1716824 (Refugee)

[2019] AATA 344

1716824 (Refugee) [2019] AATA 344 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716824

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Luke Hardy

DATE:20 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 20 February 2019 at 10:40am

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – member of Awami National Party – involvement with NGO activities – opposed to Taliban’s policies – no real risk of significant harm in the reasonably foreseeable future – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

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

Application history

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant] is a citizen of Pakistan.  He arrived in Australia [in] June 2007 as a crew member of [a vessel]. [In] June 2007 he deserted his ship, reportedly along with [other] crew members.

3. [The applicant] made his first application for a protection visa to the then-Department of Immigration and Citizenship on 13 July 2007. The delegate decided to refuse to grant the visa on 9 October 2007. The applicant sought review of the delegate's decision and the Refugee Review Tribunal (RRT), differently constituted, affirmed the delegate's decision on 8 January 2007. [The applicant] sought review of the Tribunal's decision by the then-Federal Magistrates Court and on 19 November 2008 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.

4. The Refugee Review Tribunal, differently-constituted, again affirmed the delegate’s decision on 9 July 2009. [The applicant] again lodged an application to the Federal Magistrates Court which upheld the RRT’s decision on 26 November 2009. An application by [the applicant] to the Full Federal Court and subsequently to the High Court was also unsuccessful. [The applicant] lodged Ministerial applications in 2008 and 2012, all of which were unsuccessful.

5. Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235, [the applicant] made a further application for a protection visa on 4 October 2012. He claimed that due to his involvement in opposing the Taliban in his home region of Swat Valley in the Khyber Pakhtunkwah region of Pakistan he would be targeted upon his return to Pakistan. He claimed to have been involved in the Awami National Party (ANP) and to have worked for non-government organisations (NGOs) and to have provided clinic services at his home and to have been a “social worker” and an “activist”. He referred in this application to his daughter having been killed as a result of an explosion in 2008. He referred to material that had been the subject of negative credibility findings in the past: in particular, a purported death certificate relating to the purported death of his daughter.

6. The Minister’s delegate refused to grant the protection visa on 13 August 2014. [The  AAT, differently-constituted, affirmed the decision to refuse [the applicant] a protection visa on 18 September 2015.

7. Section 48A of the Migration Act imposes a bar on a non-citizen making a further application for a protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone.

8. In the decision of 13 August 2014, the delegate assessed [the applicant] against both refugee and the complementary protection criteria. However, the previously-constituted Tribunal assessed his claims only against the complementary protection provisions. According to SZGIZ, a person who had previously applied for and been refused a protection visa on the basis of one of the criteria in s.36(2) is eligible to lodge a further valid application on the basis of the other criterion.

9. [The applicant] sought judicial review of the previously-constituted Tribunal’s decision and [in] November 2016, the Federal Circuit Court (FCC) remitted the matter to the AAT. It is now before the presently-constituted Tribunal.

   Remittal issue

10. The issue on which the matter was remitted involves a purported s.438 certificate, referred to in a “Disclosure Decision Checklist” at f.149 of [the applicant]’s Immigration (now Home Affairs) Department file. The FCC describes the certificate as having been “given by the [Department’s] Secretary to the [previously-constituted] Tribunal,” but the presently-constituted Tribunal has not been able to locate any such document on any of [the applicant]’s extant files. Adding to the mystery, the “Disclosure Decision Checklist” at f.149 of [the applicant]’s Immigration file contains a prompt for the certifying officer to cite which folios of the file are subject to the non-disclosure certificate, but this has been left blank.

11. However, indicating that a copy of the certificate did exist at some stage, the FCC was evidently in a position to quote the certificate in its judgement:

    I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 51-54 inclusive of file number CLF2012/*****. The disclosure of this information would be contrary to the public interest because it relates to internal working documents and business affairs.

12. The FCC ruled that the previously-constituted Tribunal fell into error when it did not give [the applicant] the opportunity to address the Tribunal on the validity of the certificate and whether, even if the certificate were valid, the Tribunal should exercise the power under either or both ss.438(3)(a) or (b). The Court found that the certificate alluded to in in [the applicant]’s Immigration Department file covered a Minute prepared by the Department summarising [the applicant]’s application history and claims. The Minute also referred to some claims having been found by decision makers to lack credibility. The Court ruled that even though the Tribunal’s duty was to assess the material before it for itself, given that the assessment in the Minute was made in respect of the same claims to be determined by the Tribunal, it was not possible to say that it could have made no difference to the Tribunal’s decision.

13. On 4 January 2019, [the applicant]’s adviser wrote to the presently-constituted Tribunal, asking: “Can you advise whether there is any Section 438 or 375 A certificates in the file and if so, can you provide us the summary of the contents in the Certificate.” (The reference to s.375A relates to certificates in migration cases excluding protection visa applications.)

14. As no copy of any certificate could be located in any file, the Tribunal enquired in writing with the Department requesting a copy of the certificate alluded to in [the applicant]’s Department file. The Department replied to the Tribunal saying that it could not locate the certificate.

15. The Tribunal duly informed [the applicant] through his adviser of this on 25 January 2019, the day after the Tribunal hearing: “Please be advised that the Department has informed [us] that [it] cannot locate any 438 or 375A certificate on the Departmental file.”

16. All that any of the relevant parties have, then, is what was read or copied into the FCC’s judgement record. The FCC, having regard to the Federal Court in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, concluded that the certificate it saw was invalid since it the documents to which it referred related to “internal working documents and business affairs”, insufficient to give rise to a claim of public interest immunity in respect of those documents. For that reason, the certificate was not valid and s.438 did not operate in respect of them. The FCC proceeded to treat the issue as follows:

    18.       The first step in determining [whether the Tribunal fell into jurisdictional error in connection with the certificate] is to consider the nature of the documents that were the subject of the invalid certificate. The documents were described as folios 51 to 54 in the Departmental file relating to the applicant. Those folios are in evidence. They consist of a minute dated 8 November 2012 and addressed to the “Director, Ministerial Intervention (NSW & VIC), Department of Immigration and Citizenship” concerning the possible referral of the applicant’s case to the Minister for a decision as to whether to exercise his discretion under s.48B of the Act.

    19. Section 48B of the Act empowers the Minister to give notice that s.48A does not apply to a particular person. If that notice is given, that person may make a further application for a protection visa on the basis of the same criteria that formed the basis of an earlier application.

    20.       The minute refers to a request from the applicant’s [agent]. It then sets out a number of matters that were both known to the applicant and before the Tribunal in other documents that were not subject to any certificate under (or purportedly under) s.438 of the Act.

    21.       These matters were:

    a)         the applicant’s personal details and then a chronology of what are described as “key immigration events”;

    b)         a summary of the claims made by the applicant in his application made in 2007;

    c)          a decision of the Refugee Review Tribunal in respect of the applicant’s first protection visa application;

    d)         a reference to a decision of this Court remitting the matter to the Refugee Review Tribunal;

    e)         the review by the Refugee Review Tribunal after the matter was remitted; and

    f)          a summary of the claims made in the protection visa application lodged on 4 October 2012.

    22.       The minute also contained an assessment of the request for intervention by the Minister. That material was not contained in anything else before the Tribunal and was not given to the applicant.

    23.       The assessment includes statements that there was no credible evidence to support certain of the applicant’s claims and that those claims were unsubstantiated. The view is expressed by the author of the minute that there was “no credible new information that would enhance [the applicant’s] chances of making a successful PV application”.

    24.       The minute is signed by its author and the Director of Ministerial Intervention (NSW & VIC) who also indicated her agreement with the assessment in it.

    25.       Even though the Tribunal’s duty was to assess the material before it for itself, and make its own findings of fact, given that the assessment in the minute was made in respect of the same claims to be determined by the Tribunal, it is not possible to say that it could have made no difference to the Tribunal’s decision. For that reason, the applicant ought to have been given the opportunity to address the Tribunal on the validity of the certificate and whether, even if the certificate were valid, the Tribunal should exercise the power under either or both sub-ss.438(3)(a) or (b). The Tribunal’s failure to do so constituted jurisdictional error.

17. The document at ff.51 to 54 of the Department’s file is indeed an internal Minute generated for the purpose of facilitating the Department’s business in dealing with a request for Ministerial discretion under s.417 of the Act: a process outside of the jurisdiction of the Tribunal. Since it is an internal working document, I agree that the purported certificate certifying that it is non-disclosable information is not valid.

18. The Department could have re-issued the certificate had it regarded the Minute as information warranting non-disclosure certification; to date it has not, and with what appears to be good reason given the nature of the information.

    The Tribunal hearing

19. [The applicant] appeared before the presently-constituted Tribunal on 24 January 2019 to give oral evidence and present arguments. He was accompanied by his adviser, a registered migration agent. The hearing was facilitated by an interpreter in the Pashto-English medium.

20. From the outset, the issue of the missing certificate was discussed. Treating the missing certificate as an invalid one, the Tribunal adjourned the hearing for around twenty minutes to give [the applicant] and his adviser time to examine at the Department’s Minute as located at ff.51 to 54 of the department’s file. The Tribunal also used this time to catch up with correspondence on the issue with the Department. Since the Minute was not the subject of a valid certificate, there was no need to issue [the applicant] or his adviser a.s440 non-disclosure direction.

21. As the presiding member in this matter, I assured [the applicant] and his adviser on resumption of the hearing that in no way at all would I rely in my decision on any of the content of the Minute. Whereas that document states that there was “no credible evidence” to support certain of [the applicant]’s claims before other decision makers, prior to his having been heard by the previously-constituted Tribunal, and whereas the view of the author of the Minute was that there was “no credible new information that would enhance [[the applicant]’s] chances of making a successful PV  application,” these comments were nothing more than the contents of a gloss or summary from someone who had not even met [the applicant] and who had not given him a chance to comment on that gloss or summary. I assured [the applicant], as the presiding Member, that the Minute and its contents could not and would not have any weight at all in my deliberations, that I would have no regard to them and that I must make my own findings on the facts in his case after providing him with an opportunity to give oral evidence. I assured him that I must not simply or blindly adopt the findings of other decision makers, let alone any whose findings have been quashed in the courts. I put to him that his oral evidence as given to previously-constituted Tribunals, however, is evidence before me, whereas evidence before delegates assessing his claims at the primary stage of his protection visa applications is not before me unless it has been submitted by him in writing, and no such evidence has been submitted in writing in this case, notwithstanding a request from the Tribunal to submit a copy of the primary decision in this matter.

22. I asked [the applicant] and his adviser if they had any concerns after having read the Minute and after having heard my assurances. Through his adviser, [the applicant] indicated that he did not, welcoming my assurances and saying that if concerns did arise he would raise them in writing in a post-hearing submission.

23. As happens, [the applicant] did raise the matter in a post-hearing submission. He acknowledged that I had provided him with an opportunity to examine the Minute but

    failed to provide [the] Section 438 Certificate to us. I now request the Tribunal to provide [the] Section 438 Certificate. The reason is, my … advisor requested the Tribunal to provide the Certificate well before the hearing. The Tribunal did not provide [it] to us before the hearing. My … advisor advised me recently that the Tribunal sent an email confirming that [it] could not locate my section 438 … Certificate. Without seeing the Certificate, I would not [be] able to confirm whether [it] is a valid one or not [referring here, apparently, to paragraph 25 of the FCC’s judgement] and whether there are any other materials or information covered by the said Certificates [sic]. I request the Tribunal to provide its response […] in case […] the Tribunal has any concerns whether I would face a real risk of harm or not.

24. Going back to paragraph 25 of the FCC judgement, the judge found that even if the s.438 certificate in this case were valid, [the applicant] should have the opportunity afforded under s.438(3)(a) and (b):

    (3)  If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

    (a)  may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

    (b)  may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

25. The facts are that the s.438 certificate in this case is invalid, that I nevertheless thought it appropriate to “disclose … the document [and its] information” to [the applicant] and his adviser, and that I did disclose it to them assuring them that I had no intention of, nor legitimate basis for, giving it any weight at all. As to the question about the certificate referring to any other documents, according to the content read into the record of the FCC’s judgement, it does not. I recall inviting [the applicant]’s adviser at the hearing, in any event, to peruse the whole of the Department’s file.

26. Relevantly, as my reasons below will show, I have made my own individual conclusions on the issue of [the applicant]’s credibility and in relation to all the facts before me.

    Proposed witnesses and evidence submitted before the Tribunal hearing

27. In a 21 December 2018 “Response to hearing invitation” form, [the applicant] advised that he would like the Tribunal to call two witnesses in Pakistan to give evidence in support of his case: [Mr A], current [office bearer] of [a] branch of the Awami National Party (ANP), described as being familiar with [the applicant]’s social and political background; and [Mr B], current [office bearer] of [a union council] in [Village 1], described as being aware of [the applicant]’s active social work background.

28. Then just prior to the commencement of the Tribunal hearing, at 10:30am AEST on 24 January 2019, [the applicant] presented a list of proposed witnesses with four additions to the above-cited list. One of these witnesses was available to speak by telephone from [a state in Australia] regarding [the applicant]’s association with the ANP’s Australian chapter. The other three all provided Pakistan telephone numbers: one was offering to provide similar testimony to that of [Mr A]; the next was a practicing lawyer, instructed by [the applicant] to provide an opinion by telephone “conforming [sic] the authenticity” of submitted documents including, apparently, the death certificate for [the applicant]’s daughter and a report to police from his brother; the third proposed witness was an employee of the hospital that registered the death of [the applicant]’s daughter, and was offering to speak to the authenticity of documentation registering her death.

29. I note, meanwhile, that a written statement from [Mr B], dated 2 December 2018, was submitted to the Tribunal on 16 January 2019. The statement, appearing under a Union Council [Village 1] letterhead updates an earlier statement of 2 December 2018 and states that previous office holders in the Union Council have all been replaced through regular elections over time. The statement adds that “the incidents [that] took place with [the applicant] are based on facts. [The applicant] is a Social Worker, Philanthropic [sic] and a man with ideology to work for the vulnerable community. He has offered his valuable services in the areas of Female Education and Polio Vaccination in [an] era of insurgency in Swat.” The statement goes on to say that [the applicant] made his house available as a first aid centre during a military operation in Swat and spoke up against Islamic extremists in the region. The statement lists names of prominent figures who were killed at some stage by the Taliban who, it says, are active all over Pakistan. [The applicant], in oral evidence was later to refer me to this list.

1. The same submission details instances of election campaign violence including the suicide bombing of a ANP election rally in July 2018 that caused the death of the son of an ANP leader. The submission also includes references to reports of attacks on the political process by violent extremists in other parts of Pakistan. Some reports show that a few ANP leaders in Pakistan have been targeted and even killed in years since the Taliban was driven out of the Swat region, although most of these instances occurred outside Swat. Still, there is evidence of some sporadic attempts to target ANP political candidates in Swat and other places, and a few of these attempts have led to fatalities amongst participants and passers-by. 

2. [The applicant] submitted a 7 January 2019 notice advising the file references for the death certificate issued for his deceased daughter at [a named hospital] in Swat.

3. I note that all the listed witnesses and others have submitted statements in support of [the applicant] in the past (see Refugee Review Tribunal file 1415550 at ff.10-17). In particular, two ANP Australia statements say that [the applicant] has been a member of that group since 2011 and attest to [the applicant] having been involved in the past with the ANP in [Village 1]. A 13 February 2013 statement from the ANP’s [Village 1] branch [office bearer] says that [the applicant] was an active political worker who spoke his mind against Taliban policies and who was targeted by the Taliban for opposing its ban on female education.

4. Prior to commencing the substantive part of the Tribunal hearing, I asked [the applicant] to say what he wanted his proposed witnesses to discuss. Generally, he said he was offering some of them as people capable of testifying to his past involvement with the ANP and with social work in Swat valley, and to his having been threatened and targeted for significant harm by the Taliban; and the others as witnesses to the authenticity of his documents, including the certification of his daughter’s death and a May 2010 report to police from his brother. I note the submission of the said police report at ff.14 and verso 15 of the RRT file 145550: in it, the brother said that unknown Taliban members had threatened his and [the applicant]’s life in calls to his mobile telephone and had demanded the [the applicant] return to Pakistan as soon as possible to face his fate, otherwise they would kill him (the brother) and all of [the applicant]’s children.

5. Having regard to [the applicant]’s wishes[1], I considered whether I would call any of the proposed witnesses. I put to [the applicant] at the beginning of the hearing that up to that point that I did not have any questions for the proposed witnesses, given that his colleagues in Swat and [Australia] had all attested in writing to what he said he wanted them to mention, and given, at this stage, that I did not know how a voice at the end of a telephone, even a lawyer’s, could provide document authentication except by telling me that a document is authentic and leaving me to weigh his words. I proposed that if these or other witnesses wished to speak in support of [the applicant], I would provide an opportunity for them further to do so in writing. I indicated that I was prepared, however, to revisit the witness issue later in the hearing, subject to issues arising in evidence.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   [1] 426: Applicant may request Tribunal to call witnesses

   The issues

6. The main issue in this case is whether or not [the applicant] is entitled to complementary protection in Australia.

7. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims and evidence

8. In his 4 October 2012 protection visa application form, [the applicant] claimed to be a widower since September 2006. He claimed to have last left Pakistan [in] July 2007. He also claimed at Q.34 of his protection visa application form that he did not travel outside of Pakistan before coming to Australia [in] June 2007. The information he gave was incorrect, however, as he obtained a passport in 2005 and was absent from Pakistan from December 2005 to November 2006, departing from Karachi. Countries he visited included [Country 1], [Country 2] and [Country 3]. He was back in Pakistan only three and a half months before departing again from Karachi [in] February 2007. He then travelled again [Country 3], apparently to join (or re-join) the [vessel], the [vessel] on which he arrived in Australia [in] July 2007. All this information is provided in the passport that [the applicant] submitted to the Department with his protection visa application. The incorrect information may be due to an error on the part of the person who assisted him in the completion of his protection visa application form, and I am not perturbed by this small discrepancy.

9. In his protection visa application form, [the applicant] claimed to be a liberal Muslim. He claimed that when he was living in Swat all men were forced by the occupying Taliban and its affiliates such as the TNSM to grow their beards. He claimed the Taliban tried to force his daughters away from going to school. He claimed he spoke out against this ban at a Friday prayer meeting. He claimed that in December 2006 the Taliban issued a statement to the effect that he and his daughters were to be killed. He claimed that in the same month some unknown people came into his house, stole his television and satellite dish. He also claims the unknown thieves also destroyed these items after stealing them, but it is not clear how he knew these items were destroyed since they were purportedly stolen and therefore removed from his sight. [The applicant] claimed that in order to save his life he left Pakistan and came to Australia “on a ship”.  He did not say what happened to his daughters at that time. He claimed that in 2009, the Taliban destroyed his house. He claimed that a friend was killed by the Taliban in January 2012. He claimed that his brother fled to [Country 4] and that the latter was still living in that country as at the time of the protection visa application. He later indicated that his brother returned to live in Swat.

10. Essentially, although his 4 October 2012 application can only be assessed legally on complementary protection grounds, [the applicant] was claiming that the Taliban would kill him for reasons of “political opinion”: because the Taliban considers him to be an “infidel”, due to his liberalism and views about female education, and also, since he has been living in Australia, a” Western spy”.

11. Meanwhile, [the applicant] claimed to the Department that his [surviving] [children] and his parents live in Pakistan, and that he had [a number of siblings] who had all been born there.

12. [The applicant] submitted to the Department copies of statements from [Organisation 1] attesting to his voluntary [work]. A 2012 statement from his local village defence committee says he left the area after the Taliban attacked his house in response to his views on vaccination and female education. He also provided an alternate but similar translation of his brother’s report to police in May 2010. Another Union Council letter, dated September 2012, reports that [the applicant] was threatened in the course of the 2006 “Talibanization” of Swat for setting up an immunisation post in his home and for opposing the Taliban banning of schooling for girls; it also reports the killing of two social workers in Swat “in the near past”.

13. [The applicant] submitted photographs in support of his claims about his house having been destroyed. A 12 May 2014 submission from [the applicant]’s adviser contains country information relevant up to the time of its completion. Some of its citations refer to Taliban activity outside of Swat, such as a 2013 reference to that group attacking a meeting of ANP members in Karachi, killing ten.

14. [The applicant] submitted to the previously-constituted Tribunal evidence of his membership of the ANP in 2006. He submitted a copy of a letter from [an ethnic community association in Australia]. The previously-constituted Tribunal also received a 15 August 2015 letter from the lawyer in Pakistan who was identified as being capable of verifying his documents. The letter stated that the lawyer was under instruction to verify the documents but needed more time to do so due to the late notice of the request and an intervening holiday. A further letter from the same lawyer, dated 26 August 2015, states that the author checked with the police in relation to reports to police from [the applicant] and from his brother in 2006 and 2007 respectively and viewed them as having been genuinely lodged as claimed. With regard to the death certificate that has previously been found to be false or unreliable, the lawyer said that the certificate contained a clerical error caused by haste during an armed operation in the vicinity of the hospital and that a corrected one had been issued. Documents including a purported corrected version of the death certificate and testimonial letters from various individuals attesting to the death of [the applicant]’s daughter [Ms C] as a result of a bomb blast were also submitted to the previously-constituted Tribunal.

15. [A named hospital] report dated 19 September 2008 states that [the applicant]’s daughter [Ms C] died [in] September 2008 after admission with serious injuries three days earlier.

16. Speaking to the issue of the original unreliable certification, and to the update purportedly correcting the alleged error in the original, [the applicant] showed me a photograph of a deceased [woman]. He said this was a photograph of his daughter. He explained that she and her mother were living in their house which was near an airport that was the subject of armed occupation dispute between the Pakistan military and Taliban fighters. He said his daughter was simply caught one day in the crossfire. He said he did not know to this day if an army explosive or a Taliban one had killed his daughter.  

17. On the evidence before me, I informed [the applicant] that, although there had been an anomaly in relevant documentation originally submitted, I was prepared to accept that [Ms C], one of his [daughters], died as described in 2008. It thus appeared unnecessary to hear from the lawyer or the hospital staffer on the subjects [the applicant] had said he wanted them to discuss.

18. I asked [the applicant] for more information about his surviving daughters. He said that [they] were now [age deleted] and married. Evidently they had not been killed or otherwise harmed by the Taliban subsequent to threats reported to police by [the applicant]’s brother.

19. I asked [the applicant] about the brother who received the warning from the Taliban in May 2010. In particular, I asked [the applicant] where that brother now resides, previous evidence having suggested that he had moved to [Country 4]. In response, [the applicant] said this brother had fled “for a time” after receiving the warnings he heard in 2010, but was now “back in Swat”.

20. [The applicant] referred to having other children when he said that only his “[boys]” had been able to go to school after the Taliban enforced their education policy in Swat from 2006 onwards. He said that his “other children” were also living now in Swat with his parents.

21. I asked [the applicant] why he could not return to Swat and live there with his family, all of whom had purportedly been subject to death threats back when the Taliban was in power there, but who were all still alive and getting on with their lives some five or six years since the Pakistani authorities reasserted their authority over the region. In response, [the applicant] said that as recently as 2015 people he knew in Pakistan who had been on the Taliban’s “target list” had been killed. I asked him if he had any evidence of this and he said he did not.

22. [The applicant] told me that he had been put on a Taliban “hit list” after saying what he said in public about the ban on girls attending school. He said he was also a target for having been a social worker involved in public health and for being a member of the ANP in Swat from 2002 to 2007. He said that he was one of nine people who had challenged the Taliban education policy. He said that some of the other eight had fled and some had been killed in 2011, 2012 and 2013. When I put to him that it seemed from what he was saying that the killings stopped in the year the government retook Swat, [the applicant] then said that in 2014 all of those who had not yet left were killed. He drew my attention to these individuals having been named individually in earlier evidence. I take him to mean the list of names in the 2 December 2018 statement from [Mr B]; however, [Mr B] does not say that any of these people were killed as late as 2014, as no dates are given. [The applicant]’s suggestion that they died as late as 2014 appears unsupported.

23. I raised with [the applicant] the potentially significant fact that there had been socio-political change throughout Swat and his province since around 2012 and 2013, as evidenced by much independent country information.[2] Whereas there are reportedly sporadic killings of some individual political figures, usually during election campaigns, the Pakistani authorities had reclaimed control of the region since around 2013, after attention was drawn to the Taliban’s 2012 shooting of then-schoolgirl Malala Yousefzai.[3]  Then, with all respect to his late daughter, I asked [the applicant] to explain how her death was relevant to his and his family’s protection prospects in the reasonably foreseeable future, given that the Taliban “hit list”, as he described it, belonged to a faction that had been pushed out of power and durably chased out of the region in which he lived. In reply, he said his daughter was killed “in 2009 [sic]” back when the Taliban was in power and, since then, his protection visa application case had not been finalised: “my case is here.” I asked [the applicant] again how past problems in Swat with the since-defeated Taliban might be relevant to his circumstances in the reasonably foreseeable future. In reply, he said there were to points: one, he lost his daughter for no reason; and, two, he used to have a good job but had to flee in 2007 because he was on a “hit list”. Essentially, [the applicant] did not satisfactorily argue how or why the harm that he suffered up to 2007 or any harm that his family members suffered up to the removal of the Taliban from his home region was indicative of a real risk of facing significant harm in the event of removal from Australia to Pakistan.

    [2] “The Taliban once ruled Pakistan’s Swat Valley. Now peace has returned,” The Washington Post, 9 May 2015,

    [3] “Killings target anti-Taliban leaders in Swat: Pakistani military has claimed 'complete control' over the region, but the bloodshed continues,” AlJazeera, 21 November 2014,

24. I asked [the applicant] about his ANP and NGO witnesses who evidently still live and operate in Swat. Since these people appeared to have stayed in the region, continuing their work, it seemed reasonable to ask why [the applicant] could not go back and resume his life there. [Organisation 1], for example, continues to administer and deliver projects in Swat.[4] The ANP, though not the prevailing party in Swat at this time, has been in years since 2012 and continues to be an active participant in the democratic process there.[5]   

    [4] [Source deleted].

    [5] “Swat: past results and upcoming electoral contests,” Daily Times, 20 July 2018,

25. [The applicant] said that his witnesses all came from wealthy families with higher profiles in the organisations in which he had just been a “worker”. He said they received more security from the government due to their higher profiles and could also afford private security. Then he said they all “want to escape” but cannot see a way of doing so. I asked [the applicant] how he had come to receive the information he was now providing about his witnesses, as none of them had suggested in their statements that they were facing threats or trying without success to leave Swat or Pakistan. [The applicant] did not address the question on its point: he said that he had had an opportunity to escape from Pakistan whereas “a few fellows died”. I put to him that he was digressing and that my question was about how he had come to learn that his superiors in the ANP and [Organisation 1] were trying to leave but unable to do so. Again, [the applicant] digressed: he said that many workers had been placed on a Taliban “hit list” (apparently in and prior to 2007). I put to [the applicant] that he was digressing from the point of my question which was about how these arguably more powerful and more connected individuals were less able to get away from Swat, even now, than he had been, but he failed for a third time to answer the question, which I then ceased to pursue. He said again that several people had been put on the Taliban “hit list”. Ultimately, he did not indicate that he had heard this from anyone but himself. I asked [the applicant] if these leaders had somehow avoided being included in the Taliban “hit list” and he said that they were included. This brought the discussion back to what appeared to me to be the more significant issue: the fact that in spite of having been placed on a Taliban “hit list” presumably back in the days when the Taliban used to rule Swat, they were all still in Swat working for their respective organisations which are also operating viably in their respective fields to this day.

26. Again, I asked [the applicant] to tell me why the individuals he had listed are all still back in Swat working for the ANP and [Organisation 1], and he again failed to address the question on its point: instead, he said that he verbally challenged the Taliban leader Fazullah “in the school ground” on the subject of education for females and was therefore placed on a “hit list”. He said he had also challenged the Taliban in relation to immunisation policy, his own home having been used as a vaccination site.

27. Eventually, [the applicant] said that he did not know why his ANP witnesses were unable to escape from Swat or Pakistan in spite of trying to do so. He then suggested that he had been placed on the “hit list” in his capacity as a “social worker” (with the [Organisation 1]). He suggested that he was unique in that not only was he an ANP member but also specifically a “social worker”, and that this was why it would be unsafe for him to return to Pakistan. The problem with this explanation is that when he purportedly spoke out in November 2006 against the ban on girls attending school, he would, as he claimed, have been articulating ANP policy, and according to him it would not have mattered if a social worker had said this or if just a parent said it. His evidence so far had been all about having been placed on the Taliban “hit list” for having expressed his pro-ANP, anti-Taliban political view. Ultimately, he did not provide a satisfactory oral argument as to why he could not rejoin all the other people alive and active today who had supposedly been designated Taliban targets back in 2006-2007.

28. I put to [the applicant] that by his evidence, ANP members and [Organisation 1] social workers previously included in the Taliban’s “hit list” now enjoy the protection of the Pakistan authorities in Swat and the surrounding region. I put to him that evidence of the departure of the Taliban as a power in the region can be seen in the restoration of schooling for girls there. In response, [the applicant] concurred about there having been a change in socio-political circumstances in his region, but said that it took until 2012-2013 for female education to be restored, too late for his surviving daughters.

1. In the event that he felt uncomfortable for any reason about returning to live in or around Swat Valley, I asked [the applicant] if he could not relocate to Karachi, where he had transited and evidently resided at least [temporarily], or Islamabad. In reply, he said that people who had fled to those places in the past had been targeted, and cited his brother as an example. I reminded him of his evidence to the effect that his brother had since returned voluntarily to live in Swat, and he then said that his brother is a member of [specified committee in their local Village]. I asked how being a member of such a committee made his brother better protected that the village his committee defends, and he said, “Even he is a target. If the Taliban gets a chance, he’ll be hit.” I put to [the applicant] that several years had passed over which, according to him, the Taliban had not harmed his brother and, in reply, he reverted to what the then-ruling Taliban in Swat had said they would do, years ago, if he tried to send his daughters to school: again, he digressed from the point I was asking him to address.

   Closing comments and oral submissions

2. I invited [the applicant]’s adviser to make closing comments. He said that [the applicant] continues to have an affiliation with the ANP through its Australian branch and that this is relevant to his protection prospects in Pakistan. Essentially he was indicating that his client [the applicant] was not merely a long-past affiliate with the ANP. On the evidence before me I accept that his affiliation with the ANP preceded and has continued since his arrival in Australia.

3. The adviser speculated that were I to call [the applicant]’s witnesses they might be able to give evidence about how they had been able to survive having been targeted by the Taliban. Having regard to [the applicant]’s original wish in making these potential witnesses available to give oral evidence, I suggested that [the applicant] had already acknowledged that the Taliban and its policies had been forced out of Swat in 2012-2013, albeit not without trying occasionally to disrupt socio-political processes through violent actions since then; in essence, he had provided an explanation as to why it was significantly safer for ANP members to reside and operate in Swat. I recall that he had also said that a significant factor in his case was not so much that he was an ANP member but that he was also a “social worker” with the [Organisation 1], but that agency has also viably operating in Swat in the years since the Taliban was ousted there. Having regard to [the applicant]’s wishes and interests, in respect of s.426(3) of the Act, I proposed that I would give time for these and any other witnesses to comment in writing on any of the issues the adviser was now raising; this included the issue raised by [the applicant] about his witnesses having less ability than he did to move away from Swat.

4. I provided two weeks following the closure of the Tribunal hearing for further submissions, the closing date being 8 February 2019. Included in this offer was a request for the adviser to let the Tribunal know if he needed an extension.

5. On 8 February 2019, the adviser emailed the Tribunal requesting an extension of time to 12 February 2019. This request was granted and submissions arrived at the Tribunal at4:17 pm on 12 February 2019.

   Post-hearing submissions

6. Included in the 12 February 2019 material were several news reports relating to violence in Pakistan, a statement from [the applicant]’s adviser and a statement from [the applicant] himself.

7. The adviser’s submission refers me to articles about discriminatory practices affecting the ease with which Pashtuns might find work or accommodation in places like Punjab and other places outside of traditionally Pashtun areas such as Swat and Peshawar. It also draws attention to reports about the shooting of an ANP leader in Northwest Pakistan in 2018 and the killing of an ANP party worker in Peshawar, 174 km from Swat, in January 2019.  Other articles refer to attempts by Taliban supporters to attack representatives of the army and political parties including the ANP.

8. I have discussed one aspect of [the applicant]’s statement earlier, being where he was asking about the s.438 certificate.  In the main, his statement deals with the issue of his proposed witnesses. Amongst other things, he said he wanted me to take evidence from his proposed witnesses so that they could corroborate his claims about what had happened to him in Pakistan and about his being involved with the ANP in Australia. Overall, I did not express any concerns about either of these factors and in fact took the step of telling [the applicant] that I accepted that his daughter had died when and in the circumstances claimed. I did not question that his house was destroyed or that he supported the education of girls or that the Taliban threatened him through his brother. He did not and does not require corroboration of these facts from his witnesses.

9. In his statement, [the applicant] said that the Taliban continues to harm anyone in Pakistan who challenges Taliban policy regarding the education of women. He said that if I had provided his witnesses an opportunity, they would have been able to provide “sufficient information about the [on-the-] ground situation in Pakistan and whether people like me would face harm from Islamic extremists which would have convinced the Tribunal whether there are substantial reasons to believe that I would face a real risk of significant harm now or in [the] foreseeable future if I returned to Pakistan and the Tribunal could have asked the relevant questions to assess whether my fear of harm is real or not.” [The applicant] said this after agreeing to take the opportunity over a two-week period to invite their witnesses to give their views in writing on any topic they saw fit to discuss.

10. No witness statements were submitted. No suggestions as to there being any obstacles preventing [the applicant] and his adviser from obtaining updated and detailed statements from potential witnesses was provided.   

11. On 18 February 2019, the Tribunal received the following submission from [the applicant]’s adviser by email:

    We refer to the above and provide following country information.

    Recent Country information confirms there is no significant changes in Country’s political and security situation.

    The Hindu Business Line, White House to Pakistan: Stop being safe haven to all terror groups, 15 February 2019, available at: [accessed 18.2.2019]

    UK Foreign travel advice - Pakistan , 17 February 2019, available at: [accessed 18.2.2019]

    US Department of state, Pakistan Travel Advisory, 13 February 2019, available at: [accessed 18.2.2019]

    Extracted relevant information in support of our applicant’s case we note:

    On 15 February 2019, The Hindu Business Line, in its news report entitled, White House to Pakistan: Stop being safe haven to all terror groups, noted:

    The White House has asked Pakistan to immediately end “support” and “safe haven” to all terror groups as it strongly condemned the Pulwama terrorist attack.
    Pakistan-based Jaish-e-Mohammad (JeM) has claimed responsibility for the attack in Jammu and Kashmir’s Pulwama district on Thursday that left at least 37 personnel dead and many critically wounded.

    “The United States (US) calls on Pakistan to end immediately the support and safe haven provided to all terrorist groups operating on its soil, whose only goal is to sow chaos, violence, and terror in the region,” White House Press Secretary Sarah Sanders said in a late night statement on Thursday.

    On 17 February 2019, UK Foreign travel advice - Pakistan , noted:

    Terrorists are very likely to try to carry out attacks in Pakistan. There’s a high threat of terrorism, kidnap and sectarian violence throughout the country, including the cities of Islamabad, Rawalpindi, Lahore and Karachi.
    …
    There have been a number of recent terrorist attacks in Lahore. At the present time, you should exercise caution travelling to and around Lahore. Busy public places and events are often targeted, including public transport, major international hotels, the airport, parks, shopping malls and religious sites. Government, military and law enforcement facilities are also targeted.
    …
    Terrorism

    Terrorists are very likely to try to carry out attacks in Pakistan. There’s a high threat of terrorism and sectarian violence throughout the country. The main terrorist threat comes from Tehrik-e Taleban Pakistan (TTP), an umbrella organisation of groups primarily based in the Federally Administered Tribal Areas (FATA), who have a mainly anti-state focus but also maintain, and have stated an intent to launch attacks on western interests. TTP conducts attacks throughout Pakistan. Their attacks mostly involve using Improvised Explosive Devices (IEDs), including suicide attacks.

    On 13 February 2019, US Department of state, in its advice entitled, Pakistan Travel Advisory, noted:

    Terrorist groups continue plotting possible attacks in Pakistan. Terrorists may attack with little or no warning, targeting transportation hubs, markets, shopping malls, military installations, airports, universities, tourist locations, schools, hospitals, places of worship, and government facilities. ...

    Terrorist attacks continue to happen across Pakistan, with most occurring in Balochistan and KPK, including the former FATA. Large-scale terrorist attacks have resulted in hundreds of casualties over the last several years.

    From the above we submit the following:

    a.     There is no constructive improvement in country’s political and security situation despite change of government.

    b.     Current government continues to harbour and provide safe heaven to the Islamic terrorists including terrorist engaged in cross border terrorism as well as engaged in terrorists activities in Pakistan.

    c.     Terrorist groups continue plotting attacks in Pakistan and terrorists are very likely to try to carry out attacks in Pakistan.

    d.     There’s a high threat of terrorism, kidnap and sectarian violence throughout the country, including the cities of Islamabad, Rawalpindi, Lahore and Karachi.

    From the above we submit that terrorists including Taliban and its allied forces and ISIS continue to have significant presence and network in Pakistan and they enjoy significant support from the Pakistani authorities despite the change of government in Pakistan. It is a clear indication that Taliban and other Islamic extremists are supported by the Pakistani government. We submit that the applicant  holds political opinion against the Islamic terrorists and continue to contact his political colleagues expressing his views will face significant harm in Pakistan. The evidence establish that since Islamic terrorists are supported passively and actively by the Pakistani government, he would not be able to get effective protection in Pakistan. We further submit that based on the evidence that Islamic extremists enjoy support from the Pakistani government which would help them to further establish their network and find  people whom they consider as their enemies or traitors.

    Based on the available most recent country information after the publication of DFAT report on Pakistan dated September 2017, we submit that the applicant will face significant harm and accordingly, we submit that Australia owes international obligation to protect the applicant under the Complementary protection ground.

12. Essentially, this submission argues that extremists seek from time to time to disrupt Pakistan’s socio-political environment and processes generally. The material does not appear to argue that ANP members and “social workers” are singled out, but that all manifestations of non-Islamist, non-Muslim fundamentalist activity is opposed by the extremist minority in Pakistan.

    Medical issues

13. I note that [the applicant]’s files contain some reporting medical issues including surgery that he has undergone in recent weeks. I have taken this into account. Overall, I am satisfied that [the applicant]’s health has not prevented him from giving meaningful evidence in this matter. 

    Findings in relation to s.36(2)(aa) of the Act

14. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

15. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

16. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

17. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

18. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

20. I accept that [the applicant] is a citizen of Pakistan, and thus find that Pakistan is the “receiving country” in this case.

21. I accept that [the applicant] was a member of the ANP for some years prior to his departure from Pakistan in early 2007. Noting that he was abroad for a significant period between mid-to-late 2005 and the end of 2006, I find that he was not very much present in Pakistan during the “Talibanization” of Swat. He would have had very little time during that process to show his active support for the ANP or his involvement in NGO activities such as with [Organisation 1]. However, I accept that as a father who sent his daughters to school he would at least have been assumed by the Taliban to be a liberal who was opposed to their ban on education for females. [The applicant’s] descriptions about when and where he spoke out against the Taliban’s education policy vary: in one instance, he claims to have said it at Friday prayer, suggesting the mosque was the location; at the Tribunal hearing he said he was speaking with others publicly in a school yard when the Taliban heard, or must have heard, his comments. Either way, I accept that he was opposed to the ban on girls’ school classes and that he became known for this. I also accept that his activities with [Organisation 1] and its immunisation initiatives could also have easily been noted given that the Taliban was fairly ubiquitous locally by the end of 2006. I accept that the Taliban’s views about opposition to its policies were extreme and that at the very least it would have broadcast its intention to take extreme action against people trying to block its agenda. I accept all this even though [the applicant] had very little time in which to say or do anything or even be seen in Pakistan during the “Talibanization” of Swat.

22. I note that [the applicant] did not leave Swat or Pakistan immediately after receiving the threat he claims to have attracted, but remained there for a further three months or more. He does not claim to have been harmed in that time, which suggests he found a way to be out of reach from the Taliban at least for a time. Whereas he claimed in his protection visa application that he left Pakistan in fear of his life by joining a boat, the evidence in his passport shows that he resumed his job as [specified occupation] returning to [Country 3] where he had previously travelled during 2006. It is hard to accept on the information available that he fled Pakistan in the face of imminent death as claimed. However, I accept that he had some subjective fear of significant harm at the time.

23. I give some weight to the fact that, in circumstances that were purportedly fire for [the applicant] and his family, he left his children behind in Swat in the care of his parents. I give some weight to the fact that none of his children were directly targeted by the Taliban after he left Pakistan. I accept that his daughter [Ms C] was killed in 2008 (not 2009 as he mistakenly suggested at the hearing), but I give weight to his testimony to the effect that she was caught in crossfire and that he could not rule out that an army explosive or a Taliban bomb might as easily have been what mortally wounded her at the time. I am not satisfied on the evidence before me that the death of daughter [Ms C] gives rise to a real risk of [the applicant] being harmed in any way.

24. I accept that [the applicant]’s brother reported to the police in May 2010 that the Taliban had threatened to kill him, [the applicant] and all their families including their children. I accept that he fled Swat for a time to avoid harm. However, I give more weight to the evidence to the effect that he voluntarily returned to Swat and joined [a local committee], which is part of the social structure involved in protecting the community there, and is still there unharmed, and to the fact that none of the persons purportedly covered by the threat were targeted by the Taliban.

25. I give some weight in this matter to the fact that the Taliban was driven out of Swat by Pakistan’s military and that the latter secured durable control and evidently effective protection of society there in and after 2012-2013. I give some weight to [the applicant]’s acknowledgement of this and, in particular, his recognition that this arguably significant and durable change in the fortunes of the people of Swat led to the restoration of education for girls and women at that time.

26. I give considerable weight to the time that has elapsed since the Taliban was driven out of power in Swat. Although there is evidence of sporadic attacks by religious extremists on people participating in the democratic process, including some ANP figures and supporters, such as in July 2018, there have been only a handful of such episodes in recent years whereas elections have been held in which the ANP was still evidently able to field candidates in around a dozen constituencies in the Swat region alone in 2018.[6]

    [6] “Swat: past results and upcoming electoral contests,” Daily Times, 20 July 2018, type="1">

27. Whereas I accept that [the applicant] has played a role in the ANP in Australia, and although he claims this may add to the Taliban perception that he is an infidel and foreign spy, I am not satisfied on the evidence before me that his activity with the ANP in Australia gives rise separately or cumulatively to a real risk of significant harm in Pakistan due to the significant change since 2012-2013 that saw the Pakistan authorities drive out the Taliban from Swat.

28. I give weight in this matter not only to the viability of the ANP in the socio-political landscape in Swat but also to the viability of NGOs like [Organisation 1].

29. I give weight in this matter to evidence from one of [the applicant]’s witnesses as to a healthy democratic process of electing party office holders in Swat. Overall, I give weight to the fact that [the applicant]’s proposed witnesses, all of whom have provided written evidence on occasions throughout this process, are at large in Swat contributing apparently unharmed to the life of their respective professions and organisational affiliations.

30. I am confident that I have not given any weight in this matter to other people’s reports or opinions as to [the applicant]’s credibility.

31. I note [the applicant]’s claims about discriminatory behaviour towards Pashtuns in some parts of Pakistan, but I am not satisfied that such treatment would affect him to any potentially significant degree in his home region. The mistreatment described in articles submitted by him relates mainly to recent practices in Lahore, which is located in Punjab. It mainly involves racial profiling of Pashtuns by authorities after a suicide bomb incident there. On the evidence before me, [the applicant] would not be obliged to reside in Punjab. I am also confident that [the applicant] could easily access Swat from Karachi where he last re-entered Pakistan.

32. Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

33. 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, he does not satisfy the criterion in s.36(2).

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

35. 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, the applicant 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.

36. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

37. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

38. 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 a protection 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 the applicant 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’).

39. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    
    

(1)  In the notice under section 425A, the Tribunal must notify the applicant:

(a)  that he or she is invited to appear before the Tribunal to give evidence; and

(b)  of the effect of subsection (2) of this section.

(2)  The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)  If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.