1720197 (Refugee)

1720197 (Refugee) [2020] AATA 3297 (10 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720197
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:10 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 August 2020 at 7:57pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from Taliban – NGO medical support worker from same village as Taliban leader – expected to join or financially support – threats and extortion attempt – credibility – voluntary returns to home country on four occasions, totalling nearly a year – vague knowledge of medical procedures – dob-in letter claiming applicant provided false documents – country information about returnees – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 424AA, 438
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 14 August 2015. A copy of the applicant’s Pakistani passport was available on the Departmental file. Having viewed a copy of the applicant’s passport and there being no contention over his citizenship, I find that the applicant is a national of Pakistan and as such Pakistan is the receiving country.
The delegate refused to grant the visa on the basis that the applicant’s claims of fearing harm arising from extremists was not credible because the delegate gave little weight to the documentation, disbelieved the claimed threats, and did not believe he worked on a polio eradication program, which was claimed to be the cause of the threats. The delegate noted that the applicant had returned on multiple occasions to Pakistan and that there was a lengthy delay in applying for protection. Overall, the delegate was not convinced that the applicant had any anti-Talban profile such that he would be harmed.
With the consent of the representative, the applicant appeared before the Tribunal on 29 June 2020 to give evidence and present arguments. The applicant attended the premises of his representative, joining the member in the hearing by video using Microsoft Teams. At the outset, the applicant confirmed that the room was quiet and private. The connection quality throughout the hearing was good. The hearing was conducted according to the guidelines of the Special Measures Practice Direction of 29 April 2020.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of the applicant’s claims: The applicant is a [Age]-year-old Pakistani male from South Waziristan Agency. He claims that he faces harm upon return to Pakistan for reasons of having worked as a polio outreach worker for an NGO and that the Taliban had made threats against such workers. He claims that he is known to the Taliban as he is from the same village as a former leader. In addition, the applicant fears harm for reasons of having lived abroad in a Western country along with discriminatory treatment by the Pakistani security apparatus for reasons of his ethnicity. He fears for his own life and also that of his children who remain living in Pakistan with his wife.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and findings of fact
The applicant completed primary education in [Location 1], South Waziristan Agency, Pakistan. He claims that he moved to Islamabad in 1989 because his father was seriously ill. He stated that his father subsequently died in 1992. The applicant claims that he remained in Islamabad where he has a share of the family home until 2006 when he moved to Peshawar for two years. Then he moved to Islamabad’s twin city of Rawalpindi, where he and his family stayed until he moved to Australia. The applicant stated that if he was to return to Pakistan he would move to Islamabad. The applicant’s wife and children currently live in Islamabad. The applicant claims that his family home in [Location 1] was demolished in 2008 by the Taliban, in part as a show of the damage they can inflict.
The applicant claims that one of the former leaders of the Taliban, [Mr A], was also from [Location 1]. He claims that he was expected to join the Taliban or financially support them.
He claims that he joined [Organisation], an NGO that supports the disabled, [in] October 2006 and resigned [in] June 2008. He claimed that his role was social mobiliser. He claimed to have been working in [Location 2], Khyber Agency (close to Peshawar).
The applicant claims that the reason he resigned was that [Mr A], the commander of the Taliban, was from [Location 1]. [Mr A] was taken from [Country 1] to [Country 2] by US forces and then released in [year]. He established himself in [Location 1]. He warned that if NGO workers would not leave their jobs, he would kill them.
The applicant claims that the Taliban sent a letter dated [May] 2008 to his brother advising the applicant to attend a centre in [Location 3], a location near their village, by [Date] April 2008. He claimed that the threat was that if he didn’t attend, then he would be responsible for the consequences. When his brother called to let him know of the letter, the applicant claims that he advised his brother to give up everything and move to Islamabad. At that time the applicant and family were in Peshawar.
The applicant claims that [in] June 2008 he received a second letter from the Taliban. In the second letter a fatwa was issued against him with a sentence of murder because he didn’t attend [Location 3].
The applicant claims that he then resigned, [in] June 2008, and moved to Rawalpindi with his children. Thereafter he claims that he started studying online. He claims that even his family did not know where he was during this time.
The applicant claims that in January 2010 a friend of his who was [an entertainer] was murdered. He was locked in his room and gas was released and a fire was lit. At that stage the applicant claims that he chose to apply to study in Australia.
He arrived in Australia [in] January 2011. Since then he has visited Pakistan four times. The applicant claims that on all four occasions he went to Rawalpindi and stayed with his family. He has children who are [Ages].
The applicant claims that [in] March 2015 he visited Pakistan for the purpose of attending the marriage of his youngest brother. As their father had passed away, he, as the older brother, became the guardian of the younger ones. The marriage was held [in] May 2015. He claims that on [date] May 2015 he received a letter and threatening phone calls. The letter he received was a demand for [Amount] rupees. He claims that he was told that he had previously been warned and had a fatwa issued for his murder and now he would not be spared. He claimed that he could not attend the wedding reception or any other activity and that he remained within the house. He claims that on [date] May 2015 he saw one person loitering outside while he was in a room on the second floor of the house where he was staying. Based upon that sighting, he claims that he made a report to the Inspector General of Police in Islamabad on [date] May 2015 but was told that there are 220 million people in Pakistan, and they can’t provide protection to them all.
On [date] May 2015 he claims that he saw two people late at night at around 10pm, one of them with a pistol in his hand. He claims that he told his brother and as soon as his brother went out to see, the men disappeared.
The applicant claims that on [date] May 2015 he reported the incident to the police station and lodged a first incident report. The applicant claims that he changed his flight so as to leave Pakistan earlier due to these issues. He left Pakistan [in] June 2015 for Australia.
I asked the applicant to describe the work he undertook while with [Organisation]. He said that he was a social mobiliser involved in polio work. He claimed that since Pashto is his mother tongue, he was of value to [Organisation]. He claimed that his job was to motivate people and explain how dangerous polio is. He said that he would meet village elders and tell them how dangerous polio was. He claimed that it was for that reason that he took a risk and was compensated for it with a good salary.
I asked the applicant whether he could explain the immunisation schedule for young children. The applicant responded by saying that a female worker would work with him along with a third helper. He did not provide the schedule, so I asked again whether he provided information on how often children needed to receive the vaccine. He responded that the polio package was for every year, he added that they would dispense three drops for one child. I asked again how often they would need to have the vaccine. He said that they had two teams. One team would go after six months and the other after one year. His main task was to motivate people. I asked whether he explained during his outreach at what age children would be vaccinated. He said that it was kids from six months to five years of age. Sometimes he said that even the older ones would take the drops. I asked if the children were vaccinated once, to which he responded that these children were vaccinated each year. I then showed him a copy of the Pakistan Health Education schedule.[1] The document contains a routine immunisation schedule. It included the term OPV. I asked him whether he knew what OPV is. He responded that he did not know. I put to him that it was the polio immunisation (oral poliovirus vaccines). I showed him that it was a four-stage immunisation program that has to be given before a child is 14 weeks old. I asked him why he didn’t know that. He said that his role was to motivate people and not to dispense the drops. I put to him that for him to do his job, he would need to know what they would have to do. He said that his role was to motivate them that and to explain that there was no risk that it was harmful. He said that the female worker would go inside the house and talk to the mothers about the details. I put to him that I found it hard to believe that he could motivate people to participate in the polio program if he didn’t even know when a child should participate in the program or how often. He responded that there were two teams, and his role was to motivate people.
Threats
[1] >
The applicant claims that he received three threatening letters dated [May] 2008, [June] 2008 and [May] 2015. The first letter was received by his brother at the [Location 1] address, and the second and third letters were received through the post to his Islamabad address.
I noted to the applicant that the first one dated [May] 2008 requested that he appear for questioning before [Date] April 2008. I noted that it is strange that someone who was requesting him to come would do so by sending a letter after the date of the deadline. He responded that he couldn’t explain it. I asked him if he had noticed this before. He said that he hadn’t. I said that I didn’t understand how he could not have thought it strange, but he did not have a further answer.
The applicant claims that after he resigned from [Organisation], he tried to not contact his brothers. He said that they received threats over the phone. He said that his brothers were being threatened to reveal his location. He said that he didn’t disclose this at an earlier opportunity to the Department or Tribunal because he didn’t want to get his brothers in trouble. He said that his brothers didn’t disclose anything, and nothing happened to the brothers.
The applicant claimed that he returned to Pakistan four times as his daughter was missing him. I put to him that across those four return trips he had spent nearly a year in Pakistan. He said that he would rent a place in Rawalpindi in his brother’s name and would change his house every year. He would not go out of his house whenever he would visit Pakistan. That is why, he claimed, nobody could find him.
In March 2015 he stayed in Pakistan for nearly two months. He claims that he travelled back for his brother’s wedding. He claims that at that stage the Taliban tried to extort him, but he refused to pay and as a result he received the third threat letter five days before the wedding. For this reason, he did not attend the wedding. I asked him why the Taliban would care about him as opposed to his family if they wanted to extort money. He responded that the family doesn’t have the amount of money being asked. Because he was in Australia there is a perception that he is wealthy and that he had worked for an NGO.
The applicant claimed that during this stay in March 2015, while in Islamabad, he saw a suspicious man with a weapon in his street and again a few days later. He claims that he tried to report it to the police but to no avail. I put to him that if someone wanted to kill him, why wouldn’t they be able to just enter the house. He responded saying that maybe they were not so committed or were waiting for him to emerge from the house. I asked him how committed they could be if they knew where he was, had a gun but did nothing. The applicant responded that in Pakistan every person may have two licensed pistols. I asked the applicant that if they knew where he was, couldn’t they have brought more Taliban. He said that he didn’t know what they were thinking and did not come out of the house. He said that he only left his house to make an application to the Inspector General of Police and to go to the police station.
I put to the applicant country information from DFAT:
5.74 Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.
The applicant acknowledged this and added that he doesn’t know about others but can only tell his story.
I put to him that his representative has claimed that he chose to study at [a] University where he could study online so as to maintain a low profile. He confirmed this. I shared with him on the screen his education certificate, which included information that his course began in ‘Spring’ 2008. I asked him when spring in Pakistan is. He said it was from March onwards. I noted that he had started at [the] University before he was threatened and as such it couldn’t have been a reason for deciding to study online. He acknowledged this. He then said that he was interested in higher education and that is why he came to Australia. He added that no other university provides an online education facility.
The applicant claimed that he had attempted to register a first instance report (FIR) dated 29 May 2015, a copy of which was provided to the Department and available to the Tribunal, but the police refused to investigate it. I asked him that if that was the case, why would the newspaper article he submitted to the Department dated [June] 2015 state that the police began an [investigation]. He said it was because the police didn’t want to disclose their weaknesses.
I noted to the applicant that in his letter to the Inspector General requesting protection, he wrote that he was working for an NGO for five years. I asked him to explain how he could make such a mistake if the actual term was less than two years. He said that he was under a lot of stress at the time. I put to him that it was hard to understand how he could confuse two years and five years.
I note in the applicant’s FIR he claims that he was asked by way of letter and phone if he was ‘working with Jews’ in Australia. At the hearing, he explained that he received threats by phone from private numbers. I asked why he hadn’t told me that before. He said that he was answering the questions I had asked. I put to him that I had asked open ended questions throughout the hearing. He said that it is mentioned in the FIR and he thought I had read it. He said that he received three to four calls in late May threatening to kill him because he was in a country related to Christians and Jews.
The applicant claimed that his best friend, who was a ‘famous [entertainer]’, was murdered in 2010.
Section 438 certificate

On the Departmental file there was a s.438 certificate, which was shared with the representative on screen during the hearing. I found the certificate to be valid. A copy of the certificate was provided to the applicant’s representative following the hearing.
Although finding the certificate to be valid, I provided a summary of the evidence behind the certificate. I noted that it was a dob-in letter and that it claimed that the applicant had provided false documents and that the person who managed the NGO, [Organisation], was also a student visa holder in Australia. As it was adverse information, I provided it under s.424AA. I explained that the information was relevant as it goes to the credibility of his claims. I provided the applicant time to adjourn and consider his response. The applicant chose to take a short break and meet with his representative. Following his return to the hearing, the applicant gave a response stating that the information he had given was correct and that the person who had provided the information may have had personal issues with him.
Finding of fact
The applicant has claimed that he has been targeted by the Taliban because of his work for an NGO raising awareness of polio. He claims that he has received three threatening letters, seen people loitering in front of his window and received threatening calls. The evidence provided by the applicant was not convincing.
Despite claiming to have worked for nearly two years raising awareness of the dangers of polio, the applicant was unable to describe the Pakistani government’s polio vaccination routine. His response, that he was not involved in dispensing the vaccine, is not convincing. If he is raising awareness, then he would need to know the relevant age group, which is children up to 14 weeks old at the very least. Instead, he had suggested that it was taken by children up to five years. This is a substantial difference that I do not accept would have arisen had he actually been involved for two years in raising awareness of the need for polio vaccinations.
The documentation that was provided also had serious contradictions which undermined the credibility of the claims. That the applicant simply made a mistake in his letter calling for police protection when he wrote that he had worked for five years for an NGO instead of two is vexing. The Taliban’s demand that he was to appear before them to answer questions by a date which was after the date of the letter is of concern. His response that it was an inadvertent mistake of uneducated Taliban is plausible but concerning when considered collectively. He failed to mention, until asked, the threatening phone calls which were described in the FIR document, which included threats arising from his purported collaboration with Jews in a foreign country. His reason for not raising this, that he was only answering the questions I was asking and that anyway it was a part of the material he had submitted, was not convincing, as I began by asking open ended questions about the harm he feared. I also note that the applicant’s claim to have retreated into isolation including studying online because of the threats did not align with the evidence that he had started his online education before the claimed threats began. In addition, the applicant’s explanation for not mentioning earlier that his brothers had received calls from those seeking to find him is difficult to believe.
I noted country information which spoke of fraudulent documents being common. On its own, that fraudulent documents are ‘common’ in Pakistan does not mean that all documents are fraudulent. It cannot be used as the sole reason to dismiss the validity of documentary evidence, as the delegate had done, but when there are so many doubts arising from the documents, I give some weight to country information which states that fraudulent documents are common.
The dob-in letter that was received, as noted to the applicant, was not anonymous. It provided background to how the information was known to the person. It was detailed. Considering the numerous issues arising from the applicant’s evidence, and the doubts I hold over the veracity of the documents, I give some weight to the dob-in letter.
Considering the doubts over the manner in which the applicant obtained the reference letter from [Organisation] as described in the dob-in letter, which I have given some weight to, namely, that he knew the director of the NGO who was studying in Australia at the time who had provided the letter, but the information contained in the letter was not correct, I have chosen not to attempt to contact the organisation.
I find that these doubts over the veracity of his evidence outweigh the testimony he provided at the hearing, including that he had to move house for each of the four times that he returned to Pakistan, that he changed his flights for the reason of the threats, that he saw a threatening man outside of the home and that he went to the Inspector General to seek police protection, among other claims listed above.
I have considered to what extent the applicant appearing by video could have influenced any finding of fact by the Tribunal. The genesis of concern arises only in part from the evidence that the applicant provided at the hearing. It also arises from problems with the documents and the dob-in letter. I accept that the applicant was experiencing some stress because of the situation his family faces in Pakistan; this is not unexpected and as such I give it some weight. I do not accept that his claimed lack of knowledge of the interview process, it being a long process, appearing by video or working through an interpreter would have impeded him from providing simple information about the polio routine or honest answers about inconsistencies in the documentation to the best of his ability.
Overall, I do not accept that the applicant worked for an NGO whether as a polio outreach worker or in any other capacity, I do not accept that the applicant received any threats from the Taliban, and I do not accept that any individual or organisation has had any interest in the applicant.
I accept that the applicant was originally from [Location 1], the same village as [Mr A] and [Mr B], and that when they each established their own group within the Taliban movement, they expected local villagers to either support them or to provide financial assistance. I accept that his family house had been demolished in 2008 in part as a show of the damage they can inflict. I accept that his best friend was murdered in 2010 but I do not find that it is related to the applicant, nor that it can be indicative of the situation the applicant will face 10 years subsequent to his friend’s death were he to return to Pakistan.
I also accept that the applicant moved to Islamabad in 1989 and that it is the city that he would choose to return to free from fear.
Considerations
The applicant claims to fear harm arising from the Taliban because he had not supported them, despite being from the same village as [Mr A]. The applicant left his village and moved to Islamabad in 1989. As discussed with the applicant, [Mr A] died in 2007. The applicant is claiming that the supporters of [Mr A] are intent on harming him despite [Mr A] having died.
The applicant fears harm for not having expressed support for the group by supporting them financially.
I had put to the applicant that the Taliban were pushed out of South Waziristan and that they would have many other concerns than a resident of [Location 1] who had left the village in 1989, namely the applicant, not having shown support for them over a decade ago. He responded that eight days earlier a captain was killed by the Taliban in Waziristan and a leader of the Pashtun Tahafuz Movement (PTM) was murdered. He believes that the situation tells its own story. He had also claimed that a Superintendent of police who was against the Taliban and was wanted by them since 2003 was abducted [in] October 2018 in Fatima Jinnah Park, tortured for one month and then killed.
I put to the applicant that the situation of the Superintendent was different as he was fighting the Taliban for two decades. That an army captain is killed only days before the hearing, I find, lends little weight to the applicant’s situation. He is not in the military and he has not been in the military. The military is actively fighting the Taliban, he is not. As for the PTM, I put to him country information indicating that the PTM is being targeted by the army and not the Taliban.[2]
[2] Why is Pakistan’s Pashtun movement under attack? Al Jazeera, 28 January 2020, >
I read to the applicant information from DFAT that ‘Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations’.[3] The applicant responded that by reading newspapers you can see the actual situation on the ground. The DFAT assessment suggests that the Taliban have a limited capacity in former safe havens which would include [South Waziristan Agency]. As the applicant has lived in Islamabad and Rawalpindi for twenty years, I take this into consideration in so far as the ability of the Taliban and other Islamic insurgent groups to reach into Islamabad to harm the applicant. Considering that the applicant has not experienced any harm for the over 20 years that he lived in Islamabad, before coming to Australia, and nor has his family, adds further evidence that the Taliban do not have the reach or interest to harm him.
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report: Pakistan, 20 February 2019 at [2.81]
Submissions were made to the contrary. Country information was provided, including that suspected militants and an army soldier were killed in a clash in North Waziristan in April 2020, as well as information concerning another incident involving soldiers in North Waziristan arising from a clash with militants on the Afghan-Pakistan border in 2019, an attack upon the military in North Waziristan in June 2020, and another clash between soldiers and militants in North Waziristan in July 2020. The applicant also provided country information about a targeted killing of three civilians in North Waziristan. I accept this country information but give it limited weight for the reason that the applicant is claiming harm arising from his relation to South Waziristan Agency. All of the incidents provided were in a different area. Furthermore, given that the applicant does not live in North Waziristan, but rather Islamabad, adds further to the limited value of using the security situation in other areas. Nevertheless, it does show the continuing presence of terrorism in the border regions. Overall, I place moderate weight on the situation in North Waziristan.
Overall, considering the applicant’s specific circumstances, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the Taliban whether as a consequence of his unwillingness to support [Mr A] and other leaders, having come from [Location 1], having spent time in the west, having had his family home demolished at the time or for reasons of general security.
As I have found that the applicant has not worked as a polio outreach worker or for an NGO, it follows that the applicant does not face a real chance of serious harm or a real risk of significant harm from the Taliban or other extremists for those reasons.
The applicant claims that he would face harm arising from the time he has spent abroad in the West more generally. I read to him country information from the DFAT report:
5.44 Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration attempt tend to face a higher risk of financial hardship and familial shame.
He said that many people who are returning from Australia are jobless.
I read the following information:
5.45 DFAT assesses that returnees to Pakistan 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.
He said that to know the situation, the Tribunal should contact the people who live there. He added that the information presented does not reflect the real picture. I put to him that the report was produced by the Australian Embassy in Pakistan and they would have access to people who live there. He responded rhetorically by asking whether the Australian ambassador can visit Islamabad without security.
Based upon the independent information available to the Tribunal and taking into consideration the applicant’s response, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from being a returnee from a Western country.
The applicant fears harm arising for reasons of his ethnicity. The applicant claims that other leaders of the Taliban, besides [Mr A], were also from the same tribe, which can be identified by the applicant’s officially registered details and his customs. The applicant provided country information about Pashtuns moving within Pakistan, which noted that there are reports of harassment by security officers particularly for those moving to Karachi and Lahore. The applicant provided country information regarding significant human rights abuses by security forces. I put to the applicant that he had not claimed that he had experienced any harm while living in Islamabad. I note that the issue is not whether the applicant can move to Islamabad but whether he would face serious or significant harm arising from a resumption of his life in Islamabad. The applicant confirmed that between 1989 and 2002 he had not faced any discrimination but said that after the Taliban came to Pakistan, law enforcement agents would stop and harass Pashtuns (the Taliban being comprised mainly of Pashtuns). He said that they would be, for example, slapped while visiting the market. He did not claim that any such incident happened to him. This aligns with country information, which states that Pashtuns face a medium risk of racial profiling by security forces.[4] I accept that there is some discrimination experienced by Pashtuns in Islamabad, but I place considerable weight on the applicant’s own experiences due to the length of time he has lived there. He is not a Pashtun who has just emerged from the border areas but rather has had 20 years of integration into Islamabad/Rawalpindi life, including support structures and knowledge of the norms which would minimise the risk he faces of being profiled. I also do not accept that being stopped by security forces or slapped amounts to serious or significant harm. As such, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from any discrimination that may occur due to his ethnicity.
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report: Pakistan, 20 February 2019 at [3.12]
I have also considered the applicant’s circumstances cumulatively, including that he is Pashtun, from a village that spawned Taliban leaders and that he and his family would be known to some of the past and present leaders of the Taliban but would live in Islamabad where Pashtuns are not the majority population. Even when considered cumulatively, I find that the circumstances the applicant faces do not amount to a real chance of serious harm or a real risk of significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Senior Member

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

[2020] AATA 3297

10 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction