1718343 (Refugee)

1718343 (Refugee) [2023] AATA 2445 (27 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Mahalakshmi Saikumar (MARN: 1572358)
CASE NUMBER:  1718343
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Simone Burford
DATE:27 April 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 April 2023 at 9:15am

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – school teacher, social worker and president of human rights group – attacks and threats by extremist groups – activities in Australia – modernised, westernised returnee – credibility – delays in leaving after attack and applying for protection – applied after ceasing studies and application for partner visa withdrawn – inconsistent claims and evidence – minor and localised activities, and passage of time – no harm to parents or sisters with higher profiles – late provision of reports to police – country information – decline in extremist attacks against civilians, and official operations by security forces – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAO v MIBP [2018] FCFCA 2
DAJ19 v Minister for Immigration [2020] FCCA 2142
Guo Wei Rong and Pam Run Juan v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old Pakistani citizen from [Village], [City], District of Khyber Pakhtunkhwa, Pakistan. He is divorced. He claimed to be a Sunni Muslim of Khan ethnicity.
According to the delegate’s decision the applicant was granted Student visa Class TU‑572, on 23 March 2011 valid until 20 September 2012. The applicant arrived in Australia on [April] 2011 on a student visa. The applicant ceased his studies in September 2012 and lodged an application for a Partner (Combined) visa UK820 on 24 August 2012 but withdrew after a Departmental officer counselled his agent that his partner was under the age of 18 years. On the 21 September 2012, the applicant again lodged a Partner (Combined) visa UK820 application but that application was withdrawn on 12 May 2014 after the marriage broke down.
The applicant applied for a protection visa on 9 June 2014 and the delegate refused to grant the visa on 21 July 2017.
ISSUES
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
APPLICATION FOR THE VISA
Protection claims
Protection visa application
The applicant initially detailed his claims for protection in his application form. The applicant was interviewed by the delegate on 31 July 2015.
In his application for protection the applicant indicated that he was born in [City], Khyber Pakhtunkhwa (KP), Pakistan, and was ethnically Khan/Pathan. He indicated he spoke, read and wrote in English, Urdu and Hindko. Before the Tribunal, the applicant also indicated he spoke Hindi.
The applicant’s initial claims in the application for protection as detailed in his protection application were, in summary:
·He was a schoolteacher and a social worker in Pakistan, working voluntarily along with different non-government organisations (NGOs) and human rights groups running a social justice party.
·He was working against the sectarian violence and honour killing of girls and women.
·He has been ‘attacked and threatened by these terrorist groups’ because of his work for the community and NGOs and as a result his family sent him to Australia.
·While he is away from home these groups might calm down and forget about his past work but when he returns he will resume his activities. His family was getting constant threats from these groups regarding his return.
·He has experienced serious harm both physically and mentally in Pakistan, including serious mental stress because of threatening letters and the fact that he and his family are being constantly watched by terrorist groups.
·His home and school were attacked. He has lost everything including his social life. His home was attacked when he was home with his family members but he and his family narrowly escaped from the firing. His pet dog got shot and the house was partially damaged. In response to panic and gunfire, the local residents informed the police and the attackers fled.
·If he returns to Pakistan he fears being killed. People are closely watching his family and getting information of his whereabouts. They claim that he came to Australia for the Western culture and education and that he wanted to implement that culture in Pakistan, which is against Islam according to them. They claim he has been working on issues like honour killing, girls’ education and working for human rights, and when he returns he will promote modernised un-Islamic culture in the society. Terrorists claim he has damaged Islamic values and culture by promoting awareness for education and women’s rights. According to such groups the only punishment for ‘a person like me’ is the death penalty.
·If he returns his family will also be in danger, and according to the local authorities, they cannot to protect him for the rest of his life. They will kill his family if he goes back to Pakistan because they think his family is supporting him.
·These terrorist groups are the biggest threat to his life and ‘according to the local authorities information they will not be in peace until I am dead’. Insurgents of these groups are within the community and they can kill the applicant anytime when he returns. They will get to know about his return if he goes back to Pakistan.
·He has been attacked several times and received threatening letters. He and his family are constantly watched. His school staff and students’ lives were in danger because of his promotion of girls’ education, his social activities and his volunteer work for NGOs. According to these terrorist organisations, girls’ education is prohibited in Islam and they are against the English education system which they think will bring disaster in society if girls go out and get an education, work with men and do not observe ‘the veil’. The society will become modernised and it is against Islam. As the applicant was working with NGOs and other organisations who were promoting education and women’s health in rural areas, according to the terrorists he was working on non‑Muslim agenda and driving all the people away from Islam.
·‘Pakistan authorities including police/local government could [not] protect the lives of hundreds of citizens, journalists, NGOs persons, human rights and social activists, teachers and health workers and they are under the target of these terrorist organisations according to the world media, international human rights groups and United Nations bodies’. The applicant has been attacked several times and his family members were in danger because of him. After the initial threats, he informed the police but nothing happened and he got attacked. He has been told that these people can attack him ‘anytime, anywhere’ until they ‘finish’ him. Because of limited resources, police cannot give the applicant protection 24 hours a day for the rest of his life.
·His family closed down the school but they were still getting threats and he has been attacked by saying that he has done a lot of damage to Islam by giving education to women, working for their rights and regional health projects. Local authorities told him that all the NGOs, human rights activists are being attacked and they cannot provide each individual protection for rest of their lives.
·The terrorist organisations have been spread everywhere in Pakistan so no matter where he lives in Pakistan they will find him and kill him. These organisations also attacked police and law enforcements agencies for protecting NGOs, human rights organisations and foreign workers. According to all International Organisations including UNO, UNHCR, Save the Children and Amnesty International people who are involved in social activities and health projects and human rights are on the terrorists’ lists and will be targeted at any time. Because of limited resources, local authorities advised him to stay safe wherever possible as they are helpless.
According to the delegate’s decision the applicant also claimed during his interview that:
·He was involved with a group/organisation named [Organisation 1], which he co-founded with his father in 2008. The objective of this organisation was ‘to liberate the general and uneducated masses of localities from SHAKE4LS[1] of ignorance of political systems, promote democracy and freedom’. Members of his family have always supported [Organisation 1] and his father was financially supporting the group. The group was not a political party, was not registered and had around 100 members. He was appointed the president of this organisation by its members and was the sole operator and the voice of this group.
·In 2010 he received a threatening letter from the Taliban. He received a second threatening letter from the Taliban. The applicant has provided a copy of the threatening letters.
·Shortly after receiving the threatening letters from the Taliban, in September 2010 whilst he was at home, unknown persons started to shoot at him and his parents. The applicant stated that he and his parents were not hurt but his pet dog was shot dead. He reported the incident to police on the same day.
·His parents have been watched and threatened by the Taliban however, they had not been harmed. His parents have been able to live in Pakistan without any harm coming to them because his ‘father is too old and he doesn’t do anything, I was the only one doing this, he was just supporting and his old man who is 70 years old’.
·He did some volunteer work with a three NGOs named [Organisation 2], [Organisation 3] and [Organisation 4].
·The Taliban is targeting him because of his work with NGOs, where he assisted in talking to the local people and encouraged them to have their polio vaccinations. One of his sisters is [an Occupation 1] who assisted him with the work with the NGOs on some occasions. His sister was not targeted for harm because she got married and is no longer practising as [an Occupation 1].
[1] The Tribunal infers this meant ‘shackles’
In addition to his application and identity documents, the applicant submitted the following documents to the Department:
·Translated copy of the ‘[Organisation 1] Manifesto’;
·Pakistani Police First Information Report (FIR) dated 3 July 2010;
·FIR dated 5 May 2010;
·Translated copy of a threat letter addressed to the applicant (letter undated, translation dated 2014);
·[Organisation 1] ‘procedure for membership’ form;
·Applicant’s marriage certificate dated 23 September 2012;
·Applicant’s divorce orders dated 23 October 2014.
The delegate’s decision
On 27 June 2017 a delegate of the Minister refused the protection visa applications.
The delegate accepted:
·The applicant’s identity and nationality as a citizen of Pakistan;
·The claim that the applicant was a resident of [District], of Khan ethnicity and a Sunni Muslim;
·That he may have been a member of [Organisation 1].
The delegate did not accept:
·That the applicant’s activities as a president and supporter of [Organisation 1] were such that would result in him being targeted and consequently attacked, noting that the applicant states in his Departmental interview that [Organisation] is no longer operating and has not been since his departure in 2011 and the applicant’s statement that [Organisation] was not a political party or a registered organisation;
·The claimed threatening letters from the Taliban having regard to country information concerning fraudulent documents in Pakistan, the fact the authenticity of the letter could not be verified and the fact the letter appeared to have been written solely for the purpose of supporting the application;
·The police report dated 5 May 2010 with regard to the threats made at his school particularly as some of the contents of the letter are inconsistent with the applicant’s version of events concerning this incident and the fact that the applicant’s response to these issues did not appear to be spontaneous and lacked depth;
·That the applicant was threatened as claimed;
·That the applicant’s account of his home being attacked by the Taliban was credible;
·The police report dated 3 July 2010 with regard to the fact that the report was dated 2 months prior to when the applicant claimed the event took place, country information regarding fraudulent documents in Pakistan, the fact he based his assumption that the Taliban were responsible for the attack on the threatening letters he said were sent by them and the fact that he spent a further 9 months in Pakistan following the alleged attack while claiming the Taliban continued to seek him with a view to killing him;
·That the applicant’s parents have been watched or threatened by the Taliban as claimed noting that they continued to live at the family home in [Village];
·The applicant’s claims that he volunteered for NGOs and was targeted because of it. The delegate considered that the applicant offered no evidence to support his clams to have worked or volunteered with those organisations and the fact the delegate was unable to find any record of the NGOs in Pakistan. Further, when asked about his involvement with the NGOs, the applicant stated that he was not directly involved with them and only assisted once or twice a month when required.
The delegate also found that the applicant’s delay in seeking protection reflected adversely on the credibility of his claims for protection, as it can be reasonably argued that those in genuine need of protection would seek to apply for protection at the earliest possible opportunity. The delegate found the delay gave rise to concerns about the ‘immediacy, seriousness and credibility’ of his claims to fear persecution in Pakistan.
The delegate found that the applicant’s political profile was ‘relatively minor and highly localised’ and that he has fabricated claims of attacks and threats by the Taliban to enhance his claims for protection. The delegate was not satisfied that the applicant or his family had a profile that would attract the adverse attention of the Taliban or any extremist group.
On the basis of these findings, the delegate was not satisfied the applicant had a real chance of being persecuted for a Convention reason in Pakistan. The delegate was also not satisfied the applicant faced a real chance of significant harm on return to Pakistan.
Accordingly, the delegate refused the protection visa application on the basis that the applicant was not a person in respect of whom Australia has protection obligations under s 36 of the Act.
Review application
On 17 August 2017 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant attended hearings before the Tribunal on 9 June 2021 and 18 January 2022 to give evidence and make submissions in support of the review application. Hearings scheduled in July and August 2021 were rescheduled either at the request of the applicant or due to the unavailability of the Member.
Following the second hearing the Member became unavailable for a period, delaying consideration of the application. In light of the delay in considering the application, to ensure there were no relevant changes in the applicant’s claims or circumstances and to discuss the information submitted following the second hearing, the Tribunal invited the applicant to a further hearing on 1 March 2023. No new claims were raised at the subsequent hearing.
The applicant was represented in relation to the review by his registered migration agent who attended the hearings.
The hearings were conducted with the assistance of a Hindi interpreter, however the applicant indicated he preferred to communicate in English. The Tribunal observed the applicant had a good command of English, which he noted was the official language of Pakistan, and that he had no issues understanding and responding to the Tribunal’s questions and it indicated it was happy to proceed on that basis while encouraging the applicant to use the services of the interpreter if needed. No issues regarding the interpreter or the interpretation services provided were raised by the applicant with the Tribunal during or following the hearings.
At the hearing on 18 January 2022 the Tribunal also took evidence from two friends of the applicant, [Mr A] and [Mr B]. [Mr B] gave evidence via telephone. Statutory declarations from these witnesses were also provided. The evidence of the witnesses is considered further below.
Prior to the first hearing the applicant submitted the following information (in addition to copies of some documents previously provided to the Department and listed above):
·Eleven untranslated [Organisation 1] membership forms;
·[Organisation 1] president membership card in the applicant’s name;
·Submission from the applicant’s representative dated 30 May 2021;
·Translated copies of the FIRs dated 5 May 2010 and 3 July 2010;
·Article ‘The fight for education in Pakistan’s Swat’, Al Jazeera online, 15 October 2012;
·Article ‘Pakistan: Attacks on Schools Devastate Education’, Human Rights Watch online, dated 27 March 2017;
·Article ‘Malala: Symbolizing the right of girls to education’, UNESCO online, undated.
Following the first hearing the applicant provided copies of documents previously provided to the Department including the statement from his father made in 2014. This document was missing from the Tribunal’s copy of the file, however the Tribunal accepts it had been provided to the Department given the date on the document is consistent with it having been provided around the time other material was provided in support of the application.
Prior to the second hearing the applicant provided the following additional material:
·Translated First Information Report dated 20 April 2013;
·Translated First Information Report dated 24 April 2013;
·Translated First Information Report dated 5 October 2015;
·Translated First Information Report dated 25 November 2018;
·Translated [Organisation 1] membership forms in the names of approximately 19 people;
·Statutory declaration of [Mr B] dated 20 July 2021; and
·Statutory declaration of [Mr A] dated 20 July 2021.

The applicant was provided with an opportunity to provide any further submissions or information following the second hearing. On 11 February 2022, the applicant provided the following:
·Representative’s submissions dated 11 February 2022;
·Medico Legal Report from the Government of Khyber Pakhtunkhwa regarding the applicant’s brother dated [November] 2018;
·‘Verification of First Information Reports’ letter from notary public in Pakistan dated 7 February 2022;
·Copy of untranslated First Information Report dated 20 April 2013;
·Copy of untranslated First Information Report dated 24 April 2013;
·Copy of untranslated First Information Report dated 5 October 2015;
·Copy of untranslated First Information Report dated 25 November 2018;
·Photographs of the applicant campaigning for [Mr C], a candidate in the [Local government] elections in Western Australia;
·Photographs of the applicant with [Mr D] taken on a visit [Mr D] made to Perth in around 2016 or 2017;
·Photographs of the applicant assisting with a fundraising event and airport pickup for [Ms E] on a visit she made to Perth in around 2017 for fundraising activities associated with [a Project];
·Photographs of the applicant with then Member of the Western Australian Parliament, [Mr F] taken in around 2014 or 2014;
·Statutory declaration of [Mr G], a friend of the applicant’s, dated 8 February 2022.
The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the hearings. This information and the applicant’s oral evidence to the Tribunal at the hearings are discussed further below. At the first two hearings, the Tribunal also discussed with the applicant relevant country information, including information contained in the Country Information Report on Pakistan issued by the Department of Foreign Affairs and Trade (DFAT) in 20 February 2019.[2] An updated DFAT Country Information Report was issued on 25 January 2022[3] shortly after the hearing but prior to the applicant providing his post hearing submissions to the Tribunal. That report was referred to in post hearing submissions and discussed at the final hearing.
[2] DFAT 2019 Country Information Report: Pakistan, 20 February 2019.
[3] DFAT 2022 Country Information Report: Pakistan, 25 January 2022.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘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.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Tribunal
The applicant claims he was born in [Village], [City], KP. He is a Sunni Muslim and described himself as being of Han ethnicity.
His parents and siblings remain living in Pakistan. His parents remain in [Village], [City], KP. His parents own a home there in addition to farming and forest land which is being looked after by people working for them, as well as some properties including a [Property]. They previously owned properties including a school and hospital. His parents’ gardener and housekeeper live with them and his nieces and nephews sometimes stay with them. His parents live in the same home they have lived in since before the applicant left Pakistan. The applicant lived with them prior to coming to Australia.
He has two sisters who are married with children. They live in different towns. One is [an Occupation 1] who lives in Abbottabad about [Time] mins drive from [City]. She married after the applicant came to Australia. She married around 2013 or 2014 (8 years prior to 2022). She went to university in Rawalpindi. His other sister lives in [Location] about 10–12 km away from [City]. She has a Masters in [Subject 1] from [University] in [District]. She stopped working when the school run by the family closed before the applicant left Pakistan. She married before he left, in 2007–2008.
He has three brothers who are all married with children. One was living in [Country 1] but by the time of the subsequent hearing he had returned to Pakistan. Another works for a [company] in [Village]. He has [a Qualification] from[University]. His oldest brother left home when he was younger and is [an Occupation 2] at [Workplace] in [Location]. He does not have much contact with his eldest brother but thought he has a degree in [Subject 2].
The applicant married [on Date] in Australia. They married a few months after meeting. She was from [Country 2] and he believes she was Christian. He made an application for a partner visa on 20 September 2012. They were together for almost 2 years living at [Suburb], Western Australia. They separated in October 2013 and divorced [in] October 2014. He said they withdrew the partner visa application when they knew they could not continue anymore. This was sometime in 2014. They are no longer in contact.
In Australia the applicant has been working in [Work sector] and [doing a job task with Employer]. The applicant told the Tribunal he initially started a Diploma of [Subject 3] in April 2014. He knew he ‘couldn’t go home’ but hoped to open a [Work sector] business. In Pakistan he completed a Diploma of [Subject 4] in [City]. This was the equivalent of Year 11 and 12. He completed his diploma course in 2010.
In Pakistan he worked at the school run by his family, teaching and doing [an administrative task] for the school (and also for his family). He started working there in 2008. He was teaching primary [Subjects 5 and 6]. His older sister was also teaching at the school. She was the principal teaching every subject and covering for other staff as well. They had [Number] classes and [Number] teachers. The school covered [School years]. The students would then move to high school in [City].
He told the Tribunal there were about [Number] students at the school who generally lived within walking distance in adjacent towns. Some came from nearby towns by transport. The school was privately funded, generally by his parents. Most students were there on free education. The school had opened when he was ‘quite young’ in Year [Number]. When it first opened it was his sister who was teaching there and ‘doing the whole thing there’ with other teachers on staff. It was owned by his parents but his sister was the teacher running the school. He said the school closed at the end of the school year at the end of 2010 or the beginning of 2011.
He stated that ‘people came to threaten me with the guns and covered faces’ to the school and a lot of students had started leaving. He told the Tribunal there had been a few instances in Pakistan where young kids were shot in the face and referenced the well‑known case of Malala Yousef. As a result parents didn’t want their children to go. At the time of closing they were down to around [Number] students from the peak in 2007 and 2008 (of around [Number] students).
When the Tribunal queried the dates he claimed to be working at the school as these appeared to be the dates he was at school himself, he said that he got the dates wrong but he knew he was working at the school when he was also ‘running a party’ – the [Organisation 1] – at that time so he wasn’t in college. He was only teaching two classes – [Subjects 5 and 6] – when he was at the school.
The family also owned a hospital and the sister who was [an Occupation 1] was running it. The hospital closed in 2010.
At the first hearing the applicant told the Tribunal he was helping out NGOs doing polio work in the area. He said in 2008 the World Health Organization (WHO) asked him to assist going into towns in the Swat Valley. When asked who approached him he said ‘people employed there’. He said they asked if he could help and he provided medical camps and cultural work using his contacts.
With respect to [Organisation 1] he said it wasn’t registered as a political party because it wasn’t easy to register. He said he had tried to register it. When asked if he had evidence of trying to register the party he said ’most of it was verbal’. He said the members were people who helped out with their operations providing logistical support, setting up camps and doing the work. The members came from [City]. They reached members through word of mouth and told them the party’s manifesto.
The Tribunal asked what being a member of the party entailed and he said it meant they wanted to help the party make a change with ‘women’s rights’ and ‘sectarian honour’. He said they held meetings mostly at his residence by word of mouth. About 20–25 people attended the meetings. When asked what they would discuss at meetings he said things like the outbreak of measles and what medications were required. He said they would consult with his sister. The Tribunal asked if there was any evidence of these activities and he said Pakistan was ‘1,000 years’ behind Australia so there wasn’t any evidence. The first members were his cousins and close friends with whom he had connections.
He said he established the organisation but his parents funded it. He said he ‘always wanted to make change’. He said in Australia they raised funds for [Ms E] in 2016/2017 to donate to an organisation she ran. He said he had been asked by the Pakistan Tehreek-e-Insaf party to be involved and had offered to help raise funds for charity.
The Tribunal asked if he had ever been a member of a political party in Pakistan and he said he had not. He wanted to bring about change with like-minded people. He did not support or endorse any political parties or local candidates for election in Pakistan. He said the ’long term goal’ was to establish a political party but they didn’t get to that point. His dad helped draft the manifesto but was not a member of the party.
He said he personally organised the medical camps they conducted. His sister provided the medical services and offered gynaecological services to women during the camp visits. The Tribunal asked if these medical camps were organised through the family’s hospital and he said they were. He confirmed the hospital was owned by his parents and run by his sister.
He said he applied for protection because when he came to Australia in 2011 he was ‘in bad shape’ and was depressed. He thought he could study and get a skilled visa and find a girlfriend and get married but his marriage fell apart and he didn’t know about the protection visa. He thought it would get better but it got worse every year. He said he ‘missed a lot of births and marriages but I couldn’t go [to Pakistan] because of the fear that I hold’. He said he found out about the visa through friends.
The Tribunal asked about claimed incidents that made him fear returning to Pakistan and he said that in 2010 people with covered faces came to his family home with guns and shot one of his pet dogs. They started yelling his name and he hid himself and police arrived following the noise and panic. Police made a report but nothing came of it. He said it happened around midnight and he hid and he could see them through the window. They shouted about him and the damage he had done to society, ‘threats like that’. He said they were speaking Urdu which was the language of the town. He said most of ‘them’ were Pashto speakers but they know Urdu as well. He said he was young at the time and he didn’t understand how the terrorists operated. He said he thought they were Taliban (TTP) because they had beards and guns. He said he thought this was in July 2010.
He said he was the only one of the children living at home at this time. When the Tribunal queried where his sisters were living he said one was married and the other was living in Abbottabad. When the Tribunal pointed out he had said she married after he left for Australia he said she was living in Abbottabad with her partner. When the Tribunal sought to confirm he was saying she was unmarried and living in Abbottabad with a partner he said he wasn’t sure about the dates and she was living with the family when she was working at the hospital. He said she and her partner ‘didn’t live together’. He said she might have been living with friends in Abbottabad.
He said after the incident at the house, in the fifth month of 2010 (May) he was at the school and someone came to the school asking for him. By their appearance the peon (the guard or gate man) knew they were Taliban and said he didn’t know where the applicant was. The incident was reported to police. He said there were 4–5 people at the school at the time. He said when the families found out they started sending the students to other schools. He said there was lots of violence in schools at the time.
The Tribunal asked if there were any other incidents and he said that after that they closed down all activities and his whole focus was to get away. He said there were no other incidents before he left. There were some disputes when they set up camps but nothing that made them fear for their lives.

When asked whether he had any other concerns about returning to Pakistan he said that the sectarian violence there had worsened and people could travel from Afghanistan and Iran quite freely. There was no way for the government to control anything. He said this had worsened since the Taliban took over Afghanistan. He said if he could return he would because he would have the support of his family and parents but because of the treatment he received he can’t return.
The Tribunal raised with the applicant that country information suggested an FIR cannot be relied on as proof of the incidents or events contained in it due to widespread document fraud in Pakistan. The Tribunal noted that the provision of FIRs 11 or 12 years after the event and very late in the proceedings adds to a concern regarding the credibility of those documents. He said the documents were authentic. He said financially he didn’t need to live in Australia and the reason is the fear he has of returning.
The Tribunal put to the applicant that if the school and hospital were owned by his parents and run by each of his sisters respectively it was difficult to understand why the applicant, who was [Approximate age] at the time, would have been targeted by the extremists rather than those more heavily involved and financially responsible for the work of the organisations he claimed led to him being targeted. He said that he was more prominent because he was setting up the camps and he was the face of his political organisation. He said his dad never went out in public. He said a lot of people came to know him. He likened himself to Malala who was targeted because she was campaigning.
The Tribunal noted his sisters were working in fields and he said they were not targeted and it was difficult to see why they would not be at least as prominent as he was, and, taking Malala as an example, more of a threat to and a target for extremists, yet they had on his evidence not been targeted and continued to live in Pakistan. Further, his parents had continued to live in the same house in the period since then without suffering any harm. It was put to him that it was difficult to accept that extremists would still be interested in him or the party which had 100 members and was disbanded 10 years prior. He said that his parents are elderly ([Ages]) and don’t leave or participate in social activities. He said the Taliban ‘generally do not harm senior citizens’. He said his parents were ‘OK’ but his father had been followed and threatened.
The Tribunal put to the applicant that the delegate’s decision noted he claimed that the incident where his dog was shot in July 2010 was reported as being September 2010. He said he was not good with the years and the dates. The Tribunal also raised the fact that there was a 9‑month period following the attack before he left Pakistan which may cast doubt on his claims. He said he had to undertake English studies to meet the minimum score requirement and that process took him quite some time. He was keeping a low profile and was spending time in Islamabad and in Abbottabad where he has a sibling.
Prior to the second hearing the applicant submitted a number of additional documents reporting incidents since he left Pakistan. At the second hearing the Tribunal noted the applicant had reported at the first hearing that there had been no further incidents of harm against his family. He said after the hearing with the Tribunal he spoke to his mother again and she ‘came up with some incidents’ that had happened to them. He said she hadn’t told him because he was the youngest child and was living by himself in a foreign country and they didn’t want him to burden him. He said she told him they had some FIR they could send that had been filed in the last few years if this would help. He asked for other evidence and his mother told his brother and he sent the other evidence. The Tribunal asked why he hadn’t raised the issue of further available evidence with his mother when he was refused the visa by the delegate who had raised a concern about that point. He said he did raise it with the family but they didn’t tell him the stressful things. He said that he told them the visa had been refused but that he hoped to get a review. He said normally he doesn’t discuss things with his mother that would stress her. He told her there was nothing to worry about. The Tribunal asked whether he had spoken to his siblings about the issues raised in the primary decision and he said he didn’t tell his siblings because they have their own lives and are doing well.
He said the threat letters had been thrown into the school and one at the home. The Tribunal asked where he got the documents from and he said they had been kept by the family. The Tribunal put to the applicant that country information regarding fraudulent documents in Pakistan, combined with the late presentation of the evidence, cast doubt on the credibility and authenticity of the documents. In response he said that if he wasn’t genuine he wouldn’t have waited so long without being able to visit his family.
With respect to the second threat letter he thought it had been given to the department but he wasn’t sure and he would see if there were copies with his family.
The Tribunal asked about the information in the new material from his mother and brother. He said his brother told him the first one related to someone was inquiring about him in the neighbourhood and they had guns and were in an SUV. His brother reported this to police. He said a few days later a local resident informed his brother that people in a vehicle were filming the house. His brother went back to the police station to report again but when the police came the people were gone.
He said his dad was also followed and his dad went to the police station. He said his brother was beaten when his was going to another city and his car was pulled over and he was threatened and beaten. He said he went to hospital and the police went with him. He said there should be records of that at the hospital. He said his brother was injured in 2018.
The Tribunal asked why one of the reports made reference to the applicant seeking refuge in Australia when the applicant was a student at that time. He said it was because he had gone to Australia to get away.
The Tribunal raise with the applicant country information regarding the reliability of police FIR in Pakistan and the prevalence of document fraud casting doubt on the reliability of FIR’s as conclusive proof incidents occurred.[4] The applicant said the proof of his account was that he had never returned to Pakistan since coming here and had been separated from his family for ’12 or 13 years’.
[4] DAFT 2022 Report page 47 at [5.54]; DFAT 2019 Report, page 71 at [5.73];
The Tribunal asked why the TTP would still be looking for him after so long and he said that he didn’t know but he did things they didn’t like such as treating women in the medical camps who were dying of pregnancy complications. He said it could be any number of reasons.
The Tribunal took evidence from [Mr A], a friend of the applicant’s from Pakistan who has been living in Australia since 2006. He indicated he and the applicant went to the same school. He has family in [City] and last visited in 2018. The Tribunal asked what he knew about the applicant’s claims for protection and he said that he visited Pakistan in 2010 and came to know through ‘friends’ that the applicant’s house had been attacked. He said the applicant had been involved in social and political activities and after hearing about it he suggested he apply for a student visa. He was told that people had visited the house and opened fire in June/July 2010. The Tribunal asked why the applicant would have been targeted and he said that his family had a school and hospital. All the family were involved. He said he knew about these activities because he talked to the applicant and told him about applying for a visa to come to Australia.
He next saw the applicant in 2013 when he came to Perth. At that time the applicant was studying and working.
The Tribunal asked if there was anything else he wanted to tell the Tribunal and he said he ‘heard things’. He heard that the applicant’s family is under threat and someone is looking for him. When asked what he meant by this he said that when he is talking to other friends in Pakistan they mention people are looking for the applicant. The Tribunal asked how this came up in conversation and who he was talking to and he said it was ‘just when we have a general conversation they say that someone is looking for him’, that he is ‘still in threat or something like’. The Tribunal asked if that was a common conversation to have with people at home and he said it was just asking about friends.
The Tribunal asked if he knew anyone who was a member of the applicant’s party and he named two people who might be members. The Tribunal asked what he knew about the party and he said that he knew the applicant wanted to establish a political party and contest an election. He was worried about the welfare of people in the remote areas and wanted to do something for the education of children and women. He said he knew the applicant has been doing ‘a lot’ with the local members and political campaigns and political parties since he was in Australia. He was aware he had raised money for the Pakistan Justice Party for a charity for a cancer hospital. He mentioned he had campaigned for a political party in Australia.
The Tribunal asked if the applicant’s family were well-known in Pakistan and he said his brother was involved in education and his sister was in the medical profession. He did not know if the family’s school or hospital was still operating.
The Tribunal also took evidence from [Mr B], a friend of the applicant’s from Pakistan who came to Australia in 2009. He met the applicant in 2010 or 2011 through a friend who lives in [City]. He later said they met before in 2007 while the applicant was still in Pakistan and they were in contact via phone. [Mr B] said he returns home every 2 years or so and has returned about five times since arriving in 2009.
The Tribunal asked what [Mr B] knew about the applicant’s claims for protection and he said that he had been in a shooting and had threats. He told the applicant he had been doing social work and that his family had a school and hospital. He said they had been attacked one or two times and he was worried about that. He said the attacks were a couple of months before he met him. The Tribunal asked if he had told him anything about the attacks and he said that he got attacked during school and one time he was shot at while at school or at home, but it was a long time ago.
He said that he and the applicant had been doing studies at the same college when he first arrived. He was not sure when the applicant had applied for protection. The Tribunal asked what social work activities the applicant had been involved in in Pakistan and he said the applicant lived in a tribal area and he has a lot of family members. They ran a school and provided vaccines and ‘these people may not like him’. He said he didn’t know much more than that. The Tribunal asked if he knew who had attacked the applicant and he said the applicant told him they were Taliban people but he didn’t know. He didn’t go to that area and he didn’t want to. The Tribunal asked if he had anything else to tell the Tribunal and he said the applicant was honest and very down to earth and he had been in Australia for a long time so he believed he should get the visa.
Following that hearing additional material was submitted including evidence relating to the applicant’s community and political activities in Australia and the injuries his brother claimed to have sustained in 2018.
A further hearing was held to discuss this evidence and any change in the applicant’s circumstances. At that hearing the applicant confirmed that his circumstances remained the same. He explained the photographic material submitted related to his participation in a number of events, namely:
·Campaigning for a friend who ran for the [Local government] elections;
·Assisting with the organisation and running of a fundraising event in 2016 or 2017 for [a project];
·Participating in a meeting with a visiting member of [a Group in Pakistan] involved in the [work] sector in 2016 or 2017;
·Campaigning for the Labor candidate in the State Election campaign.
[Mr G] provided a statement noting that he knew the applicant ‘for his work for female education and health in rural and tribal areas’. [Mr G] asked the applicant to assist with the [Project] charity fundraising event. [Mr G] stated he ‘knows the applicant is facing life threats in Pakistan but he never stops working for a good cause even living here in Australia’. The Tribunal notes that [Mr G] stated he had completed a Masters in [Subject 2] including research on counter-terrorism and Al Qaeda in his final year and that ‘I know once they (the terrorist groups) choose someone as their target there is no hiding from them’. The Tribunal notes it was not suggested [Mr G]’s evidence was offered as any form of expert testimony on terrorism in Pakistan and the Tribunal did not regard it as such.
The applicant told the Tribunal he obtained the additional material from Pakistan from his brother who posted it to him. He said he found out about the incidents with his family just before the prior hearing and they said they didn’t want to burden him earlier but ‘if it can help we have some incidents’.
The Tribunal asked about the letter from the notary public. The applicant said the notary was ‘right next to police station’ and had ‘access to police records’. The Tribunal asked how the records were obtained and he said he didn’t know. The Tribunal noted it was difficult to see how the notary could say the reports were authentic as the notary was not the source of the police reports. A notary could only state that the documents were genuine copies of originals, they could not attest to the veracity of the reports themselves. The applicant accepted this was the case.
The Tribunal discussed the claims about threat letters again and asked when the letter he provided had been received, and he said it was in around February or March 2010. He said they were thrown into the house or school and they didn’t take them seriously. The Tribunal asked if the letters he mentioned had gone to the house or the school and he said he believed it was the school. He said his father had held on to the letter and sent it to him when he was in Australia.
The Tribunal asked why the letter referred to not taking attacks seriously when on his evidence the letter preceded the attacks on his home and school. He said he had received verbal warnings from different tribal areas by then but he didn’t take them seriously.
The applicant said that in July/August 2010 he commuted to Abbottabad to do the IELTS (English language course). He did the IELTS test in Islamabad in April 2011.
The Tribunal asked if any other incidents had occurred since 2018 and he said that it had gotten worse since 2018 and numerous incidents had occurred when people had been spotted on security cameras. The Tribunal asked why it had gotten worse since 2018 and the applicant said because of the fall of Afghanistan there was a lot of movement going on across the border in KP. The Tribunal asked whether he would be able to move to another area such as Islamabad and he said there was no safe place in Islamabad. He said a lot of people have personal security and no one is safe in Islamabad, not even Imran Khan. He said it was like a warzone there. He said people could be targeted for everything like having the ‘wrong posture’.
The Tribunal discussed the 2021 DFAT Report with the applicant, noting that while there had been an increase in violence after the Taliban assumed power in Afghanistan, this followed a 6‑year decline and incidences of terrorist violence were still markedly below 2014 figures. The Tribunal also noted country information suggested that one reason why terrorist attacks against civilians had fallen in KP was that the militants were changing tactics away from targeting civilians and were targeting security forces, pro-government tribal elders and political leaders in a bid to avoid the public condemnation which followed civilian attacks.[5] The Tribunal noted the applicant did not appear to fall into any of those targeted groups and he said women, teachers and students continue to be targeted. He said he had a profile within the community. The Tribunal noted it accepted there had been attacks on schools and female students and teachers but that within his family that would suggest his sister would have been at risk as a longstanding female teacher. He said his sister was not vocal about women’s education. The Tribunal also noted his other sister had been working as a doctor in the field and yet he claimed he was targeted and had a greater profile than her for that work. He said he was doing the promotion and organising and she was merely working in the clinics.
[5] Pakistan Institute of Peace Studies, ‘Pakistan Security Report 2021’ >
The Tribunal also noted that politically motivated violence has substantially reduced in recent years with only 4 attacks on political leaders and workers in 2020 and that Pakistan had bolstered border security. He said that there is significant unrest.
The Tribunal asked what kind of activities the applicant claimed he would be engaging in if he returned and he said he can’t even think about going back. He said he has been here for 11–12 years and he can’t go back because it would cause too much mental stress. There is no area for him to go when he has been specifically targeted.
Submissions

100. The applicant’s representative made written submissions on 30 May 2021. The representative’s submissions repeated the applicant’s claims to fear harm from the Taliban in Pakistan due to his political opinion and in particular in ‘advocating women’s rights and encouraging women’s education’ and provided ‘further clarification’ and ‘fresh evidence’ to support his claims.
101. The representative also commented on the delegate’s findings, noting, in summary:
·In relation to the delegate’s finding that [Organisation 1] was no longer operating and was not a political party and that the applicant’s political profile was ‘relatively minor and highly localised’ the representative said the long-term goal of the party was to be a political party. The Taliban would have thought it was good to stop him from the beginning;
·Regarding the delegate’s consideration of the threat letter from the Taliban offered in support of his claims, and the delegate’s finding that little weight should be placed on the letter the representative submitted that combined with the 100 membership forms for [Organisation 1] it was unfair to place no weight on the letter;
·Regarding the discrepancy in the date of the shooting (July or September 2010), the applicant got the date wrong at the interview and it was unfair to see this an issue adverse to his credibility;
·Regarding the concern raised as to why the attackers would have left after killing the dog if they were targeting the applicant, there was a commotion and the attackers fled;
·Regarding the delay in leaving Pakistan after the attack (9 months), the applicant was confused and scared and didn’t know what to do. It took him time to do the English language classes and prepare to leave;
·Regarding the fact the applicant’s parents remain at the same address, the Taliban does not target senior citizens who do not pose any threat to them. The Taliban has no real concerns with other family members. Further, the other family members do not share with the applicant any incidents in Pakistan in case he becomes worried;

·The delegate’s concerns regarding the applicant’s claim to have worked with NGOs was explained by the fact that he had not worked directly for the NGOs, which he maintained were operating at the time even though the delegate indicated they could find no record of them, but he had assisted them where possible including with respect to polio vaccinations, seminars for women and setting up medical camps;
·Although the delegate expressed concerns about why the applicant’s sister as an educated woman was not harmed by the Taliban, this was explained by the fact she was not a member of his organisation and was not a threat to them. Also to be ‘on the safe side’ she quit work as [an Occupation 1] at that time, got married and was living as a housewife;
·The delegate’s finding that there were limited attacks in 2014 against NGOs reflected statistical data which was ‘highly erratic and unreliable’ and it should not be relied upon;
·Regarding the delay in seeking protection, the applicant was hopeful he would get permanent residency through a skilled pathway initially and complete his studies. However, the skilled pathway ‘did not materialise as was initially expected’ and his marriage did not last. He applied for protection when he became aware of the possibility;
·The applicant has never travelled back to Pakistan since arriving in Australia which is a measure of the fear he holds.

102. The Tribunal notes that while the representative made submissions that the applicant lived in the Swat Valley, country information indicates that [Village] is in the [District] and not the Swat District. The applicant did not suggest in his evidence that [Village] was in the Swat Valley.
103. The representative included a number of articles including an article about girls in schools in the KP area including Malala Yousafzai, a schoolgirl who was shot in Mingora, Swat District, in 2012. The submissions also included an article from Human Rights Watch in 2017 regarding Taliban and other militant group attacks on schools in Pakistan. The article details attacks on Pakistani schools and the fact that the Pakistani government had not successfully prosecuted the perpetrators in most instances. The submissions included a further article from UNESCO in 2021 regarding Malala as a symbol of the right of girls to education.
104. Later submissions accompanied additional FIRs and a statutory declaration from the applicant as well as statutory declarations for [Mr A] and [Mr B]. Those submissions addressed the late provision of this evidence contending that the applicant only came to know of the material recently as his family were protecting him and did not want to burden him with fear or stress. It was contended that in such circumstances the lateness of the material was not ‘unreasonable’ as the applicant had no knowledge of it until just before the hearing before the Tribunal.
105. The submissions also included material addressing the general level of violence in Pakistan. Those articles included a story about a teen who died intercepting a suicide bomber at his school in Hangu, Hangu District, KP, in 2014 and a story about an attack on a Peshawar school in 2014 in which 141 people, mostly children, were killed.
Consideration and findings
Applicant’s identity and country of reference
106. The applicant travelled to Australia on a Pakistani passport and claims to be a Pakistani national. Copies of the applicant’s Pakistani passport and other identity documents were provided to the Department and the Tribunal. The applicant confirmed at the hearing that he was a citizen of Pakistan. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
107. On this basis, and given the delegate had no concerns about his claimed nationality, the Tribunal accepts the applicant is a national of Pakistan and has assessed his claims for protection accordingly. The Tribunal finds that the applicant is a citizen of Pakistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
108. There is no evidence before the Tribunal that the applicant has a right to enter or reside in any country other than Pakistan.
Applicant’s claimed profile
109. In summary, the applicant claims that if he returns to Pakistan, he fears harm from Sunni extremist groups including the Pakistani Taliban (TTP) due to:
(a) His actual or imputed political opinions, due to his activities in Pakistan, including:
a.his involvement with [Organisation 1];
b.his work with NGOs working against sectarian violence and honour killing of girls and women;
c.his work with NGOs on vaccination programs and medical camps; and
d.his involvement as a teacher and [Occupation 3] at a local school owned by his family in [Village] – [School];

(b) being perceived as an infidel due to having spent time in a Western country;
(c) generalised violence in Pakistan.

110. The applicant claims he will not be afforded state protection as the Pakistani Taliban and other extremist organisations control Khyber Pakhtunkhwa. He claims the authorities are unwilling to protect him due to a lack of capacity to deal with Islamic extremists. The applicant claims he cannot relocate within Pakistan due to the fact terrorists operate throughout Pakistan.
111. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in several decisions.[6]
[6] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.
112. The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[7] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[8]
[7] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[8] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
113. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[9] MIMA v Rajalingam (1999) 93 FCR 220.
[10] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
114. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision‑making.[11] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[12]
[11] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[12] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
115. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[13]
[13] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
116. The Tribunal accepts aspects of the applicant’s profile, summarised as follows:
·He is a Sunni Muslim who was born in [Village], [City], KP;
·His immediate and extended family continue to live in Pakistan, including in the [Village] and the broader [District];
·He is of Han ethnicity;
·He is the youngest son of an established family in [Village]; and
·He has been in Australia for a prolonged period.

117. Having regard to all the evidence, the Tribunal also accepts that the applicant’s family was involved in running a school and hospital in [Village]. These projects were funded by his parents. The hospital was run by his sister who is a medical practitioner. The school was run by his other sister who was a teacher and the school principal. On the applicant’s evidence, both projects ceased operating in late 2010/2011, the school at the end of the 2010 school year and the hospital when his sister married in 2011 and ceased working.
118. However, the Tribunal had significant concerns about some aspects of the applicant’s claims. As noted above, there were concerns regarding the veracity of some documents submitted to the Tribunal. These concerns were due to the fact the documents and the claims they supported were raised very late in the proceedings without reasonable explanation and in light of country information regarding the prevalence of fraud in Pakistan i. As discussed further below, these concerns, when considered in the context of the evidence and claims overall, caused the Tribunal not to place significant weight on the documents or on the late claims raised by the applicant, principally with respect to incidents involving his father and brother after he left Pakistan and which he says were directed at him or occurred because of his claimed profile with extremists.
119. The Tribunal also had concerns regarding the delay in seeking protection and the fact the applicant only sought protection following the breakdown of his marriage and the withdrawal of his partner visa application. The applicant claimed to have been targeted prior to first arriving in Australia and to have left Pakistan due to that fear, however he came here on a student visa following discussions with [Mr A] and did not seek protection until some years later when his partner visa application was withdrawn. This suggests a motivation for seeking protection other than a fear arising from events occurring prior to his initial arrival in Australia.
120. The Tribunal was also concerned about inconsistencies in the applicant’s claims over time. This included additional claims regarding threats against the school and subsequent threats against his family including the incidents involving his father and brother. These concerns are detailed further below.
Risk from extremists due to political opinion
121. The applicant claims he will be at risk from the Pakistani Taliban and other extremist groups in Pakistan due to his actual or imputed political opinions.
122. As noted earlier, the applicant claims that if he returns to Pakistan, he fears harm from Sunni extremist groups including the Pakistani Taliban (TTP) due to his activities in Pakistan.
123. The Tribunal considered country information regarding the risk from extremist groups in the Khyber Pakhtunkhwa, including that contained in the 2019 and 2022 DFAT Country Reports.
124. Country information suggests that LeI (or LeJ) is a militant group that is active in Khyber Tribal District. Pakistani military operations in 2014 reportedly crippled the group’s operational capabilities in Khyber District. As a result, members of LeI relocated to Afghanistan. It has been reported that LeI works together with Islamic State in Khorasan Province (ISKP) in Afghanistan and both are ‘important allies’. In 2015, LeI announced its merger with Tehrik-e Taliban Pakistan (TTP, also called Pakistani Taliban). LeI was involved in two ‘terrorist attacks’ in 2019 compared to 10 in 2018 according to PIPS (Pak Institute for Peace Studies). PIPS has reported that LeI is losing its strength due to the deaths of important commanders and due to internal fighting in Pakistan and Afghanistan.[14]
[14] EASO, ‘Pakistan Security Situation’, October 2020, 20201102100212, pp.36-37.
125. DFAT notes that:[15]
[15] 2020 DFAT Country Report at [2.14]
Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan.

126. The TTP is an umbrella organisation that was formed out of about 13 distinct Pakistani Taliban groups in 2007. The initial objectives of the organisation were the implementation of Sharia law, the ousting of coalition forces from Afghanistan and a ‘defensive jihad against Pakistani security forces’. The group was banned in August 2008 by the Government of Pakistan. Military operations during 2011–2015 eliminated the strongholds of the TTP in the former Federally Administered Tribal Areas (FATA). The TTP is commonly described as an anti-state or anti-Pakistan group[16] (rather than as a sectarian or anti-Shia group) but the TTP (and/or groups splintered from the TTP) have perpetrated sectarian attacks such as against the Shia community in Kurram.[17]
[16] EASO, ‘Pakistan Security Situation’, October 2020, 20201102100212, p.27; DFAT, ‘DFAT Country Information Report: Pakistan’, 20 February 2019, 20190220093409, p.20.
[17] PIPS, ‘Pakistan Security Report 2017’, January 2018, CIS7B83941282, p.43.
127. Available reporting indicates that over the period from 2011 to 2021, Khyber Pakhtunkhwa (KP) Province had seen an overall gradual decrease in the attacks caused by extremist groups. This was also the case for other areas of Pakistan. PIPS, for instance, reports of KP that in 2012 there were 844 terrorist attacks (causing 1,032 deaths and injury to 2,176 other persons), whereas in 2020 there were 79 attacks (causing 100 deaths and injury to 206 other persons). These numbers would represent roughly a 90 per cent reduction in extremist attacks over the 8 years. However, KP has continued to see more overall attacks than Pakistan’s other regions, and in some years the situation has improved only slowly or (in certain regards, or in some locations) there has been no improvement or some deterioration. Reports indicate that the bulk of such incidents continued to occur in the former FATA area of North Waziristan and that the extremist group which was responsible for most of the violence in these areas in 2020 was the TTP, and its associated groups and splinters.
128. In January 2021 PIPS reported that continuous anti-militant operational and surveillance campaigns by security forces and police counter-terrorism departments, as well as some counter-extremism actions taken under the National Action Plan, had helped sustain the declining trend in terrorist attacks. PIPS also observed that these plummeting numbers do not, however, suggest that the threat of terrorism has been completely eliminated. In January 2019 PIPS opined that the problem of a lax state response to the security challenge of KP is partly linked to the continuing slow transition of implementation of erstwhile FATA’s merger in KP, mainly due to multiple bureaucratic, political and legal hurdles, which need to be addressed immediately.
129. In January 2021 PIPS reported that in 2020 attacks which had been carried out were predominantly against security forces but also included targeted tribal elders and political leaders.
130. In response to country information the applicant told the Tribunal that the situation had worsened recently and that politicians have been killed and troops were withdrawing from the KP area. He said the area was out of the control of the authorities.
131. The 2022 DFAT Country Report addresses the general security situation in the following terms:[18]
[18] 2022 DFAT Country Report at [2.34]–[2.36].
Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks.
Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.

132. DFAT states that in-country contacts have advised that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan (DFAT notes that TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021). Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.[19]

[19] 2022 DFAT Report at [2.38].
133. The Tribunal accepts that the security situation in Pakistan is unstable and that there has been an uptick in extremist violence since mid-2021 following a decline over a number of years. However, country information suggests that attacks continue to be directed at individuals and groups with a particular profile. This includes security forces, pro‑government tribal elders and political leaders.
134. The applicant claims to have a significant political profile in KP due to:
·His involvement with [Organisation];
·His work with NGOs working against sectarian violence and honour killing of girls and women;
·His work with NGOs on vaccination programs and medical camps; and
·His involvement as a teacher and [Occupation 3] at a local school owned by his family in [Village] – [School].

135. He claimed these activities drew him to the attention of the Pakistani Taliban who targeted him because he was well-known for engaging in activities which were opposed to their extremist agenda. He claimed in particular to be an advocate for women’s education and against honour killings of females. He likened his profile to that of Malala though contended he was more prominent due to his activities.
136. While the Tribunal accepts the applicant’s family have been involved in activities which may have brought them to the adverse attention of extremist groups or supporters in the past, the Tribunal had concerns with the credibility of the applicant’s claims to have been personally targeted by the Taliban in Pakistan due to this profile when in Pakistan and to be of ongoing interest to the Taliban on this basis.
137. Regarding the applicant’s claims regarding [Organisation 1], the Tribunal notes there was very little evidence offered to corroborate the applicant’s claims regarding the activities or profile of the organisation. The Tribunal had a number of concerns regarding the applicant’s claim to be at risk of serious or significant harm due to his activities, leadership or association with [Organisation 1], including:
·As recorded in the delegate’s decision, the applicant contended [Organisation 1] was not a political party. It was not registered as a party and was not engaged in political activities or contending local or other elections. Before the Tribunal he claimed he had tried to get the organisation registered by sending the manifesto to the ‘KP head office’ but it was not easy. When asked if he had any evidence of his attempts to register the organisation he said mostly it was verbal.
·The applicant’s evidence suggesting a relatively small organisation with a largely passive membership and low level activity including monthly meetings and supporting camps organised through the hospital. The applicant claimed the organisation had around 100 members, offering a sample of translated membership cards as evidence. Members were recruited through word of mouth. Most of the members were from the [City] area. None of his family members were members and he was the only office holder of the organisation though he told the delegate his father established the organisation with him. They met each month unless they were busy with work and generally held meetings at his parents’ residence. Around 20–25 people attended meetings. The applicant claimed the organisation was funded by his father but that the applicant was the only office bearer and his father was not involved in the organisation other than to help draft the manifesto.
·As further noted in the delegate’s decision the applicant claimed the party championed women’s rights and was against honour killings though neither is mentioned in the manifesto. None of the members of the organisation were women.
·The applicant claimed the organisation conducted medical camps which he organised. His sister provided the medical services and the camps were organised through the hospital owned by his family. That organisation was funded by his parents and run by his sister and the circumstances suggest, to the extent medical activities were undertaken, this was under the auspices of the hospital. There was no evidence offered to corroborate claims the applicant was working at the request or behest of any international or local NGOs providing medical services in the region.
·While [Mr A], [Mr B] and [Mr G] mentioned the applicant being engaged in social activities in Pakistan, none mentioned him being the president of a political or social party such as might suggest an organisation of recognised social standing or profile. Likewise, the applicant’s father’s statement makes no mention of the applicant’s membership or leadership of [Organisation 1]. This caused concerns regarding the credibility of claims the organisation or the applicant as president was of such stature that the applicant’s involvement placed him at ongoing risk from militants some 10 years after it ceased operating. This is particularly so given it was the applicant’s father who assisted in writing the organisation’s manifesto and funding its activities yet there was no evidence his father had been targeted for any harm due to his own involvement in funding and establishing [Organisation 1] despite remaining in the same area and in the same home in the intervening 10 years.

138. Having regard to evidence professed by the applicant the Tribunal is prepared to accept on the basis it is plausible that the applicant, with the assistance and funding of his father, established [Organisation 1] to promote the applicant’s interest in social welfare initiatives as expressed in the manifesto. The Tribunal is also prepared to accept the organisation had a general membership of 100 people interested in supporting its activities.

However, the Tribunal does not accept based on the evidence that this organisation was a political party nor that the applicant sought to have it afforded such stature. On this point his evidence was inconsistent over time as recorded in the delegate’s decision and in his application for protection. Further, the Tribunal does not accept that the organisation had any particular prominence or stature in the local or broader Pakistani community such that it came to the attention of extremists leading to the applicant’s personal targeting by the TPP or any other extremist group, or that it would lead to him being of ongoing adverse interest and at risk of serious or significant harm on return to Pakistan.

140. The Tribunal also had concerns regarding the applicant’s claims to have been targeted because he was teaching at the school. In this regard the Tribunal notes the applicant’s evidence was that he taught at the school after he graduated around 2008. He taught [Subject 5] and did [an administrative task] for ‘pocket money’. The applicant’s sister ran the school and had done for some time while he was still a student. The applicant claims to fear harm on the basis that extremists visited the school and asked the caretaker or doorman where he was. He was in the school and was not detected. He claimed that parents heard about this event and withdrew students and the school was closed. He says his sister married and withdrew from teaching.
141. The applicant supported this claim with an FIR and a threat letter from a terrorist group which he claims was delivered to the school. As noted in the delegate’s decision, the applicant’s initial evidence before the delegate was that the attack on the school occurred in September but the FIR referred to an attack in July. The applicant explained this discrepancy was due to his not being able to properly remember the dates. Further the FIR records the visitors to the school inquiring about ‘the owner of the school’. However, on the applicant’s evidence he is neither the owner of the school, which was his father, nor its head or principal, which was his sister. This would suggest it the applicant was not the person sought by the alleged TTP members. The Tribunal notes that the applicant’s father’s statement makes reference to his son being threatened by terrorists but makes no reference to him being targeted due to his involvement with the school. This casts some doubt on the genuineness of his claims to be at risk on this basis.
142. The Tribunal also has concerns regarding the letter he claims was left at the school by terrorists. That letter names the applicant and states:
You are our target because you take no effect from our warnings not our attacks. You have not closed your school as well as other social institutions and National Ittihad Party activities. We shall abduct your family members and kill them.

The letter is undated. The Tribunal was concerned that the letter was the only document among the reports and statements to name the political party. Further, the letter referred to the applicant failing to close his school yet the applicant’s father owned the school and it was run by his sister. In such circumstances the Tribunal does not regard it as credible that a local terrorist group who was aware of a small social organisation like [Organisation 1] by name would mistake the applicant, then [Approximate age], as the owner and administrator of the school. Such a claim is not credible either on the evidence or on the basis of country information, which suggests that Islamist views regarding gender roles, and in the particular the education of girls, would have seen the applicant’s sister and father escape notice while the applicant was mistaken for the owner of the school.
143. In this regard the Tribunal does not regard the applicant’s explanation that his sister was not at risk because she was a woman and kept a low profile to be credible. If the applicant were at risk for advocating for women’s education as a young [Subjects 5 and 6] teacher, it is reasonable to assume both on the facts and based on country information that the applicant’s sister as a female school principal educating girls and running a coeducational school for several years would have a significantly greater risk profile than the applicant in terms of targeting by extremists.
144. Given country information regarding attacks on schools in KP the Tribunal is prepared to accept extremists may have threatened school staff in 2010. The Tribunal also accepts that students have withdrawn in the face of those threats and the applicant’s family may have made a decision to close the school. However, the Tribunal notes that on the applicant’s evidence this was done at the end of the school year in December 2010 and in the context of declining enrolments. This suggests the motivating factors for the school’s closure were other than an incident which had occurred some 8 months prior, in March 2010. In any event, given the applicant’s self-described role at the school as a teacher in two subjects and [Occupation 3], the fact it was run by his sister including for some significant time before he taught there, and the fact he was not the owner of the school and what he claims to be a contemporaneous record of the events indicates the threats were directed at the owner of the school, his father, the Tribunal does not accept the applicant was personally targeted in an attack on the school in 2010 or at any other time.
145. Further, the school ceased to operate in December 2010 or early 2011 and had previously operated under the stewardship of his sister who he claims no longer works as a teacher. The Tribunal does not accept that the applicant is at risk due to his prior involvement with the school. Further the Tribunal does not accept he would be involved in running a school in the future given his lack of qualifications as a teacher and the fact the school’s prior operation appears to have been linked to his sister’s leadership and qualifications as a tertiary qualified teacher.
146. The Tribunal has similar concerns about the applicant’s claim to have been involved with NGOs supporting community health programs including vaccination. On the evidence the medical camps the applicant claimed he was responsible for organising were held under the auspices of this father’s hospital, run and manned by his sister. Again, if the applicant were at risk for facilitating medical camps to allow medical treatments it is reasonable to assume a woman who provided these medical services in the camps would have been at least at an equal, if not higher risk. Yet it is claimed she was never targeted. The Tribunal does not accept the applicant’s explanation that his sister had a lower profile than he did because she got married and stopped practising medicine. This is inconsistent with his earlier evidence that she married after he left Pakistan and later evidence that she stopped working in 2011, after the applicant left. Further, this explanation does not explain why the applicant, and not his sister, would have been the intended target of extremist attention when he was in Pakistan. While the applicant cited the example of Malala as analogous to his own as she had a profile as a critic of extremists, the Tribunal did not accept the applicant’s profile was analogous. Country information suggests Ms Yousef was targeted as a vocal female student for women’s education in her home area in the Swat Valley. The Tribunal does not accept the applicant had a similar profile within his local area or that he possessed similar immutable characteristics as would have made him a target.
147. In any event, based on the evidence, the Tribunal accepts the applicant’s sister and his father may have closed the hospital after she married and moved to another city. The Tribunal does not accept they did so on account of any threats against the applicant, or the medical clinic, and the Tribunal does not accept they did so until after the applicant had left Pakistan.
148. There was no corroborative evidence the applicant was working for or with any international organisation such as the WHO providing medical or vaccination services in KP. The Tribunal accepts that it is possible the family hospital, and his sister as the qualified medical professional attached to the hospital, may have provided services or support in conjunction or consultation with international organisations funding medical programs in Pakistan. However, there is no evidence the applicant was working with those organisations in any manner which would have given him a personal profile with extremists. As neither his sister nor the hospital was targeted in association with this work, the Tribunal does not accept that the applicant was targeted as claimed or would be on return to Pakistan. The Tribunal does not accept the applicant faces a real risk of serious or significant harm on this basis.
149. The Tribunal also raised a concern with the applicant at the hearing that his family had continued to live and work in the same area in the 10 years since he left Pakistan without reporting incidents of harm directed at them, including his parents who remained in the same home in which the applicant was living when he claimed to have been attacked and his dog killed. This cast doubt on his claim to be at risk of harm from extremists who had also threatened his family in the claimed threat letter, a concern detailed in the delegate’s decision. The delegate’s decision records that the applicant claimed his family had not been further targeted because the extremists were only interested in him as he was the most active and had the highest profile. His parents were elderly and the extremists did not target senior citizens and his sisters no longer worked and did not have a significant profile. This was similar with his explanation at the first hearing when this concern was raised with him by the Tribunal. However, prior to the second hearing the applicant produced several police reports recording complaints about attacks on his family members which he claims were directed at him or determining his whereabouts.
150. When asked why these documents had not been produced earlier, despite relating to incidents as long ago as 2013, the applicant said he did not know about them because his family did not tell him as they didn’t want to worry him. When the Tribunal raised a concern that this may not seem credible in circumstances where his family were aware he was seeking protection and where he had been refused protection because his claims to be at risk of harm had not been accepted, he said that he didn’t tell his family until recently that he had been refused and they had only told him when he had asked. This is despite his father providing a statement in support of the applicant’s claims in 2014 which made no reference to what are now claimed to be threats and approaches to his brother in 2013 and no additional information being provided by the family despite a now claimed attack on his brother in 2015.
151. The Tribunal does not regard it as credible that the applicant’s family, having furnished the statement from his father and two initial FIRs, would not inform him until many years later that they had suffered ongoing threats from extremists looking for him and that those threats had been the subject of police reports which they had held for more than 5 years. The Tribunal further does not accept that during that period, the applicant’s family did not mention efforts to locate the applicant or an incident of harm directed at his brother. Combined with other concerns regarding the veracity of such documents and with elements of the applicant’s claims, the Tribunal does not accept the FIRs relating to incidents in 2013, 2015 and 2018 are genuine and finds they were produced to bolster the applicant’s claims for protection. Further, the Tribunal does not accept the late claims by the applicant that extremists have threated his family members in 2013, 2015 and 2018 seeking his whereabouts.
152. The Tribunal has significant concerns about these claimed incidents and the evidence produced to support them. As mentioned earlier, credible country information put to the applicant at the hearing (and by the delegate) suggests document fraud in Pakistan is a significant issue and FIRs cannot be relied upon as proof of the incidents reported. In this instance they are the only evidence offered to corroborate these events, other than the medical report produced after the second hearing, and they are offered a significant period after the event. Further, the claims of further harm were in direct contrast to earlier evidence of the applicant that no harm had come to his family due to their low profiles and his parents’ ages. This causes significant concern regarding their credibility.
153. The applicant also claimed that the fact he has not returned to Pakistan is proof that he is at risk of serious or significant harm there. The Tribunal accepts that the fact that the applicant has not returned to Pakistan lends supports to his claims to fear returning there. It does not, however, establish that such fears are well-founded, nor that his desire reasons for not wanting to return give rise to a claim for protection. On its own, a lack of return travel to Pakistan is not sufficient to establish a seral risk of serious or significant harm arises if the applicant were to return.

Notwithstanding country information regarding the level of violent activity by extremists in KP and in Pakistan more broadly, the Tribunal is not satisfied that the applicant would be targeted by extremist groups for the essential and significant reason of his political opinions, noting that the Tribunal does not accept that the applicant was personally targeted in the past in Pakistan or in Australia or that he would be so on return to Pakistan. While the Tribunal accepts his family’s prior activities may have drawn the attention of extremists when they were operating more than 10 years ago, the Tribunal does not accept that the family would still be of interest on that basis having ceased operating the school and medical facility. Further, the Tribunal considers that these activities, and not the applicant, would have been the target of attention, with the heads of those organisations, the applicant’s sisters and his father, being persons at risk to the extent that such risk was present.

155. The Tribunal accepts from the general personal narrative of the applicant that he has views opposed to Sunni extremist groups. The Tribunal also accepts that he is interested in the political process as demonstrated by his support for candidates in Australian elections. However, the applicant is not a political leader or advocate for anti-extremist causes such that he would face a real risk of serious harm on return to Pakistan were he to engage in similar activities, which he did not say he would. There was no credible supporting evidence that the applicant had been a public advocate against extremists in Australia or would be on return to Pakistan. The Tribunal does not accept he is at risk on the basis of that claimed activity or profile. The Tribunal does not accept that he faces a real chance of serious harm for the essential and significant reason of his actual or imputed political beliefs on return to Pakistan.
Returnee from a Western country or infidel
156. The applicant also claimed to fear harm from extremist groups on the basis of being a returnee from a Western country or being perceived to be an infidel on that basis.
157. DFAT assesses that returnees are ‘typically’ able to reintegrate in Pakistan, noting some may be in debt to people smugglers. As the applicant left Pakistan lawfully on a valid visa and did not claim any risk due to debts in Pakistan, this qualification does not appear to apply to his circumstances. Further, DFAT finds that Pakistanis do not face a ‘significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.’[20] DFAT goes on to note ‘societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad’.[21]
[20] 2022 DFAT Country Report at [5.30].
[21] Ibid.
158. The Tribunal notes the applicant provided very little evidence in support of this claim. As noted above, while the Tribunal accepts he does not wish to return to Pakistan and that his lack of return since arriving in Australia lends support to his claims to fear returning there, that is not sufficient to establish those fears are well-founded, nor that they give rise to a claim for protection.
159. The Tribunal finds the applicant identifies as a Sunni Muslim and there is no information before the Tribunal to suggest he would not continue to practice as a Sunni Muslim in Pakistan. Further, the applicant has a strong family network in Pakistan, was educated there and is familiar with its language and customs. For the reasons expressed earlier, the Tribunal accepts from the general personal narrative of the applicant that he has views opposed to Sunni extremist groups but finds he does face a real risk of serious or significant harm on that basis.
160. Based on the applicant’s personal circumstances and credible country information, the Tribunal does not accept that there is a real chance he would suffer serious harm as a person who had spent a significant time abroad nor that he would be imputed to be an infidel for that reason and be at risk of harm as a result.
Cumulative consideration
161. The applicant also claimed to be at risk of harm from extremists to his profile as:
a.Head of [Organisation 1] supporting women’s rights and education;
b.A teacher at a school educating young women;
c.Organiser of medical camps supporting the outreach work of health‑based NGOs in the KP region and providing medical care to women; and
d.A returnee from the West or perceived infidel.

The Tribunal does not accept on the evidence that any of the claimed aspects of the applicant’s profile individually or cumulatively give rise to a real chance of serious harm for a Convention reason. As noted earlier, the Tribunal does not accept that the applicant’s prior work in his family’s medical centre and outreach work and local school work drew him to the personal attention of extremists as claimed, particularly given the significant time which has passed since those activities were ceased, the time since the applicant has left the country and the lack of credible evidence that his family members have been targeted for their involvement in those activities despite remaining in the local area during the intervening period.

163. Similarly, the Tribunal does not accept that the applicant faces a real chance of serious harm for the reason of being the former leader of [Organisation 1]. The Tribunal does not accept based on the evidence and credible country information that the applicant’s profile as a leader or member of this organisation was such that it would have drawn him to the adverse attention of extremist groups in the past. Further, given the organisation ceased prior to the applicant’s departure more than 10 years ago, the Tribunal does not accept the applicant would face a risk on that basis in the future.
164. The Tribunal notes that when invited to tell the Tribunal what activities the applicant would engage in on return to Pakistan he said he couldn’t even think of returning. The Tribunal notes the applicant has been engaged in community fundraising activities in Australia and has worked at a supporter level on local political campaigns. The Tribunal considers that were he to engage in such activities in Pakistan on return the Tribunal considers based on credible country information that this would not give rise to a significant political profile and would not place him at a real risk of significant harm from extremists. He did not indicate any intention to engage in activities which would place him at a real risk of serious or significant harm.
165. The Tribunal notes his father who funded [Organisation 1], school and medical clinic has remained living in the Peshawar area, and while he made late claims that his father and brother had been threatened or harmed by extremists, the Tribunal finds there is no credible evidence that his family members have been targeted or harmed since he left Pakistan on the basis of their own involvement or support for these activities or on the basis of the applicant’s claimed profile.
166. The Tribunal notes the applicant’s submission that he left Pakistan more than 11 years ago and has never returned. He claims as a result he has missed significant family events. He submitted this is evidence supporting his claim to fear harm on return to Pakistan. The Tribunal accepts the applicant does not wish to return to Pakistan. There can be many reasons for leaving a county and not wanting to return which do not give rise to a claim for protection. The Tribunal considers that while not returning to Pakistan is consistent with a claim to fear harm on return, it is not evidence of a well-founded fear of serious harm on return.
Refugee assessment
167. In assessing the prospective exposure faced by a given applicant to harm in Pakistan on return, the Tribunal is required to consider the applicant’s claims individually and cumulatively.
168. The Tribunal notes that the applicant holds views in opposition to Sunni extremist groups in Pakistan. However, based on credible country information and the Tribunal’s assessment of the applicant’s prior history and likely profile in Pakistan on return, the Tribunal does not accept that the applicant would face a real chance of serious harm on that basis. Nor does the Tribunal accept, based on country information, that the applicant has a well‑founded fear of persecution on the basis he has spent significant time living in the West and would be perceived as an infidel. The Tribunal notes that the applicant is a practising Sunni Muslim with strong family ties in Pakistan. Based on country information cited above and assessed in the context of his personal circumstances, the Tribunal does not accept he faces a real chance of serious harm on that basis.
169. Further, the Tribunal has assessed his individual personal profile and has found that the applicant does not face a real chance of serious harm being directed at him for a Convention related reason on this basis, individually or cumulatively.
170. Accordingly, for the purposes of this assessment, the Tribunal finds that the applicant does not meet the requirements of s 36(2)(a) of the Act, because the harm feared does not fall within the limbs of Article 1A of the Convention.
Complementary protection assessment
171. Having found that the applicant does not satisfy the refugee criteria, the Tribunal must proceed to consider the alternative, ‘complementary protection’ criteria, at s 36(2)(aa) of the Act. The test the Tribunal must apply here is whether or not there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Pakistan, now or in the reasonably foreseeable future, the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of his return to Pakistan.
172. The applicant’s claims for complementary protection are the same as those put forward in relation to his refugee claims. The Tribunal has not accepted that the applicant has an adverse political profile because of his work as a teacher in his family’s school, his work organising medical camps through the family clinic or any associated real or perceived affiliation with NGOs doing health work in his home area or due to his involvement as a member or leader of [Organisation 1]. The Tribunal has also not accepted the applicant would face a real chance of persecution as a returnee from the West or perceived infidel due to having spent significant time in the West. The Tribunal has not accepted the applicant is of interest to the TTP or any other extremist group or person in Pakistan.
173. In assessing whether the applicant faces a real risk of significant harm on return to Pakistan, now or in the reasonably foreseeable future, the Tribunal must consider the various risks individually.
174. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the reasons detailed above, the Tribunal finds that there is no real risk the applicant will be significantly harmed for the reasons claimed, individually or cumulatively.
175. The Tribunal notes that ‘significant harm’ under s 36(2A) of the Act defines this in a manner that implies a standard of particularly grievous harm, committed by an agent of harm.
176. The Tribunal notes the applicant speaks, reads and writes in English, Urdu and Hindko. He completed high school in Pakistan and has several years’ experience working in Pakistan. His immediate family, with whom he was living prior to coming to Australia, remain living in KP where his family owns property. The Tribunal is satisfied the applicant will be able to rely on his family, qualifications and work experience to support himself if he returns to Pakistan in the reasonably foreseeable future.
177. The country information cited by the applicant’s representative that is included in the 2022 DFAT Report indicated that while extremist violence in Pakistan has risen since 2021, targeted violence remains principally directed at security forces and those with a particular religious or political profile in the community. The Tribunal has found the applicant’s profile is not such as would give rise to adverse attention from extremists groups, taking account of this credible country information. The Tribunal is satisfied the applicant will be able to subsist on return to Pakistan and will not suffer or be subjected to torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment as a necessary and foreseeable consequence of his return. There is no evidence to suggest the applicant will be arbitrarily deprived of life, or that the death penalty will be carried out if he returns to Pakistan in the reasonably foreseeable future, having regard to credible country information.
178. For the reasons given above, with respect to the real chance of serious harm for the reasons claimed the Tribunal is not satisfied there is a real risk the applicant would suffer significant harm now or in the reasonably foreseeable future for any of the reasons made in his claims on his return to Pakistan.
Summary
179. 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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

182. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
Senior Member

[2023] AATA 2445

27 April 2023

Key Legal Topics

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Immigration

Administrative Law

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Procedural Fairness

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