.
On 20 March 2015, Taliban men came to their family house and asked about her. Her father opened the door and the Taliban man said that he wanted to speak with him. They told her father that he should stop her from her activities and this was the last warning. If she continued with her political activities she would get killed by Taliban. After that her father said that she should go back to Australia. He said that they did not want her to live in their house anymore.
On the 23 March 2015, they were walking towards a family in the village of [Village 1] through the wheat field and a Taliban man shot at the applicant and her friend, [Mr A] who was shot to death.
On the 24 March 2015, the applicant travelled to Islamabad where she stayed for 10 days as it was dangerous for her to stay in the village.
In early 2016, the applicant met a Pakistani woman in the playground in [Suburb 1] and she advised her to apply for protection in Australia. She will not be safe in Pakistan especially now that her family and her husband's family have turned against her due to her political activities.
In a statutory declaration of 22 March 2017 the applicant stated that:
·She feared harm in Pakistan because of her membership of the Awami Party and work with the Pakistani government, UNICEF and UNI ICR which involved going door to door teaching Pashtun women about vaccinations and birth control.
·Her residence in Australia will increase her profile and enmity with the Taliban
·She is shunned and disowned by her own family and that of her husband removes any protection she may have had in the country and makes her an open target for attack for the Taliban without fear of reprisals. Her father disowned her, told her she was no longer his daughter and was not allowed to live in his house anymore. He told her to return to Australia. Her husband's family told her she was not welcome to stay with them either and that she should have listened to them and not continued her work with the local women.
·During a return visit in 2015 she went from house to house talking with families and young girls in small villages such as [Village 2], [Village 1], [Village 3], [Village 4], [Village 5] and [Village 6], encouraging them to consider contraceptives and vaccinations. She and her friend were shot at and her friend was killed
·She believes that she is a target of the Taliban for her work that she intends to continue to do.
At the 1^st Tribunal hearing [T1], held on 12 May 2021, the applicant confirmed that her children were born in Australia. She has obtained Pakistani passports for her children and Pakistani registration cards for them. The applicant is married, not yet divorced. She is living with her husband, he is a student.
The applicant completed her middle school education in [Area 1] Pakistan. She came to Australia with a student visa, she did not complete any studies in Australia. She went to various community organisations and they told her she could not study as she did not have a permanent visa to study. At the moment she attends English classes once a week. She never studied in Australia, except for community classes.
Asked what involvement she had in ANP, she said that she joined Awami to fight for rights of women. She was a member of the party and raised her voice for the right of women. She volunteered herself going from house to house telling women to go from house to house. Asked if she attended meetings, she said that she sat in party meetings in Mingara. She did not have a position in the party. Her brother was also a member. She was a member and was siting with them in the meeting.
In regard to her work, she said that she did her job as a volunteer for the party going from home to home and doing work in polio vaccination and supplying drugs for family planning. She did the volunteering work on behalf of Awami party. She was volunteering and working for Awami. She would go to the hospital, see the doctor, get medication and give it to women. Asked about the training she was given, she said that she did training with the doctor to give medications and how to do vaccines.
Asked what her position was called. She said she was member of Awami party and a volunteer.
Asked where the finances came from to supply the medicines, she said that they would get from the hospital and “the doctor would give us help”.
Asked if she had any references for this work, she said that she was shot and there was firing and she was not able to get anything. But she could get a reference letter, she said she would get them from the doctor. The name of the doctor was [Dr C] and [Dr D]. The doctors were working at [Area 1] government hospital.
I asked how many people were working for the doctors. The applicant said that she and 3 friends, there were other people working too. This was organised by Awami with the doctors. These doctors were treating villagers and polio vaccines. She gave polio vaccines and dispensing tablets. She would also tell them to keep good care of themselves and bring up one or two children. She went with her best friend who did the same work as she did. She was not supervised by any other person.
People in the community did not like them going house to house. It was free. Both she and her friend worked for nothing.
I put that she claimed she was harmed and threatened by Taliban but she returned back to Pakistan. She said that she returned because she was missing her family and she was not in a position that they will try to harm her. Asked why she continued to do volunteer work when she returned, as she had been threatened and harmed, she said the women knew of her return and she was very happy to help out as women cannot go outside. I put to the applicant that her return twice to Pakistan indicated she had no fear of harm. She said that she was thinking she could help these women, but they came to her father’s house and threatened her father. When she saw her friend die and she was injured and fractured her finger, she said “now no more”.
I asked what she feared now about returning to Pakistan, she said that she fears harm from the Taliban as they have put her name on “the list”. These were the Taliban and they want that women should not come out of the house and they want to impose their own religion. They want people who come from other countries and have their own agenda and want to spoil the conditions there.
The applicant explained that the media does not show the conditions of where she is from, it is a mountainous area.
I put to the applicant that the Taliban are no longer in Swat. She disagreed and said her father said they are still there. She communicates with her father on the phone. She is in contact with her family. I put that they appear to have disappeared. She said they hide in the mountains. She said the army were in their house. She fears the Taliban after the death of her friend.

I put to the applicant that the information before me did not suggest that the Awami party were involved in any health care initiatives in Swat and these were organised by the Pakistani government through various programs. She said that they were doing other procedures as well.
I discussed the National Programme for Family Planning and Primary Health Care, using Lady Health Workers [LHW] who received 15 months of training to provide family planning, counselling and immunisation. The applicant said that their area is far flung and people are really poor and doctors get medication and dispense medications for free. I put that untrained people cannot administer injections. She said that they were trained by the doctors. She said they were trained by doctors for 12 months.
She said the doctor trained them and trusted them. They were given the training to administer drugs and clean the area and give tablets. I put to the applicant that this program did not appear to be reported anywhere. She responded that these doctors also work in other places. There were no LHW in their area. There were nurses working in the hospitals.
The applicant said that LHW worked in the cities but not in the villages in the mountains. Their group were trained by doctors and they went from home to home for the benefit of the people and not for any money. They were well off.
Her parents are still working. Her mother does household duties and her father takes care of properties. I put that she is not estranged from her family. She said they lived in a giant family system. There were about 50-60 in the house. I put that she is able to return to her family. She said that the problems are from the Taliban, who will not leave her alone. She is afraid of the Taliban because one of her friends was killed by them and if she returns, they will kill her. She fears for her kids as to what they will do. Once one is on their list, they will come and get you. Asked why she was put on the list, she said that they saw her personally with the other lady, she has to take care of kids and cannot go out of the house.
I put that children can go to school now, there is nothing to prevent them. She responded that they cannot go to school in Pakistan and they encourage boys and not girls. They do not want to go to Pakistan.
She has a lot of fear from the Taliban as they want to kill her and she wants a good education for her children. Her children do not speak Pashto. She fears Taliban and does not want to go there and she cannot continue her education in Australia.
The applicant’s adviser opined that the applicant was a volunteer and this work is common in mountain regions of Afghanistan and Pakistan. His client is sincere and very honest.
The applicant said that she could not sleep and she had depression.
A post hearing submission, dated 20 May 2021, stated that
the applicant’s daughter is a member of the following social groups “school age girls", "girls living in rural areas", "married women living without their husbands" or "women and girls living in rural Pakistan". This is not an exhaustive list. Further, women and girls in Pakistan are recognised as a particular social group. International protection is provided when the applicant's state of nationality has failed in the duties it owes to its population.
The Tribunal needs to consider what may happen to the applicant and the two girls if the application is unsuccessful and they are required to leave Australia before the end of their Bridging Visas, that is, 35 days after a decision. They cannot apply for a Student Visa as dependents of [the applicant’s husband] because they are s.48 barred from lodging a valid application. Section 48 of the Act stops someone from lodging a valid application if they do not hold a substantive visa and have been refused a visa. There are some exemptions but none apply to the applicant. There is no other visa for which they can apply and will be required to leave Australia and return to Pakistan.
Although the little girls did not make specific claims at the time of application, they remain applicants in their own right. They are now older and in primary school and have claims as girls in Pakistan and school-age girls in Pakistan, which are both particular social groups within the context of the Refugees Convention. The Tribunal should consider their situation now, not at the time of lodgement in August 2016.
In the case that the applicant and the two little girls are sent back to Islamabad, what will happen in the reasonably foreseeable future? ls it not reasonable in all the circumstances for them to reside in a major city such as Islamabad, Lahore or Karachi. They would be vulnerable attempting to live in a large city with no family protection. [The applicant] has no experience of living in a city in Pakistan. She has no relatives to support her. All her family live in the countryside. A vulnerable, single mother on her own will would quickly become a victim of serious harm. This means they will be forced to return to the parental family home or the husband's home in the Swat Valley.
The Tribunal also should consider the reasonably foreseeable consequences of [the applicant] and the little girls returning to live in the Swat Valley. The girls were born in Sydney and do not have local language skills. They will easily be identified as "outsiders". Their education, if at all available, will be hampered by the lack of local language skills. They face the prospect of having no access to education or being denied access by tribal tradition.
They are all at risk of discrimination and serious human rights abuses. Women and girls face discrimination in Pakistan and the authorities do little or nothing to enforce an acceptable level of protection. [The applicant] will not receive protection from domestic violence and will be denied legal and economic rights given to men. The girls may be denied the opportunity to attend school. They may be forced into an early marriage at the age of 11 or 12. The laws on child marriage of girls do not offer effective protection and are often ignored or without consequence, according to the human rights reports.
Khyber Pakhtunkhwa lacks a comprehensive law addressing domestic violence. Women were victims of various types of societal violence and abuse, including so called honor killings, forced marriages and conversions, imposed isolation, and used as chattel to settle tribal disputes. Women faced legal and economic discrimination. The law prohibits discrimination based on sex, but authorities did not enforce it. Women also faced discrimination in employment, family law, property law, and the judicial system.
The most significant barrier to girls' education was the lack of access. Public schools, particularly beyond the primary grades, were not available in many rural areas, and those that existed were often too far for a girl to travel unaccompanied. Despite cultural beliefs that boys and girls should be educated separately after primary school, the government often failed to take measures to provide separate restroom facilities or separate classrooms, and there were more government schools for boys than for girls. The attendance rates for girls in primary, secondary, and postsecondary schools were lower than for boys. Additionally, certain tribal and cultural beliefs often prevented girls from attending schools.
Despite legal prohibitions, child marriages occurred. Federal law sets the legal age of marriage at 18 for men and 16 for women. According to UNICEF, 21 percent of girls were married by the age of 18. In rural areas, poor parents sometimes sold their daughters into marriage, in some cases to settle debts or disputes. Although forced marriage is a criminal offense, in many filed cases prosecution remained limited.
The applicant’s adviser referred to DFAT Country Information Report 2019 and US State Department Report and submitted that the applicant and her girls, based on the US State Department and DFAT reports, face a real chance of persecution as women and girls in the reasonably foreseeable future. The girls face a bleak future in their education, employment, marriage, social relations, family relations and dealings with the authorities. This is not speculation but the reality facing them on return to Pakistan in the reasonably foreseeable future. There may be a reluctance to find that all women and girls are at risk of harm in a particular country. But the DFAT report, which the Tribunal must give significant weight, states that "women and girls face a high risk of discrimination and violence" and that "Women who are economically disadvantaged, culturally or geographically isolated are particularly vulnerable, and lack access to support services.in Pakistan". Pakistan is a failed State when it comes to the rights of women and girls, and the human rights reports indicate the situation is far worse outside the main cities, which is where the applicant and her daughters will be residing. The adviser submitted that this must come within the real chance test of persecution in Pakistan for the Convention reason of a particular social group of women and girls, or any of the other groups identified above or may be identified by the Tribunal.
At a second Tribunal hearing [T2] held on 19 January 2022, I explained to the applicant that the NSW government had a stay at home order and that face to face hearings were not possible at present. The applicant confirmed her agreement with the hearing. The applicant confirmed she was not from Punjab.
I confirmed with the applicant that she had administered polio injections in 2013 and in 2015.
I put to the applicant that she had stated in a statutory declaration of 21 June 2016 that she obtained a job as a volunteer in the health sector of [Organisation 1] and UNICEF. In a statutory declaration of 22 March 2017, she said that she worked with the Pakistani government, UNICEF and UNHCR, as a volunteer rural health outreach worker working for an NGO. I explained that she told the Tribunal, at T1 hearing, that her job was as a volunteer, on behalf of the Awami party, going from home to home and doing work in polio vaccination and supplying drugs for contraception and advice for family planning. I put that this information was inconsistent. She responded that she tried her best to work with ANP for rights of women and female children education and so she joined ANP for these reasons. When girls are 16 years they are married.
I put to the applicant that I did not have any information before me that the ANP supported or assisted or ran programs in the Swat valley to distribute medicines and contraception to women in this area. These programs were run by the Pakistani government. She responded these medications were distributed by rural health centre and contraception. Husbands do not give many rights to women.
I put to the applicant that on 20 August 2015 Pakistan introduced injectable polio vaccines[1]. Previously, oral polio vaccine (OPV) had been used by Pakistan as part of the global polio eradication efforts. I put to her that she left Pakistan in April 2015 so that she was not in Pakistan when polio injections were introduced so that she could not have administered polio injections after being trained by 2 doctors, as claimed. She responded that in our time we were administering polio vaccinations using drops and administered to children. She had 3 girls working with her then.
[1]
I put to the applicant that the Department decision indicated that she departed Australia [in November 2013] and returned [in December 2013] and departed Australia again [in January 2015] and returned [in April 2015]. I put that she does not claim to have suffered any form of discrimination in employment, family law, property law, and the judicial system when she resided in Pakistan. As she returned there twice whilst living in Australia this indicated she had no fear of harm for any reason in Pakistan when she returned Pakistan. She responded that she was in danger because when shots were fired, she and her friend fell down on the ground and when Taliban heard the villages cry out, they ran away. In 2013 when she received a call the Taliban threatened her. Her father pushed her out of the house and he is in danger and cannot support her anymore. Once again in 2015 shots were fired and she realised Taliban were after her.
I put to the applicant that her statutory declaration of 21 June 2016 she declared that UNICEF supplied vaccinations and birth control pills and her job was to go to the families and provide them with the information about the family planning and vaccinations. It was just awareness and trust-building meetings. I put that she told the Tribunal, at hearing, that her job was injecting the polio vaccination and supplying drugs for contraception and advice for family planning. When this inconsistency was put to her, she responded that she was doing both works, information advice about their future life of being a housewife and giving birth. She was also supplying condoms and giving polio injections and it was her passion working with the party and the health centre.
I discussed with the applicant independent evidence that girls are no longer barred from education in Swat and schools have been and are being rebuilt. She did not agree, stating that the conditions of females in their village has not changed. They are supposed to marry at an early age and are not treated the same as males.
I put that a university has been established[2], the University of Swat, it is home to over 4 000 regular and over 15 000 private students. These numbers rank the University of Swat the biggest university in Pakistan in terms of the student numbers for both on-campus and off-campus students. She said they did not have university when she was there. In her village, [Area 1], there is no school for females and people do not encourage their girls, there is only a boys school. I explained that the independent evidence before me indicated that education for girls has improved in the Swat Valley[3] where funds have been provided by the Malala Fund and the Big Heart Foundation’s Girl’s Child Fund for a school for girls.
[2]
[3]
I put that DFAT indicated the security situation has improved in Swat. While there are still security concerns, Swat has rebuilt infrastructure and children are returning to school. She responded that the Taliban members in prisons are set free, the security situation is not good now, they are the same as other people. Anybody who talks against them and no one can distinguish who is Taliban who is not.
I put to the applicant that her claims that the girls will be the victims of honour killings is pure speculation. She responded that a girl is raised in this environment. Her daughter does not wear the clothes of the area as she dresses in pants and shorts. When she returns to Pakistan, she will wear those clothes and she will be the victim of an honour killing for that reason. She also said that her daughter was born here and is an Australian and will be targeted. When she talks to her parents, her daughter hears her talk to her parents and her daughter says that she is scared and she does not want to go back to Pakistan. She is going through a hard time taking care of her child.
As for her daughters being forced into an early marriage at the age of 11 or 12, she said that she is sure as she knows the people and the customs of the area, they do not let the children chose their freedoms and their rights. She wants a good life for her girls. She wants to give them a life, as in Australia, and not face the same consequences as she did.
I asked the applicant why she would have to live in Islamabad or Karachi, as claimed by her advisor, in his submission. She said that “you do not know the culture and customs of Taliban, when someone is put on a list, they will find them anywhere, chop off hands and heads”. She is on a wanted list by the Taliban. She is on the list because she was working with [Organisation 1] and ANP. They want women to stay at home and if they talk against their ideologies ie cutting off heads etc and saying it is not real Islam, they want to get rid of those people. They have come to know she has come from Australia and was brainwashing the women, just like English women. That is why the Taliban put her on the list.
She cannot go to live with her parents because her father told her “the things that you are doing are making danger for us, if you do not leave the work you cannot stay with us”. She could not leave her work, it is her passion.
The applicant said that she wants a permanent place in Australia. Her mental health is deteriorating due to the pressure of the visa, she has depression and her children also are scared of the Taliban, they wake up with nightmares.
At the conclusion of the hearing, I asked the applicant and adviser if there were any further submissions. No further submissions were made.
The applicant provided a letter from her employer, to the Tribunal, stating that she works as a cleaner.
Post hearing the Tribunal received 2 references from the ANP attesting to the applicant being a member and activist.
Also submitted was a Certificate from Health Department Government of Khyber Pakhunkhwa Expanded Programme on Immunization certifying the applicant has made an immense contribution to the National Immunization Day Campaign launched on 2 March 2011 to 23 March 2015 in [Area 1] Swat.
REASONS AND FINDINGS
On the basis of her Pakistani passport, I accept that the applicant is a national of Pakistan and not national or citizen of any other country. I accept that the applicant does not have a right to enter and reside in any country other than Pakistan. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Pakistan is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
The 2^nd and 3^rd applicants were born in Australia. Section 10 of the Act prescribes that a child born in Australia is taken to have entered Australia on the date of their birth. Although the applicant has not provided copies of passports for her daughters, the applicant attests to their having obtained Pakistani passports and I am satisfied therefore that the country of reference for the protection visa assessment for the applicant’s daughters is Pakistan.
I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
I have considered a medical report from [Dr E]. I accept that the 1^st applicant suffers from depression and post traumatic stress disorder and takes medication. Her medical information before me does not suggest that the 1^st applicant was unable to participate effectively in a hearing or that she had issues with memory. The applicant was able to answer all questions asked and she did not at any time suggest that she was unable to continue with the scheduled hearing.

The applicant is a Pashtun Sunni Muslim, from [Area 1] Swat, who claims fear of returning to Swat Pakistan because she fears the Taliban because of her membership of the Awami Party [ANP], her parents having given their house for use by the Pakistani army in 2007 and for her work as an Awami Party member who volunteers to give children polio injections, provide contraception to women and advise them about limiting their children and family planning. She claims having been attacked on a number of occasions by the Taliban and she claims persons who have spent time in a western country would be subject to discrimination or violence, the Taliban will know she has been in a western culture and will target her for harm. She states that the Taliban view NGO workers as spies.
She also claims harm as a woman in Pakistan. She states that women in Pakistan are socially and politically oppressed by systematic patriarchal inequalities. She claims that she is estranged from her family because of her volunteer work. She fears returning to Pakistan as she fears the Taliban. Her children, who do not speak Pashto or Urdu, would be unable to obtain an education in Swat were she to return.
The Awami National Party (ANP)[4], which has a heavy Pashtun support base, is strongly anti-Taliban and also faced considerable electoral violence in 2018, including during the 2018 polls. ANP was the largest Pashtun nationalist party in Pakistan between 2008−2013 with influence lying in the Pashtun dominated areas in and around Khyber-Pakhtunkhwa. They governed the province from 2008–2013.
[4] DFAT Country Information Pakistan 20 February 2019
[Area 1] Swat is a district in Khyber Pakhtunkhwa, Pakistan. The Taliban in 2006[5], based in Imam Dherai, took control of the entire Swat Valley and held power until the Pakistani military retook the area in 2009. Nearly a decade later, the soldiers remain. Military checkpoints dot the roads. Residents say soldiers occupy government buildings in their towns and villages. A Taliban suicide bomber entered the restricted area of the armed forces’ unit and blew himself up, killing 11 soldiers and wounding 13 others in the first big attack after 2013 in Pakistan’s north western Swat Valley.
[5]
A key feature of the Taliban militancy was a systematic attack on people suspected of behaviours that were in violation of the Taliban’s interpretation of the principles of Islam. The Taliban publicly beheaded residents accused of crimes and hung their bodies in the busiest square of Mingora, the district capital. They prohibited polio vaccination campaigns for children, schooling of girls, and women working outside the home. Women working in schools and health centres have either been fired or killed, and those in non-governmental organisations have been forced to stop work. Men were killed for shaving their beards, listening to music, and watching movies. Over the three year siege of Swat, Islamic militants destroyed 165 girls’ schools, 80 video shops, and 22 barber shops. They also destroyed infrastructure, including bridges, police checkpoints, and a generating grid station that provided electricity to 1.8 million people.
I accept that applicant's family have faced ongoing struggles in response to the Taliban’s influence in Swat, Pakistan. Women, when the applicant was young, were unable to obtain an education. I accept that the Taliban bombed a school in Peshawar in 2014.
Community Health Workers have a large number of different titles, according to WHO[6] in Pakistan they are called Lady Health Workers [LHW]. Lady Health Worker Program (LHWP)[7] was established in 1994, with the goal of providing primary care services to underserved populations in rural and urban areas. LHWs receive a salary of about $343 per year and are not supposed to engage in any other paid activity. LHWs are each attached to a public health clinic and are supervised on a monthly basis by an LHS. LHSs are then regularly supervised by the LHWP district coordinator and assistant coordinator. Pakistani government is the largest funder of the LHW. Approximately 100,000 LHWs are deployed throughout all five provinces of Pakistan. These workers are attached to a local health facility, but they are primarily community based, working from their homes.
[6]
[7]
In Swat, during 2006-9[8], the Taliban used a combination of fatwas (religious decrees), threats, and physical assaults. Three fatwas were instituted that had serious implications for the role of LHWs in the community. Women reported being named and shamed on radio broadcasts and subjected to threats of kidnapping, forced marriages, and in some cases death. As a result of such treatment, many resigned, resulting in a near collapse of the programme during the height of Taliban control of Swat. Radio was used to turn the population against the LHWs. Taliban would go to the LHWs’ houses and knock on the door. The Taliban visited almost all the houses as they were from the same villages and mohallas [neighbourhoods] as the women and asked them not to work as an LHW. Taliban were hostile to the concept of family planning, believing it was a part of a great conspiracy by Americans and the West generally to eliminate Muslims and Muslim identity. They also believe that contraceptives promote vulgarity, obscenity, and extramarital sexual relations and are against polio drops. As the Taliban expanded and strengthened their hold, the programme suffered drastically. About 15% of LHWs officially resigned, and many others simply stopped working.
[8]
Pakistan[9] is one of three countries in the world where endemic transmission of wild poliovirus continues to occur, and the poor security environment across the country affects health workers: targeted killings of polio health workers is common (international media estimates at least 70 polio workers were killed between 2011 and 2015 alone) and continued in 2018.
[9] DFAT Report Pakistan 2019,
DFAT Report Pakistan 25 January 2022 states that the TTP [Tehreek-e-Taliban Pakistan] has denounced polio vaccinations and regularly carries out attacks on polio workers, as does IS [Islamic State, also known as Daesh, ISIS or ISIL]. These groups promote conspiracy theories about polio vaccinations, such as claiming they are a Western plot to sterilise or otherwise harm Muslims. Militant groups killed more than 100 people in attacks on polio workers between December 2012 and September 2016. Attacks were less frequent in 2020 but there was an uptick in attacks in 2021, especially in Khyber Pakhtunkhwa. A policeman was injured and two gunmen shot dead during an attack on polio workers in Peshawar in September 2021. It was the second such attack in a week and occurred simultaneously with other similar attacks. Polio workers also experience frequent harassment and societal violence because of their work. DFAT assesses polio workers face a moderate risk of violence and societal harassment due to their work.
The applicant claims she was a volunteer health worker assisting with polio virus vaccination and contraception and as a consequence was threatened with harm by the Taliban.
I do not accept that the applicant is a witness of truth for the following reasons:
Firstly, the applicant‘s evidence in regard to her volunteering work is inconsistent. The applicant stated in a statutory declaration of 21 June 2016 that she obtained a job as a volunteer in the health sector of [Organisation 1]. Her role was also like a public relations contact. In a statutory declaration of 22 March 2017, the applicant said that she worked with the Pakistani government, UNICEF and UNHCR, which involved going door to door teaching Pashtun women about vaccinations and birth control. The applicant told the Tribunal, at hearing, that her job was as a volunteer, on behalf of the Awami party [ANP], going from home to home and doing work in polio vaccination and supplying drugs for contraception and advice for family planning. I put to the applicant that this information was inconsistent. She responded that she tried her best to work with ANP for rights of women and female children education and so she joined ANP for these reasons. When girls are 16 years they are married. I reject her explanation, she has not explained the inconsistent information.
I put to the applicant that her statutory declaration of 21 June 2016 declared that her job was to go to the families and provide them with the information about the family planning and vaccinations. It was just awareness and trust-building meetings. She had told the Tribunal, at hearing, that her job was injecting the polio vaccination and supplying drugs for contraception and advice for family planning. When this inconsistency was put to her, she responded that she was doing both works, information advice about their future life of being a housewife and giving birth. She was also supplying condoms and giving polio injections and it was her passion working with the party and the health centre. I reject her explanation that she was doing both, I am of the view it is a late invention made to overcome the inconsistent evidence.
I have considered a Certificate from Health Department Government of Khyber Pakhunkhwa Expanded Programme on Immunization certifying the applicant has made an immense contribution to the National Immunization Day Campaign launched on 2 March 2011 to 23 March 2015 in [Area 1] Swat. I place no weight on this certificate for the following reasons:
§The applicant’s claims at hearing are that she was a volunteer worker for the ANP and not the Health Department of the Khyber Pakhtunkhwa government.
§The Certificate does not state what the applicant’s contribution was, it is not in accordance with her evidence to the Tribunal.
§There is no issue date of the certificate and no address for the Health Department.
§Additionally, [from] February 2012 [to] November 2013 and again [from] December 2013 [to] January 2015 the applicant was in Australia.
Secondly, I have no independent evidence before me to suggest that the ANP supported or assisted or ran programs in the Swat valley to distribute medicines and contraception to women in this area. Polio vaccination programs were run by the Pakistani government and resumed in 2009[10] after Islamist militants, who began their reign in the Swat valley in 2006-9 in 2007 had declared that vaccinating against the potentially crippling disease was un-Islamic because it was a foreign-funded campaign.
[10]
LHW are funded in all provinces of Pakistan. When put to the applicant that medicines could not be dispensed in the manner claimed as a ‘volunteer’ of the ANP as these activities were undertaken by LHWs, she said that where she came from there were no LHWs as it was a mountainous region. I accept that during the 2006-9 siege by the Taliban LHWs were attacked and there were few left in the region. According to the Pakistan Polio Eradication Programme[11] the programme implements high quality vaccination campaigns that aim to reach all children under the age of across Pakistan. These campaigns are implemented by 260,000 frontline health workers who go door-to-door to make sure that each and every child in Pakistan is administered the polio vaccine that protects them from the crippling poliovirus.
[11] >
I have no independent evidence before me to suggest that the ANP had any involvement in polio vaccination campaigns or dispensing contraceptives or contraceptive advice. When put to the applicant that I do not have any information before me that the ANP supported or assisted or ran programs in the Swat valley to distribute medicines and contraception to women in this area and that these programs were run by the Pakistani government, she responded these medications were distributed by rural health centres and contraception. Husbands do not give much rights to women. The applicant’s explanation is inconsistent with her evidence. I place no weight on her explanation. I do not accept that the ANP organised volunteers, such as the applicant, or trained and managed community volunteers to administer/volunteer/public relations contacts for the polio vaccination campaigns.
Thirdly, independent evidence before me[12] indicates that routine childhood immunisations are delivered at fixed immunisation sites, with some outreach services through vaccinators. An article in The Lancet[13] explained that oral polio vaccine (OPV) is delivered by four doses of OPV (at birth, 6, 10, and 14 weeks of age. Repeated, concerted door-to-door immunisation campaigns, called supplementary immunisation activities [SIA], were used to try to increase OPV coverage. The supplementary immunisation activities were household-level campaigns organised by the Pakistan National Polio Programme and usually last 5 days (3 days to visit all households, with 2 days for return visits to households with initially absent or missed children) with door-to-door OPV administration to children younger than 5 years of age by health workers. Supplementary immunisation activities had been particularly challenging in parts of the country affected by insurgency and insecurity, with groups such as the Taliban limiting access to populations, disinformation leading to refusal of OPV, and attacks targeting polio workers. In particular, in the high-risk areas of northwest Pakistan and several slums of Karachi, polio workers had been subjected to several attacks and assassinations, with bans imposed on polio vaccination activities by the Pakistani Taliban and other extremist groups, as well as general insecurity impeding the access of polio programme teams to such communities. I do not therefore accept as plausible that the applicant received training on how to inject polio vaccines provided by 2 doctors who seemingly organised their own distribution of polio vaccines with assistance of or on behalf of ANP.
[12]
[13]
Fourthly, the applicant claimed that she administered polio injections in 2013 and again in 2015 when she returned to Pakistan. She confirmed her claim at the commencement of the 2^nd Tribunal hearing. I put to the applicant that on 20 August 2015 Pakistan introduced injectable polio vaccines[14]. Previously, oral polio vaccine (OPV) had been used by Pakistan as part of the global polio eradication efforts. I put to her that she left Pakistan in April 2015 so she was not in Pakistan when the polio injections were introduced and she therefore could not have administered polio injections after being trained by 2 doctors, as claimed. She responded that “in our time we were administering polio vaccinations using drops and administered to children”. She had 3 girls working with her then. I reject her explanation. I am of the view it is a late invention made to overcome her inconsistent evidence.
[14]
Fifthly, the applicant claimed that she will suffer discrimination in employment, family law, property law, and the judicial system when she returns to Pakistan. She returned there twice when whilst living in Australia. Her return, to Pakistan twice, indicates a lack of a subjective fear of harm for any reason. When put to the applicant, she responded that she was in danger because when shots were fired, she and her friend fell down on the ground and when the Taliban heard the villages cry out they ran away. In 2013 she received a call the Taliban threatened her. Her father pushed her out of the house and he is in danger and cannot support her anymore. Once again in 2015 shots were fired and she realised Taliban were after her. I reject her explanation. The applicant’s return to Pakistan in 2013 and in 2015 indicates a lack of a subjective fear of persecution. I find therefore that the applicant did not suffer discrimination in employment, family law, property law, and the judicial system when she returned to Pakistan in 2013 and 2015.
Sixthly, the applicant in her PV, stated that her family and her husband’s family have turned against her. The applicant told the Tribunal, at hearing, that she communicates with her father on the phone. She is in contact with her family. When put to the applicant at T1 that she is able to go back to her family, she did not respond. I am of the view that the applicant’s claims that her family and her husband’s family have turned against her is an invention made in order to enhance her claims to the visa sought.
I have also considered 2 references from ANP. A reference from [Mr F] dated 2 November 2021, President Awami National Party, [District 1] Swat attests to the applicant having been an active member of the ANP since 2011. This reference attests to the applicant being a member, activist and volunteer for the party and the community. The reference also attests to the applicant having received life threats and being targeted by extremists groups but provides no information as to when and where this occurred. The applicant arrived in Australia in 2012. She returned to Pakistan [in] November 2013 for 34 days and departed Australia again [in] January 2015 and remained in Pakistan for 73 days returning to Australia [in] April 2015. The author does not provide any details of what activities the applicant undertook for the party or when these activities were undertaken for the party. The author does not provide any information as how he has obtained the knowledge of what and when the applicant did for the party or his position in the party in the period of 2013 to 2015. Therefore, I place no weight on this reference.
Reference from [Mr G], General Secretary ANP Swat, dated 4 November 2021, attests to the applicant since 2011 being a women’s activist and social worker, participating actively in party meetings and election campaigns working mainly for Pashtoon women’s rights. As the applicant has been living and working in Australia, and could not have participated in party meetings and election campaigns other than for a short period of some 107 days between 2013 and 2015 and as the author has not provided any information of the dates of her involvement, I place no weight on this reference.
I am satisfied the applicant is not a witness of truth, who has created her claims in order to obtain the visa sought. I reject the applicant’s claim that she worked in any capacity regarding polio vaccination of children in Pakistan and as the applicant claims that whilst she attended to polio vaccinations, she also gave contraceptive pills and advice, I reject her claim she gave contraception and advice to women in Pakistan. It follows that as the applicant was not involved in any health care work in polio or contraception, I reject her claim that she was threatened, attacked or harmed by the Taliban or anyone else for this work. It follows that I do not accept that the Taliban killed her friend whilst they were working/volunteering or that she was threatened by the Taliban via telephone calls, that her father and family fear harm from the Taliban or that she is on a Taliban watch list. As I do not accept that she worked in any capacity on behalf of the ANP and as I do not accept that she is a witness of truth, I also reject her claim she was a member of the ANP or that she attended ANP meetings or that she will rejoin the ANP on her return.

(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.
…

[2022] AATA 1348

4 March 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies