1717387 (Refugee)

1717387 (Refugee) [2021] AATA 2608 (1 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717387
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denise Connolly
DATE:1 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 June 2021 at 11:28AM
CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – Awami National Party (ANP) member – member of village defence committee assisted army – fear of harm from Taliban – attacks and threats to applicant and family members but no personal harm – applicant’s extensive time spent away from home area and country – multiple visits to Australia without applying for protection – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 8 March 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background to review
The following information comes from the applicant’s visa application. The applicant, aged [Age], is Sunni Muslim from Swat Valley. He is married and has [children], aged [Ages]. They, along with his elderly parents (his father has since died), reside in the Swat Valley. His brother, [Mr A], is in Australia. His other brothers, [Mr B] and [Mr C], are in [Country 1]. From 2000 to 2017 he worked as a Seaman/Stockman for [employer], Karachi. During that period he resided both in Swat and Karachi. He travelled to Australia several times as the holder of a maritime crew visa, first in 2002. He also travelled to numerous other countries including [Country 2], [Country 3] and [Country 4]. He claims to face harm from the Taliban as he assisted the Pakistan Army to identify Taliban houses near his village.
The applicant made the following claims:
·he and his family were supporters of the Awami National Party (ANP), which is the biggest Pashtun political party.
·He was also a member of the Village Defence Committee (VDC)[1].
[1] Mann, S. 2011, ‘Rolling back the Taliban in Pakistan’, AfPak Channel, 27 September. Village Peace Committees or Lashkars were organised to provide security for villages in the tribal north western areas of Pakistan to assist in combating the Taliban.
·When the Army came to his village, they stayed at one of his family’s properties. He and his family assisted the Army to compile a list of Taliban members. They also pointed out Taliban houses, some of which were destroyed by the Army.
·The Taliban robbed his family home and partially destroyed it twice.
·The Taliban sold trees and fruit from the family’s agricultural land and prevented them from accessing the land.
·The Taliban threatened him and his family and attempted to harm them.
·They previously attacked his brothers, who were fortunate to escape.
·Unknown gunmen opened fire on his brother, [Mr B], in mid 2010 but he escaped unharmed.
·The Taliban targeted and injured his brother, [Mr A], during an uprising.
·In August 2016 the Taliban called the applicant, threatened him and told him to stop assisting the Army. Soon after this, the applicant relocated to Karachi where he was approached in December 2016. He felt that someone was following him as he returned to his residence. He was able to escape by running away.
·The applicant fears the Taliban will kill him because of his previous work with the VDC. The Taliban have killed other VDC members and the police and Army were unable to prevent those attacks.
·The applicant cannot safely relocate anywhere in Pakistan. When the applicant attempted to relocate to Karachi he was chased.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that between April 2006 and February 2015 the applicant arrived and departed Australia on 17 occasions as the holder of a SC 988 [Maritime Crew] visa. He did not apply for protection until March 2017.
The applicant was interviewed by the delegate in July 2017. The Tribunal has listened to the recording of the interview. Relevant oral evidence is recorded in the delegate’s decision record. He repeated his claims and stated his father was threatened by the Taliban in 2014 and subsequently suffered a heart attack. He also stated his brother, [Mr B], had previously worked for a polio vaccination team and was beaten by the Taliban in March 2007 because of it.
The delegate noted the applicant visited Australia several times in the periods when he claimed his family was displaced, and also in the period in which the applicant claimed his brothers were attacked, and his father threatened. However he did not seek protection on any of those prior visits to Australia. In response to the delegate’s concern, the applicant claimed his life was not in danger at that time but it is now. The delegate was not satisfied the applicant explained why his life was not in danger over that time but is now. He noted the applicant claimed there were several instances in which his family had been threatened or physically attacked. He also stated however that most of his family, including his father, his wife and children, have remained in the same village in Swat. He did not report any threats to his remaining family in Swat since the alleged threat to his father in 2014. The delegate also noted the threat against his father was not mentioned in his written claims.
The applicant stated at interview that he was a member of the VDC who pointed out Taliban dwellings to the military and some Taliban were killed as a result. He claimed he attended meetings and worked as a guard. The delegate noted however that the applicant appeared to have spent little time in Swat, noting his many sea voyages during the period. He noted the applicant told him that his ship was usually at sea for 7½ to 8 months, and that he would usually wait in Karachi for between 1 and 3 months, for the flight that would take him to his ship. The applicant claimed he had spent more time in Swat than he had at sea. The delegate noted the applicant had worked on ships for 17 years. He was not satisfied he spent much of that time in Swat.
The delegate noted the applicant is a Sunni Muslim and there are 30 million Pashtuns in Pakistan, making up the second largest ethnic group. He referred to information from the Department of Foreign Affairs and Trade (DFAT) confirming there is freedom of movement throughout Pakistan and that Pashtuns own about 70% of the local businesses in Lahore. He found that Lahore and Islamabad are home to various ethnic communities and offer employment opportunities and access to services. DFAT noted a large number of Pashtuns live in Lahore and Islamabad and that local Pashtuns in Lahore had reported that they felt safe and not threatened by sectarian violence. The applicant claimed that Pashtuns were not allowed in Lahore but did not put forward any country evidence to support this assertion. He also stated Pashtuns could only secure low paid positions. With respect to the applicant’s claim that his family were ANP members, the delegate found that his parents still lived in Swat and it did not appear that his family were at any risk.
The delegate did not accept that the applicant had a profile such that there was a real chance of serious harm. When this was raised with him, the applicant stated he did not join the Taliban and his family opposed the Taliban. Eventually he stated that in 2009 he was asked to join the VDC and he attended meetings and informed the military of the Taliban’s whereabouts. He claimed that one of his brothers left Pakistan in 2007 after being attacked. Also his parents were relocated on 3 occasions in 2007, 2008 and 2009. However his parents had continued to live in Swat for the last 6 years. Having regard to the applicant’s movement records the delegate concluded the applicant spent about 7 to 8 months at sea in any given year. He had also told the delegate that he had a residential address in Karachi between 2000 and 2017 where he spent between one and 3 months per year before and after voyages.
With respect to the applicant’s claim that he was attacked in Karachi in December 2016, the delegate noted that, during the interview, he was asked if there were any specific incidents which had led him to leave Pakistan and he did not mention this claim. The delegate raised the claim with him. The applicant said 3 Taliban from his area approached him. He was asked why they were interested in him. He said it was because he showed the military whether Taliban lived. When asked why they had not pursued his family earlier, given they had lived in Swat, the applicant indicated his brothers had run away and his father was threatened. He indicated he was suffering mental issues and his memory was not good.
The delegate was of the view the significant delay in the applicant deciding to jump ship and lodge a protection visa application indicates he held no fear of returning to Pakistan during the period when the insurgency in the Swat Valley was at its worst. He also noted the applicant’s parents, wife and children continued to reside in Swat and that the country information confirmed the situation in Swat had improved. While it indicated that members of the VDC had been targets of militants in Swat, it also indicated that the majority of VDC members targeted by the Taliban were prominent community leaders who also were landowners or members of the ANP. He was not satisfied the applicant met that profile. He was not satisfied there was evidence to support a finding that he had a political profile that would lead to a well-founded fear of persecution in the Swat Valley. He accepted the applicant’s family may have supported the ANP but he was not satisfied the applicant was involved in any obvious political activity in the party’s name. He did not accept that the applicant was pursued by Taliban members in Karachi in December 2016.
Hearing on 25 May 2021
The applicant presented his Pakistani passport confirming he is a citizen of Pakistan. The Tribunal discussed with the applicant the requirements of the law and his claims. It gave the applicant an opportunity to discuss concerns about his evidence and any new evidence he sought to have taken into account. The following is a summary of his oral evidence.
At the time of the hearing the applicant was living in [town] working in a [workplace]. He was clearing about $900 a week and sending about $1200 a month to support his family in Pakistan. He has savings but he could not recall the amount. He also owned a vehicle which he estimated to be worth about $5000. He indicated that prior to this employment he was working [on farms] in Australia.
The applicant’s father died about 5 months before the hearing. His mother lives in Swat in the same house in which he grew up. His wife and children also live with his mother. They have always lived at the same place in Swat. His older three children are not working. His [two younger children] are attending school.
The applicant has 3 brothers. One came to Australia in 2007. He was also a seaman and jumped ship. Initially he indicated his brother held a bridging visa and did not know what visa he applied for. The Tribunal noted the delegate recorded that the applicant in fact did know which visa application his brother had made. Ultimately he acknowledged his brother had applied for a protection visa on the basis he was a member of the ANP. He indicated his brother had trouble with the Taliban. However he stated that his brother has now returned to Pakistan to be with his family. The Tribunal asked if his brother is no longer fearful in Pakistan. He indicated he is fearful but he is careful.
The Tribunal asked the applicant about his employment as a seaman in Pakistan. He indicated that he was on ships for 7 to 9 months a year, from 2000 to 2017. He also spent about 1 to 3 months in Karachi. The Tribunal noted that this would suggest he did not spend much time in the Swat Valley. He confirmed he would travel from Swat to Karachi to fly to [Country 5] or [Country 6] to board ship. When he returned to Pakistan he would return home to Swat. He sometimes flew and sometimes caught the bus. He did this many times as he was working this pattern over the 17 year period.
The applicant indicated his parents were displaced between 2007 and 2009 during the war. The Tribunal asked why the applicant did not apply for a protection when the situation was much worse in the Swat Valley. He indicated that he was working on ships so he was not at risk while it was volatile in the Swat region. He was also in Karachi.
The Tribunal asked the applicant if he now fears returning to Pakistan, and, if so, why. He indicated that he is now fearful of returning because of the problem with Coronavirus. The Tribunal explained that, generally speaking, the protection program is not designed to protect asylum seekers on the basis of the pandemic as this is a circumstance that affects the general population of Pakistan. The applicant indicated he no longer has work on ships as his work has finished. The Tribunal asked if the applicant fears returning to Pakistan because of the Coronavirus and his employment situation. He acknowledged that these were the reasons he was fearful. The Tribunal asked the applicant if there was any other reason why he could not return to Pakistan. The applicant indicated he fears the Taliban. He said they are shooting police and the military. The Tribunal noted the applicant was neither a police officer nor a soldier. He stated they can shoot anyone. The Tribunal asked the applicant why he would have a profile such that the Taliban would be interested in him. He indicated it is different in Pakistan because the Taliban are after everyone.
The Tribunal noted that the applicant’s parents, wife and children have remained in the Swat Valley and did not relocate. It noted this would suggest that they are not fearful living in the Swat Valley. The applicant indicated they do not have any relatives outside Swat. The Tribunal noted that the applicant had been living in Karachi for up to 3 months each year, during the periods when the security situation in Swat was much worse than it is now. The applicant indicated he was only renting. He acknowledged that his brother has now returned from Australia to live in the Swat Valley but he is being very cautious.
The Tribunal asked the applicant why he cannot now return to Swat or relocate in Pakistan if he does not want to live in Swat. It noted the country information indicates that many Pashtuns relocate to Karachi, Peshawar or Lahore. The applicant indicated, to do so, one must provide a guarantee. He did not expand on this claim.
The Tribunal asked the applicant about his involvement with the ANP and the VDC. He indicated he put up posters for the ANP party. The Tribunal asked if he had any other involvement in activities. He responded “no”. The Tribunal noted that the applicant’s earlier claims were somewhat different and asked if they were true. The applicant indicated they were true but could not remember what he had said. The Tribunal explained to the applicant that it may not accept he had involvement in the VDC including informing the Army of the whereabouts of Taliban as he had not repeated those claims in his oral evidence. The applicant indicated his brain was not working.
The Tribunal noted that the applicant had told the delegate that his family was involved in the ANP. It asked when the ANP was in power in the province. The applicant indicated they were in power in 2008. The Tribunal explained that they were in power from 2008 to 2013.[2] The Tribunal asked the applicant why he was not aware that they continued to government until 2013. The applicant then repeated what the Tribunal had said; that they ruled until 2013. He could not explain why he was not able to tell the Tribunal prior to its prompting him.
[2] ANP was the largest Pashtun nationalist party in Pakistan between 2008−2013 with influence in the Pashtun dominated areas around Khyber-Pakhtunkhwa. They governed the province from 2008–2013 but lost to Pakistan Tehreek-e-Insaf in the 2013 assembly election, >
The Tribunal asked the applicant about his current knowledge of the ANP. He indicated it is the party working for Pashtuns. It asked if he had any knowledge of recent events affecting the party. He had nothing further to tell the Tribunal. It noted he was not aware of the terrorist attacks in 2018 in which the ANP faced considerable electoral violence during the elections.[3] The applicant acknowledged that he no longer has any involvement in the ANP.
[3] DFAT Country Information Report Pakistan 2019, 3.11 - The Awami National Party (ANP), which has a heavy Pashtun support base, is strongly anti-Taliban and also faced considerable electoral violence in 2018, including during the 2018 polls (See Awami National Party (ANP).
The Tribunal referred to country information indicating the situation has improved in the Swat Valley. It referred to an article indicating that Swat is considered to be Pakistan’s success story, where infrastructure has been rebuilt, children are returning to school and the security situation has significantly improved.[4] The applicant indicated that 3 months ago the Taliban attacked the military school in Swat and the school was closed.
[4] Pakistan's Success Story, How Swat Valley went from basket case two on the mend, Fatima Bhojani, Dispatch, 19 February 2020, How Pakistan’s Swat Valley Went From Basket Case to Success Story (foreignpolicy.com)
The Tribunal referred to country information indicating the security situation has improved significantly. It noted that it was reported in EASO that peace returned to the Swat Valley in 2019.[5] It referred to information indicating extremist groups in the province are now targeting certain profiles such as journalists, police officers and political leaders.[6] The Tribunal explained that it may not be satisfied the applicant falls into any of those categories and it may not be satisfied he has a profile such that the Taliban would be interested in pursuing him. The applicant indicated that the military came to his area and he was patrolling at night, referring to his VDC activities. He indicated he did this whenever it was his turn, every month. The Tribunal explained that it may not accept he participated in VDC activities every month given he was not in the area, as he was offshore as a seaman and at times living in Karachi. The applicant indicated he paid someone else to do it for him.
[5] EASO, Pakistan Security Situation, Country of Origin Information Report, October 2020, p 75
[6] SATP, Pakistan: Timeline (Terrorist Activities) - 2020 December, 11 January 2021, 20210113150117
The Tribunal explained to the applicant that as a Sunni Pashtun male it may be satisfied on the basis of the country information that he has freedom of movement and if he chose not to live in Swat he could live in Lahore, Karachi or Islamabad. It referred to the DFAT report indicating many Pashtuns run businesses in Lahore and they have reported they do not feel threatened by sectarian violence. The applicant indicated he could not do this because he would not have the money to set up a business.

The Tribunal asked the applicant if he had any other evidence he wished to give or any other claims he wished to discuss. He indicated he does not have sufficient money to return to Pakistan. He had nothing else to add.
The Tribunal noted the applicant had not mentioned his claim that the Taliban pursued him in Karachi in December 2016. Nor did he mention that he received a call from the Taliban in August 2016 telling him to stop assisting the Army. It explained that it may not accept the claim that the Taliban called him or pursued him in Karachi, as it may not be satisfied he would have a profile such that the Taliban would be interested in him. It asked if he had any other evidence to give about this claim. The applicant indicated he was under pressure and that was why he did not remember the claim.
The Tribunal explained to the applicant that the delay in his protection visa application, given he had travelled to Australia 17 times before he made the application, may cast doubt on his claim to fear harm in Pakistan. The applicant indicated there is a risk for him in Pakistan. He indicated he does not speak Urdu or any other language and this will disadvantage him.
The Tribunal asked the applicant if he had any other evidence to give as to why he fears returning to Pakistan. He indicated that the Taliban will kill him because he supports the ANP. He had nothing further to add.
Other country information
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has also considered other country information referred to by the delegate and the information discussed with the applicant at the hearing.
The latest DFAT report on Pakistan notes that:
2.66 The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
2.67 Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
2.68 Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek- e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). ….[7]
[7] DFAT Country Information Report Pakistan 2019.
The current information on the ANP indicates that:[8]
3.170 ANP is a Pashtun nationalist, secular political party that promotes opposition to the TTP, with headquarters in Peshawar, Khyber Pakhtunkhwa. ANP’s major support bases are in Khyber Pakhtunkhwa and Balochistan. ANP formed in 1986 as a successor to the National Awami Party, and served in several national and provincial coalition governments in the 1990s. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government with the Pakistan People’s Party.
….
3.174. DFAT assesses that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship (see assessments under Pashtuns and Afghan Refugees).
[8] ibid
It was also reported that suicide attacks, bombings and targeted killings had been carried out on a large number of ANP leaders, at least 200 of whom lost their lives in the Swat Valley in the years before 2010. Many leaders reportedly fled the Swat Valley for safety in other parts of the country.[9] A December 2008 report in the Daily Times explained that the Taliban in the Swat Valley “started hurling threats and attacking the relatives and houses of the elected [ANP] members” following the ANP’s clean sweep of the February 2008 general elections. ANP leaders and their relatives have been killed and kidnapped by the Swat-based Taliban since July 2008.[10]
[9] Khan, J. A. 2010, ‘ANP leadership remains on hit list of terrorists’, Khyber Watch website, source: The News International, 18 January ‘UN dependents to leave Islamabad’ 2008, BBC News,
[10] Khattak, D. 2008, ‘Swat MPs celebrate Eid in Peshawar as trouble continues in valley’, Daily Times,
The government had control of the Swat Valley by 2010 but the security situation was still volatile. Terrorist attacks against Pakistani military operations occurred in the area in April 2010, when 43 people were killed. In March 2010, “the office of an international aid agency in Khyber-Pakhtunkhwa was attacked”. Suicide bombing attacks on security forces in the Swat Valley were reported in late 2009 and early 2010, while the bodies of suspected Taliban militants and sympathisers were found throughout the region.[11]
[11] Khan, J. 2010, ‘Blast in Pakistan’s Swat kills six – police’, Reuters AlertNet, Tavernise, S. and Shah, P. Z. 2010, ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times Haider, Z. 2010, ‘Two kidnapped Sikhs rescued in NW Pakistan’, Reuters AlertNet,
The country information reports and articles indicate a history of attacks and killings of peace committee members in the Swat Valley up until 2016[12].
[12] Dawn, Policeman killed, two others injured in Swat attack (25 May 2016), available at The Express Tribune, Peace Committee Member Gunned Down in Swat (2 October 2015), available at
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant has presented to the Department and the Tribunal his Pakistani passport confirming he is a citizen of Pakistan, born in Swat, Pakistan. The Tribunal is satisfied the applicant is a Pakistani national and will assess his claims on this basis. The Tribunal finds that he is outside his country of nationality. There is no evidence to suggest that he has a right to enter and reside in any country other than his country of nationality.
Does the applicant have a well-founded fear of persecution?
The Tribunal must consider whether the applicant has a well-founded fear of persecution in Pakistan for one or more of the reasons set out in s.5J(1)(a). The applicant has indicated there is a real chance he will suffer serious harm if he returns to Pakistan, and that the harm would be from the Taliban. He has claimed this is because of his involvement in the VDC and his membership of the ANP. For the following reasons the Tribunal is not satisfied the applicant genuinely fears harm for these reasons, or any other reason. It is not satisfied he has a well-founded fear of persecution.
The hearing was conducted with the assistance of an interpreter in the Pashto and English languages. In the main the applicant was able to answer the Tribunal’s questions and express himself effectively. There were occasions when the Tribunal raised with him concerns about his evidence. His explanation was that his “brain was not working” and that he was under pressure. The Tribunal accepts that giving evidence in a hearing setting is stressful for applicants and it has taken this into account. It notes the applicant, who is represented by a registered migration agent, has not presented any medical evidence supporting his suggestion that he may have some cognitive impairment. Overall the Tribunal is satisfied the applicant had a fair opportunity to engage meaningfully in the hearing process and give his evidence about all the issues raised in his case. It is not satisfied the applicant has any cognitive impairment that impacted on his capacity to give his evidence.
In his written application the applicant claimed he was a member of the VDC. He claimed the Army stayed at one of his family’s properties and the family would assist the Army compile a list of Taliban members and point out their houses, some of which were destroyed by the Army. When asked by the delegate about what had happened to him in Pakistan that led him to believe he was at risk from the Taliban, he indicated he was targeted as there were many people in his village against the Taliban and who would not join the Taliban. He was asked whether this had happened to him. He indicated that his family was against the Taliban. He was asked if he was involved in any specific activity leading to him being targeted. He stated he was a member of the VDC who pointed out Taliban dwellings to the military and some Taliban were killed as a result. He also attended meetings and worked as guards. He said his brothers were targeted by the Taliban. However when the Tribunal first asked about his involvement in the VDC he did not repeat the claims that he assisted the Army by pointing out Taliban dwellings. He did not state that he attended meetings or worked as a guard. It was not until he was prompted by the Tribunal that he described any VDC activities, which he described as patrolling at night every month. The Tribunal explained that it may not accept he participated in VDC activities every month given that he was not in the area on a monthly basis, as for most of the year he was at sea or living in Karachi. The applicant indicated he paid someone else to do it for him. The Tribunal has formed the view the applicant manufactured this explanation to overcome the problems with his evidence. The Tribunal has significant doubt that the applicant was involved in the VDC such that he would have a profile with the Taliban. The Tribunal notes he initially indicated that he undertook these activities every month. However it also notes that he was outside the country 7 to 9 months a year as a seaman, and spent one to 3 months a year in Karachi. The Tribunal also notes the applicant had travelled to Australia 16 times before his most recent arrival and did not apply for protection, strongly indicating he did not fear returning to Pakistan over the period when the security situation in Swat was most perilous, 2007 to 2010. The Tribunal also notes VDC members in the Swat Valley endured a history of attacks and killings from 2009 to 2016. The applicant however said that he was not at risk until 2016. This casts doubt on his claim to have been threatened by the Taliban for not joining them. The applicant’s willingness to return to Swat during the period 2009 to 2016 casts significant doubt on his claim to fear the Taliban during those years because of his VDC involvement or for any other reason. This in turn casts significant doubt on his claim to have been actively involved in the VDC given the country information about the risks for active VDC members since 2009. The Tribunal is not satisfied the applicant played anything more than a minor role, if any at all, in the VDC up until he last left Pakistan in 2017. It is also not satisfied the Army stayed at a family property, a claim he did not repeat at his hearing. The Tribunal is not satisfied the applicant faces a real chance of serious harm on the basis of any political opinion or imputed political opinion, because of association with the VDC.
The applicant indicated in his written application that he and his family were ANP supporters. However the Tribunal notes he did not appear to know the period in which the ANP were in power in his province, 2008 to 2013, until he was told by the Tribunal. When it asked him about his involvement in the ANP he indicated he put up posters for the party. The Tribunal asked if he had any other political involvement. He responded “no”. The Tribunal noted that the applicant’s earlier claims in the visa application and to the delegate, as recorded in the decision record, were more detailed that his oral evidence to the Tribunal. It explained that it may not accept he had involvement in the ANP. The applicant indicated his brain was not working. The Tribunal is not satisfied this explains his lack of knowledge about the party. When asked about the party’s circumstances and if he continues to be involved, he indicated the ANP is the party that supports Pashtuns. The Tribunal is not satisfied the applicant has anything but a scant knowledge of the ANP. It is not satisfied he or his family members were members of, or involved in, the ANP. It is not satisfied he has ever been associated with the ANP, or that he is of interest to the Taliban because of any involvement or association with the ANP. It is not satisfied the applicant will be a member of, or involved with, the ANP, or any other political party or political association, if the returns to Pakistan in the reasonably foreseeable future. The Tribunal is not satisfied the applicant faces a real chance of serious harm on the basis of any political opinion or imputed political opinion, because of association with the ANP.
As the Tribunal is not satisfied the applicant has any profile in Swat or Pakistan because of his involvement in the VDC or the ANP, it has serious doubt he had a profile with the Taliban such that they would find him and chase him in Karachi. The Tribunal notes he did not repeat this claim at his hearing. When it was put to him that he omitted to raise this claim at the hearing, the applicant indicated he was under pressure and that was why he did not remember the claim. The Tribunal has taken this into account but has concluded this is a significant claim and, if it occurred, the applicant would have remembered. The Tribunal has concluded the applicant did not remember the claim because it did not occur. The Tribunal is not satisfied that in August 2016 the Taliban called the applicant and warned him to stop assisting the Army or they would kill him. It is not satisfied that in December 2016 he was chased in Karachi but managed to escape. It has formed the view the applicant has manufactured this evidence to strengthen his claim to be a refugee.
The Tribunal notes in his written claims the applicant indicated his brother, [Mr A], was targeted by the Taliban. He told the delegate this brother had made a protection visa application. He told the Tribunal this brother has now returned to Pakistan. When asked if [Mr A] is no longer fearful in Pakistan, the applicant indicated he has returned to Swat but he is being very cautious. The Tribunal is not satisfied there is any evidence before it to indicate the applicant will face a real chance of serious harm because of anything this brother has done in the past or will do in the future. He has not claimed to fear harm because this brother has now returned to Pakistan. The Tribunal is not satisfied the applicant faces a real chance of serious harm on the basis of any imputed political opinion, or for any other reason, because of his association with this brother.
The applicant also claimed that gunmen opened fire on his other brother, [Mr B], in mid 2010 but he escaped unharmed. He claimed [Mr B] had worked for a polio vaccination team and was beaten by the Taliban in March 2007 because of it. The applicant provided to the Tribunal no oral evidence regarding this claim, despite being invited to give the Tribunal any other relevant evidence. Accordingly the Tribunal is not satisfied this brother worked for a polio vaccination team. It is not satisfied there is real chance the applicant will face serious harm because of anything [Mr B] has done in the past or will do in the future. It is not satisfied the applicant faces a real chance of serious harm on the basis of any imputed political opinion, or for any other reason, because of his association with this brother.
The Tribunal has considered whether the applicant will suffer serious harm because he is of Pashtun ethnicity, an issue discussed in the delegate’s decision record, provided to the Tribunal by the applicant. He told the delegate that Pashtuns are not allowed in Lahore. He did not repeat this claim at the hearing but indicated to the Tribunal that he will be disadvantaged because he speaks only Pashto. According to DFAT, Pashtuns are the second largest ethnic group in Pakistan after Punjabis and comprise about 15% of the population.[13] They traditionally live among their own tribes in the Khyber Pakhtunkhwa including in Swat Valley. DFAT reports that they do not face a higher risk of violence than other groups based on their ethnicity. While DFAT reports that some members of the Pashtun community have claimed to have been harassed by police and security forces, these claims were not made by the applicant. Having found it is not satisfied the applicant has a profile on the basis of VDC work or an ANP association, the Tribunal is not satisfied that the applicant would need to relocate to an area such as Karachi or Lahore. However it is not satisfied there is any country information to support his claim that Pashtuns are not allowed in Lahore. On the basis of the information before it, while the applicant may face some discrimination because of his Pashtun ethnicity, the Tribunal notes the applicant’s family continue to live, unharmed, in Swat Valley and it is satisfied he will be able to live with them if he returns to Pakistan in the foreseeable future. The Tribunal is not satisfied he has suffered serious or significant harm in the past because of discrimination or that there is a real chance he will suffer serious harm in the foreseeable future because he is Pashtun.
[13] DFAT Country Information Report Pakistan, 20 February 2019, page 24

The applicant did not repeat at the hearing the claims that the Taliban robbed his family home and partially destroy it, sold the family’s trees and fruit and prevented the family accessing their land. On the evidence before it, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm if he returns to Pakistan in the foreseeable future for these reasons.
The applicant has claimed the Taliban threatened his father in 2014 and his father had a heart attack. He has since told the Tribunal that his father passed away about 5 months before his hearing. It notes however there is no evidence to suggest his father, mother, wife and children, who were living in Swat, have been harmed since the applicant last travelled to Australia in 2017. The Tribunal is not satisfied the applicant faces a real chance of serious harm because of any imputed political opinion, or for any other reason, because of his association with his father if he returns to Pakistan in the foreseeable future.
The Tribunal discussed with the applicant country information indicating the security situation in Swat has improved. He indicated he feared returning there because the Taliban can shoot anyone. This is despite leaving his wife and children to live there for many years while he worked as a seaman and travelled to Australia, including during the worst years of the conflict in Swat. It does not accept his explanation for this, that they did not have relatives outside Swat and a guarantee has to be provided, given he was living in Karachi for part of the year. The Tribunal has taken into account the country information from DFAT and EASO indicating the security situation has improved in Swat. While there are still security concerns, Swat has rebuilt infrastructure and children are returning to school, as demonstrated by the applicant’s own evidence that his [young children] now go to school. The Tribunal is not satisfied that there is a real chance the applicant will face serious harm if he returns to Swat in the foreseeable future.
Considering the claims and evidence overall, both individually and cumulatively, the Tribunal is not satisfied the applicant faces a real chance of serious harm in the foreseeable future on the basis of his ethnicity, political opinion or imputed political opinion, membership of a particular social group, or the combination of these reasons, or for any other reason, if he returns to Pakistan in the foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant meet the complementary protection requirements?
The Tribunal must also consider whether the applicant meets the complementary protection criterion. A person meets the complementary protection criterion 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.
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
When the Tribunal discussed with the applicant the country information indicating Pashtuns ran businesses in Lahore, he indicated he would not have the money to set up a business. He raised his concern that his employment as a seaman had finished and he fears returning to Pakistan because of the Coronavirus and his employment situation. The Tribunal is of the view issues with securing employment, and health risks related to the Coronavirus pandemic, which the applicant claims to fear, are faced by the Pakistani population generally and not by him personally. There is no suggestion he will be denied employment or medical treatment for any reason other than a general lack of medical facilities or employment opportunities. It is not satisfied there is real risk that the applicant will suffer significant harm in Pakistan for these reasons. The Tribunal notes the applicant has work experience, on ships as a stockman, and in Australia in a [workplace] and [on farms]. He also indicated he has some savings and a car worth about $5000. It is satisfied the applicant will be able to return to his family in Swat Valley and secure some form of employment such that he will be able to subsist. Given these findings and its findings above in relation to ‘real chance’, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
Member

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

Perlez, J. and Shah, P. Z. 2008, ‘Confronting Taliban, Pakistan Finds Itself at War’, The New York Times,

Booth, J. 2010, ‘British woman killed in Pakistan suicide bombing’, Times Online,

–Masood, S. 2009, ‘Provincial politician is slain in Pakistan’, The New York Times, ‘Swat attack’ 2009, Dawn, 2 December Perlez, J. and Shah, P. Z. 2009, ‘Pakistan Army Said to Be Linked to Swat Killings’, The New York Times, 14 September

The Daily Times, Peace Committee Member Gunned Down in Swat (14 September 2015), available at The Frontier Post, Peace Committee Member Gunned Down (15 September 2015); Peshawar Tribune, Two Peace Committee Members Killed in Lower Mohmand (12 September 2015); Fazal Khaliq, ‘Local Panic: Fear grips Swat after attacks in Kabal tehsil' The Express Tribune (17 September 2014), available at Fazal Khaliq, ‘Taliban target local militias called peace committees in Pakistan’s Swat Valley’ (20 February 2014) available at ‘Three killed in attack on peace committee members’, Peshawar Tribune (12 June 2014) available at

[2021] AATA 2608

1 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction