1720725 (Refugee)
[2022] AATA 3640
•22 July 2022
1720725 (Refugee) [2022] AATA 3640 (22 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mark Edward Northam (MARN: 1175508)
CASE NUMBER: 1720725
COUNTRY OF REFERENCE: Pakistan
MEMBER:Dr Colin Huntly
DATE:22 July 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Statement made on 22 July 2022 at 2:08pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Polio/NGO immunisation worker – actual or imputed general western sympathies – apostate – fear of the Tehreek-e-Taliban, Pakistan (TTP) – credibility concern – independent domain record check – Direction No.84 – witness statements – complementary protection – generalised violence – particular vulnerabilities – chronic malaria – mental health challenges – propensity to engage in self-harm – access to the necessary support required to sustain life – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225 at 233
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Chan v MIEA (1989) 169 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v MI [2020] FCCA 2141
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
MIMA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
Application for Review
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 3 November 2014 and the delegate refused to grant the visa on 31 August 2017.
Procedural Issues
The applicant was invited to attend a Tribunal hearing on 30 November 2021 to give evidence and present arguments. On the day of the hearing, the applicant sought urgent medical treatment in connection with his longstanding mental health condition.[1] At the hearing, I discussed my concerns with the Applicant’s Representative about the suitability of proceeding to a hearing in person with the Applicant, given his history of medical emergencies on previous hearing dates. The Representative undertook to raise this matter with the Applicant and the hearing was adjourned.
[1]Email from Representative, 29 November 2021; Discharge Summary provided 29 November 2021.
On 25 January 2022, a resumed hearing was held without the Applicant in order to ascertain the views of both the Applicant and the Representative about how best to proceed with the review without precipitating a further medical emergency. The Applicant’s Representative communicated that both the Applicant and the Representative agreed that the review might proceed on the papers, once the Applicant had been invited to respond to my specific questions in writing.
On 24 February 2022 the Tribunal wrote to the Applicant to explain my particular concerns about his application for protection in Australia, giving him an opportunity to respond to those concerns and to present relevant evidence.
On 24 March 2022 the Tribunal received the Applicant’s written response to my written questions. The available submissions before the Tribunal on which I have made the following findings and decision also include a submission with attachments provided by the Applicant’s Representative dated 24 November 2021. While the Applicant nominated three fact witnesses resident in Pakistan from whom he suggested that I might take oral evidence, no written witness statements were provided to which I might refer while proceeding to determine the application on the papers.
The Applicant was represented in relation to the review. The Representative attended the Tribunal hearings.
What is the Background of this Application?
Introduction
The Applicant originates from the town of [Town 1], in Khyber District on the outskirts of [City 1] in Khyber Pakhtunkhwa province, Pakistan.
The Applicant seeks protection in Australia under s 36(2)(a) of the Act, and claims to hold a well‑founded fear of persecution in Pakistan by persons associated with the Tehreek-e-Taliban, Pakistan (TTP) now and for the foreseeable future for the essential and significant reason of his personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate.
He also seeks complementary protection in Australia under s 36(2)(aa) of the Act for the essential and significant reason of generalised politically motivated violence in the Khyber Pakhtunkhwa; and on the grounds that his mental and physical health conditions preclude him from being returned to Pakistan now or in the reasonably foreseeable future.
Delegate’s decision
In a written decision dated 31 August 2017, a delegate of the Minister refused to grant the Applicant a protection visa as follows:[2]
As discussed earlier, I am of the opinion that the applicant’s occupation as field officer at [named] hospital, whilst a contributing factor to his risk profile, is not enough in and of itself to place the applicant at a ‘real chance’ of being subject to serious harm. Additionally, I note that the applicant ceased his employment as field officer after only working there for eight months.
Given the circumstances of the applicant and the available country information, I find that it would be reasonable for the applicant to consider relocation to a city such as Islamabad where I find he would face a remote, rather than a real, chance of persecution. I am satisfied the applicant can safely access a relocation option within Pakistan.
Finding on well-foundedness
I am not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason. I am therefore not satisfied the applicant’s fear is well founded.
[2]Delegate decision record, 31 August 2017, at (17).
In forming this view, the delegate expressed mixed findings with respect to the credibility of the Applicant’s core claims for protection as follows:[3]
Based on the level of detail provided by the applicant at interview, in conjunction with supporting documents attesting to his former employment at [named] hospital administering polio vaccinations, I accept that he worked as a field officer in administering polio vaccinations to the local community in [Town 1] as claimed. I also accept that the applicant may have received threatening letters from militant groups telling him to cease this work.
However, I do not accept the claim as put forward by the applicant that the Taliban consequently fired shots at his house days after receiving his last threatening letter. I also do not accept the applicant’s claims that he continued to receive threatening calls on his mobile from unknown persons after he ceased his work as a field officer administering polio vaccinations.
The applicant’s responses regarding this aspect of his claims during the PV interview were vague and somewhat evasive. The applicant made several vague references to being constantly receiving calls from unknown people on his mobile phone and threatening him two weeks after leaving his house following the alleged incident that took place at his home. Additionally, when the applicant was asked how he knew the Taliban was responsible for firing shots at his house the applicant responded, “I don’t know”. I acknowledge that the applicant has provided copies of photographs as evidence of bullets being fired at this house gate. However, I have concerns about the genuineness of the evidence the applicant has provided to show that shots were fired at this house gate, particularly as I have no way of verifying the authenticity of the documents nor does it prove that these pictures are from his gate or that they are bullet holes. In light of the applicant’s response and reliable country information attesting to the availability to fraudulent documents in Pakistan, I am not giving this document any weight. I am of the opinion that the applicant has embellished or fabricated this aspect of his claims in order to enhance his claims for protection.
In relation to the applicant’s work administering polio vaccinations, I note that the applicant was not harmed whilst he worked at this job. I also note that the applicant has stated he ceased this work after eight months.
[3]Delegate decision record, 31 August 2017, at (10).
Tribunal’s decision in summary
After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be remitted for reconsideration by reference to s 36(2)(aa) of the Act (the complementary protection criterion).
I have found that the Applicant does not have a well-founded fear of harm from agents of harm associated with the TTP if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate.
I have also considered the Applicant’s claims to face a real risk of significant harm on return to Pakistan now, or in the reasonably foreseeable future, for the essential and significant reason of his physical or mental health conditions; and his implied claims relating to generalised violence in the Khyber Pakhtunkhwa or Pakistan more broadly. I find that the Applicant does not hold a well-founded fear of harm on return to Pakistan for these essential and significant reasons.
Having found that the Applicant does not engage Australia’s protection obligations under the refugee criterion, I find that the Applicant’s particular vulnerabilities mean that it is likely that, on return to Pakistan, he will fall victim to acts or omissions by parties, including agents of the Pakistan state, amounting to significant harm to the applicant within the contemplation of s 36(2A) of the Act. On this basis, I find that the Applicant engages Australia’s protection obligations under the alternative criterion at s 36(2)(aa) of the Act.
decision-making framework
The criteria for a protection visa are set out in s 36 of the Act and Sch 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.
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.
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’).
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
Relevantly, I note that DFAT Country Information Report: Pakistan (25 January 2022) addresses the general security situation at [2.34]–[2.35] in the following terms:
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.
A fear of being persecuted is well-founded if there is a ‘real chance’ of a given applicant being persecuted.[4] In Chan v MIEA, Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[5]
[4]Chan v MIEA (1989) 169 CLR 379 at 389, 406–407, 396–8, 428–9. Gaudron J did not adopt the ‘real chance’ test.
[5]Chan v MIEA (1989) 169 CLR 379 at 389.
The High Court has also emphasised that although the expression ‘real chance’ clarifies the term ‘well‑founded’, it should not be used as a substitute. Accordingly, I am mindful of the Tribunal’s obligation to apply the language of the Convention.[6]
A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:[7]
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[6]MIMA v Guo (1997) 191 CLR 559 at 572–3. In NACB v MIMA [2002] FCAFC 140 Sackville J (Beaumont J agreeing), referring to Guo, found that ‘decision-makers will be on very dangerous ground indeed if they employ an expression not found in the Convention (‘so remote as to be fanciful’) and assume that the negative (‘not so remote as to be fanciful’) is equivalent to the expression that is found in the Convention (‘well-founded’)’: at [58]. In SZRCI v MIAC (2012) 214 FCR 584 the Federal Court reiterated that use of language other than that in the Convention, such as ‘real chance’ will not necessarily give rise to error, and that the ultimate question is whether the phrase ‘well-founded fear of being persecuted’ was correctly applied: at [47].
[7]Chan v MIEA (1989) 169 CLR 379 at 389.
In the same case, Dawson J stated:[8]
... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.
[8]Chan v MIEA (1989) 169 CLR 379 at 397–398.
And Toohey J stated:[9]
A ‘real chance’ ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.
[9]Chan v MIEA (1989) 169 CLR 379 at 407.
Similarly, according to McHugh J:[10]
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.
[10]Chan v MIEA (1989) 169 CLR 379 at 429. However, this does not mean that the Tribunal must consider whether a 10 per cent chance of persecution has been established. In Altintas v MIEA (Federal Court of Australia, Nicholson J, 23 January 1997) the Court held at 10: ‘The ratio decidendi of Chan did not require the Tribunal to consider whether a 10 per cent chance of persecution was established. Rather the Tribunal was required to consider whether, on all the evidence before it, a “real chance” was established’.
Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11]
[11]MIEA v Guo (1997) 191 CLR 559 at 572. It is important, however, that this should not be viewed as an alternative test that there must be a risk of persecution shown on the probabilities, as that would involve an incorrect and more onerous test: see PW87/2001 v MIMA [2001] FCA 1083 at [7].
It is against the background of this judicial guidance that a decision-maker must reach the appropriate level of satisfaction for the purposes of s 36(2)(a) of the Act.
The issue in this case is whether or not the Applicant engages Australia’s protection obligations under s 36(2)(a) of the Act and Article 1A(2) of the Convention (the refugee criterion).
President’s Direction
I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 2 March 2021 (COVID-19 MRD Practice Direction). I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:
·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[12] and
·that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[13]
[12]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
[13]At [8.1].
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of applicant credibility. In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[14] In these and other decisions, the courts have made it clear 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.
[14]E.g. Minister for Immigration and Ethnic 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, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (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.
As noted by Nichols J in the recent Federal Circuit Court decision in DAJ19 v MI:[15]
[15][2020] FCCA 2141 (5 August 2020), at [69]–[71].
69.There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (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], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).
70.The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):
“30. The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision‑maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
35. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision‑making processes from scrutiny …
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”
71.… the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]‑[28]):
“41. For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision‑maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision‑maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”
In Guo Wei Rong and Pan Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[16] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[17] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[16](1996) 40 ALD 445.
[17]At 482.
I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[18] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[19]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision‑maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.
[18](1996) 185 CLR 259.
[19]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant, nor are decision‑makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:
where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[20]
[20][1997] FCA 1198 at (11).
Nevertheless, as Burchett J counselled,[21] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[21]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[22]
[22]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Noting also that there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies,[23] nor is there a rule that a decision‑maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[24]
[23]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.
[24]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[25] This is sometimes referred to as the ‘what if I am wrong’ consideration. I am also mindful of the observations of Gummow and Hayne JJ in Abebe v Commonwealth:[26]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[25]MIMA v Rajalingam (1999) 93 FCR 220.
[26](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If a decision-maker finds on the evidence that the applicant does not genuinely hold a 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 claim are satisfied. In this respect, in Iyer [27] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned) supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.
[27]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[28] I recognise that such a principle cannot be relied upon as an iron rule. However, it is potentially a useful illustration of the kind of weighing process that an objective decision‑maker must make when making findings relevant to the existence of a well‑founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
[28]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
In this respect, I note the comments of Flick J,[29] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision‑making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[29]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[30]
… Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
[30]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, I note that, later in the same judgment,[31] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9th Circuit Court of Appeals decision in Stoyanov v INS:[32]
The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’:
[31]CQG15 v MIBP [2016] FCAFC 146 at [43].
[32](9th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.
I note also that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[33]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[33]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[34]
[34]At [8].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[35]
[35]At [17]–[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[36]
New claims and evidence
[36]At [27]–[28].
I note the well-settled proposition that it is for an applicant to make their own case and the expectation that an applicant for protection will present all claims and evidence to the primary decision‑maker unless they have a reasonable explanation for not doing so.[37]
[37]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
I also note the ongoing requirement under s 104 of the Act for an applicant to ensure that their relevant details are correct and that they should correct any incorrect information at the first reasonable opportunity.
Accordingly, it may be open to a Tribunal to draw an inference unfavourable to the credibility of a claim or evidence where the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented at the first reasonable opportunity.
In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[38]
COVID-19-related claims
[38]At [9].
It is acknowledged that the international public health crisis arising from the current COVID‑19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.
Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Pakistan generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.[39]
CONSIDERATION OF Claims and evidence
[39]SZTAL v Minister for Immigration [2016] FCAFC 69.
Invitation to comment
Invitation of 24 February 2022
As indicated above, after reviewing the material on file, on 24 February 2022 the Tribunal wrote to the Applicant as previously advised and invited him to comment in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
As discussed with your representative, given our concerns about your past difficulties in attending hearings relating to your application for review, we have determined that it is more appropriate in all the circumstances to proceed on your application without a hearing. For this reason, we are writing to you at this time to explain our particular concerns and to give you an opportunity to respond to those concerns and to present relevant evidence.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
Polio vaccination program
1. You submitted letters to the department dated 25 July 2014, 8 September 2014 and 10 September 2014 claiming that that you were a contracted polio worker for [Hospital 1] [between] April 2013 [to] January 2014.
2. The letters feature a website in the footer. The website is:
[URL 1]
3. Information obtained by the Tribunal indicates that this website domain was registered on 23 October 2014, which appears to be up to three months after your supporting letters were issued. (See attachment A)
4. Further, the website and associated email addresses do not appear to ever have been operational in any meaningful sense.
5. This information is relevant to the review because if the Tribunal were to find that your claimed experience certificates are not authentic in material respects, it may be open for the Tribunal to find that your personal Taliban related claims connected to your profile as a polio worker in [Town 1] Area of Kyber [sic] Agency lack credibility.
Taliban threat letters
6. It is noted that the most recent DFAT Country Information Report for Pakistan (25 January 2022) states as follows (at [5.52]):
7. Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.
8. Accordingly, while the Tribunal notes the Taliban threat letters that you have submitted in support of your application for protection, the Tribunal has no way of verifying the authenticity or otherwise of these documents. In light of the DFAT Report referred to above, the Tribunal may not be able to place any weight on the threat letters.
9. Further, noting that since your departure in 2014, your immediate and extended family have continued to reside in the same location in Pakistan and engaging with community life (including participation in the village peace committee) without seeking to relocate, the circumstances you have described in your application for protection do not appear to give rise to an objective wellfounded fear of harm for any particularised reason involving such community activity.
10. This information is relevant to the review because if the Tribunal were to find that your claimed Taliban threat letters are not authentic, it may be open to the Tribunal to find that your claims connected to the Taliban threat letters lack credibility.
Medical issues
11. Your longstanding diagnosis of chronic malaria illness and present mental health challenges are noted. While you have not specifically claimed to fear persecution on the ground of any physical or psychological ailment, it is inferred from the submissions received that you claim that your physical and psychological condition would give rise to a real chance of serious or a real risk of significant harm on return to Pakistan or that it would be unreasonable to expect you to relocate to another area of Pakistan, on return, due to your physical and psychological condition and the inadequacy of health services in Pakistan
12. Given the suggestion that on return to Pakistan your mental and physical health issues may give rise to a claim for protection, the medical reports on file are not sufficient to determine your current expert mental health diagnosis and likely aetiology with any certainty. It is acknowledged that you do suffer from physical and mental health issues. However, the degree to which those disorders may have been caused by your life experience in Pakistan, or by other factors is not clear from the available material. Further, there is little relevant evidence about the likely effect of return on your physical or mental health.
13. Having stated this, it is plausible, that you may continue to suffer physical and or mental health issues on return to Pakistan and that these issues may require physical and or mental health treatment and support in Pakistan.
14. It may be open to the Tribunal to conclude that appropriate services are available in Pakistan to meet the health care needs of ordinary citizens on an equal basis in Pakistan and that you would also be in a position to seek such services. In any event, the inadequacy of mental health care services in a receiving country is not an intentional act or omission for the purposes of complementary protection provisions.
15. The descriptions of the types of significant harm in s36(2A) of the Act are passively worded, referring to a non-citizen being arbitrarily deprived of his or her life, the death penalty being carried out on the non-citizen, and harm that the non-citizen will be subjected to. The Federal Court has confirmed that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[40] It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[41]
16. Accordingly, it is not presently clear how the medical issues referred to in your application for protection would engage Australia’s protection obligations for the purposes of this review.
This information is relevant to the review because if the Tribunal were to find that your physical and psychological harm related claims do not engage Australia’s protection obligations, it may be open to the Tribunal to find that those claims are not relevant to the decision under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 24 March 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
[40]The language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person: GLD18 v MHA [2020] FCAFC 2 at [37].
[41]CHB16 v MIBP [2019] FCA 1089 at [65]–[68] (special leave to appeal from this judgment was refused: CHB16 v MIBP [2019] HCASL 377); and CSV15 v MIBP [2018] FCA 699 at [34]. The majority in GLD18 v MHA [2020] FCAFC 2 at [89] confirmed that there was nothing erroneous in the Courts’ statements in CHB16 and CSV15 that self-inflicted harm does not constitute ‘significant harm’, and at [90] noted that it is the intentional infliction of mental harm by others (which may cause a person to engage in self-harm) that is critical to the satisfaction of s 36(2)(aa). However, Snaden J in obiter at [103] saw ‘no obvious reason’ why self-harm might not qualify as a risk of the kind to which s 36(2)(aa) is directed and ‘would be slow to conclude that ‘significant harm’ extends no further, conceptually, than to harm that a visa applicant might endure at the hands of others’. See also SZDCD v MIBP [2019] FCA 326 where the Court held that deprivation of an appellant’s access to medical treatment in Australia as a consequence of his removal to Bangladesh would not amount to him being arbitrarily deprived of his life under s 36(2A)(a): at [48]; and EZC18 v MHA [2019] FCA 2143 where the Court upheld the Tribunal’s finding that suicide could not constitute the ‘arbitrary deprivation of life’ in s 36(2A)(a): at [47].
‘Attachment A’ referred to in the invitation letter contained an independent domain record check result for [URL 1] confirming the creation date of the domain name on 23 October 2014 and disclosing the DNS Nameserver details for the Domain Name. There is no apparent functional significance to the difference in capitalisation in the domain name references.
The Applicant responded to the invitation to respond by email, which was received on 24 March 2022. The Tribunal’s specific concerns and the Applicant’s responses to those concerns are considered in detail below.
Polio immunisation worker
The invitation letter to the Applicant explained my concerns that the website domain included in the footer of all three letters was not registered until 23 October 2014. This date was after the Applicant’s supporting letters were issued (the last of these having been issued on 10 September 2014). The invitation letter also explained my concern that the website linked to the web domain address (and its associated email addresses) provided on each of the support letters do not appear to ever have been operational in any meaningful sense (as at the date of the invitation to comment). The invitation letter further explained to the Applicant that, given these specific concerns, it may be open for the Tribunal to find that the Applicant’s personal TTP-related claims connected to his claimed profile as a polio immunisation worker in [Town 1] Area of Khyber Agency lack credibility.
In his written response to these credibility concerns, the Applicant stated as follows:
Data about the hospital, its IT operations, how and when it made any registration(s) of domain names and related information is known only by the hospital. The hospital website appears to be functional at the current time, including COVID-19 updates and other contemporary information of interest to those attending the hospital.
There are any number of explanations for why the current domain registration date(s) may not align with date of the letters including the name having been previously registered with a different domain name registrar, the domain name being printed on letter in anticipation of a website build/launch that was delayed, or other reasons.
For further evidence that [Hospital 1] in [Town 1] was the target of those opposed to the polio vaccination program, see the attached newspaper article from [Publication 1] from 5 March 2013, over a year before my letters from this hospital. Clearly the hospital was a target of those opposed to the polio eradication program.
Having examined the content of the website linked to the web domain address, and having accessed the related contact email address, I do not concur with the Applicant’s assessment of the operational functionality of the web address in question.
As at the date of this decision, the website referred to in the Applicant’s reference letters lacks sufficient evidence of a genuine, public facing information source that would satisfy a reasonable person of either its authenticity or its connection to any genuine hospital in any geographic location. Further, the Applicant’s submissions do not address the specific concerns raised in the invitation letter.
Contrary to the Applicant’s submission that “Data about the hospital, its IT operations, how and when it made any registration(s) of domain names and related information is known only by the hospital”, the invitation letter referred the Applicant to public information which raised an inference that the support letters he has provided may not be authentic. The repeated provision in three separate support letters of domain address and email address information that apparently did not exist in any online format at the date provided on any of the letters suggest either that those letters were post-dated, or that the domain and email details were fabrications at the time of the issuing of the letters. Both alternative explanations arising from these facts suggest that none of the letters are authentic documents.
The Applicant’s submissions fail to engage meaningfully with the authenticity concerns put to the Applicant in the invitation letters regarding the domain name and email address listed in all three of his support letters dated 25 July 2014, 8 September 2014 and 10 September 2014. Given the concerns that have been put to the Applicant, together with the incidence of document fraud identified in the DFAT country information for Pakistan (also put to the Applicant),[42] I find that the support letters should be given little weight in the assessment of the Applicant’s claims to hold a well-founded fear of harm from the TTP for the essential and significant reason of his personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate.
[42]DFAT Country Information Report, Pakistan (25 January 2022) at [5.52].
Apart from this material, I note that the Departmental file contains a copy of an untranslated report to a Village Peace Committee (Tehsildars) dated 26 April 2013, together with a translation of the document.[43] This document bears the name of the Applicant and complains of harassment the Applicant experienced from unidentified agents of the TTP in connection with “the polio campaign run by the government of Pakistan”. Of the three translated TTP threat letters provided by the Applicant in connection with his application for protection,[44] this first threat letter is the least specific and most vague in terms of its allegations and threatened consequences. Unusually, however, this is the only TTP threat letter that appears to have resulted in any reports to local authorities by the Applicant.
[43]Departmental File, Folios10-12.
[44]Departmental File, Folios 5-7.
The Applicant’s failure to report the two later, more specific and more violent TTP threat letters to local authorities suggests that they were given little weight by the Applicant at the time in which they came into his possession or subsequently. The available evidence satisfies me that these threat letters should be given little weight in the assessment of the Applicant’s claims to hold a well-founded fear of harm from the TTP for the essential and significant reason of his personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate or for any other reason.
The Tribunal notes the submission of the Applicant’s Representative dated 23 November 2021 that the Applicant:
… was threatened and attached [sic] by Tahreek-e-Taliban (“Taliban”), including receiving 3 warning letters followed by an attack on his house with gunfire in November 2013, which was witnessed by several relatives including eyewitnesses who are ready to provide oral testimony to the Tribunal regarding the attack.
The Tribunal also notes that the Applicant’s hearing response documentation received 24 November 2021 stipulated an intention to call three telephone witnesses with knowledge of an apparent violent attack by unknown persons on the Applicant’s family home in November 2013.
In response to the invitation letter of 24 February 2022, the Applicant responded in the following terms:
It is unrealistic to expect to be able to verify threat letters from terrorist-like organisations that don’t include contact or writer information.
Similarly, it is grossly unfair to attack the credibility of documents generally from Pakistan simply because of a DFAT report that was published 8 years after the documents in question were given to me. That would mean that every document (other than ID documents) from Pakistan would be assumed to be fraudulent, unless able to be verified, which is hardly a reasonable standard.
I do not have the capability of producing these threat letters, and I affirm my claim that they are authentic as I know that many of my polio colleagues received the same letters from the Taliban.
The Applicant’s concerns are noted. However, the evidentiary task required of the Tribunal in protection matters requires that Direction No.84 must be applied. Whether or not the requirement to have regard to DFAT country information creates any form of rebuttable presumption, it is nevertheless a relevant consideration. In addition to the principled objection of the Applicant to the substance of the requirements of Direction No.84, I must consider the evidence, such as it is, including the Applicant’s own account of his conduct over the relevant period.
In this respect, I note that the Applicant claims to have also received a series of threatening telephone calls from agents of the TTP between the evening of the violent attack on his home in [Town 1] in November 2013 and the time of his departure from Pakistan to commence living in Australia by means of a student visa in July 2014. Over this period the Applicant lived with various friends and relations.[45] There is no corroborating evidence of the sort that one might expect to see in such circumstances, such as witness statements, first information reports to police or reports to village peace committees. There is also no suggestion that the Applicant took any steps to change his telephone number during this period. Given this lack of corroboration, I place little weight on these integers of the Applicant’s claims.
[45]Applicant unsigned statement, Departmental File Folios 19-20.
There is no reason to doubt that, since his departure from Pakistan in July 2014, the Applicant’s mother and her second husband, together with others of the Applicant’s immediate family have relocated from [Town 1] to the home of the Applicant’s brother-in-law in the city of [City 2], approximately [number] kilometres to the east of the town of [Town 1] in the same region within Khyber Pakhtunkhwa. Such a relocation within the same general region, in and of itself, does not necessarily connote anything beyond an inter-regional blended-familial relocation.
As the Applicant stated in his response to the invitation letter:
My family was getting harassed, especially my brother [Mr A] and they moved from my village after a few months. They were asking him about me. Another thing is that I was the main target of the Taliban, not my family. …
Whether my family, who did not do polio eradication work, is harassed or not is not an indicator of the danger I face as a former polio worker if I return. In Pakistan, the Taliban does not condemn a person’s family just because a person is an enemy of the Taliban. If the person is no longer living with his or her family, has moved away, etc, that removes the focus of the Taliban from their family.
Given that I have found above that little weight should be placed on both the Applicant’s support letters and the TTP threat letters submitted by the Applicant in the course of his application, there is no other material before the Tribunal to suggest a necessary link between the claimed attack on the Applicant’s family home in November 2013 and the conduct of the Applicant during his time in Pakistan prior to July 2014.
The President’s COVID-19 MRD Practice Direction dated 2 March 2021 provides as follows:
Witness statements
6.7 You must lodge with the AAT a signed and dated statement from:
(a) the applicant; and
(b) any person we have told you the Tribunal may contact to obtain oral evidence (a witness);
setting out the evidence the applicant and the witness will give at the hearing.
6.8 If you are unable to obtain a signed statement from a witness, you must lodge with the AAT an outline of the evidence the witness will give and how it is relevant to your case.
6.9 A witness statement or outline of evidence must be lodged with the AAT as early as possible before the hearing.
Further, the President’s Practice Direction on Migration and Refugee Matters, dated 1 August 2018, at Part 2 (Additional Directions for Representatives in Refugee Proceedings) provides:
12. Witness statements
12.1 Where it is proposed that a person other than the applicant give evidence at a hearing, a witness statement setting out the witness’s evidence is to be given to us at least seven days before the hearing. Where a witness is unable to adopt or sign a witness statement, you are to set out in writing particulars of the evidence you expect the witness to address and how it is relevant to the applicant’s case.
As at the date of this decision, no witness statements have been provided by or on behalf of the Applicant relating to the events that the Applicant asserts in his application for protection prior to his arrival in Australia on 5 July 2014.
I accept the applicant’s submissions that religious and political extremist thugs in his home region within Khyber Pakhtunkhwa have perpetrated both targeted and untargeted acts of brutal violence for the purposes of terrorising, extorting and subduing particular leaders and high-profile groups whom they perceive to be opposed to their religious and political dogma. I also accept that the Applicant may subjectively and genuinely hold concerns for his safety if returned to Pakistan now or in the reasonably foreseeable future because of this ongoing culture of violence and harassment. However, the task for a decision maker in cases such as the present review is to apply the statutory test.
Taken at their highest, the Applicant’s claims suggest that he may have had some interest, support for, or low-level involvement in the polio eradication program which was operating in Khyber Pakhtunkhwa prior to his arrival in Australia in July and that he may have perceived that this interest, support for, or low-level involvement in the polio eradication program was viewed unfavourably by agents of the TTP in his local area.
I have found above that the available corroborative evidence provided by the Applicant in support of his claims to hold a well-founded fear of harm from the TTP for the essential and significant reason of his personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate lacks probative weight.
To the extent that generalised violence within Khyber Pakhtunkhwa perpetrated by violent thugs including agents of the TTP has been (and continues to be) an ongoing blight to the ordinary citizens of the region, the Applicant’s apprehensions about returning and living in that region are entirely logical.[46] In this respect, I note that the Convention definition of ‘refugee’ does not encompass those fleeing generalised violence, internal turmoil or civil war.[47] In Appellant S395/2002 v MIMA, McHugh & Kirby JJ explained that the central question is always whether this individual applicant has a “well-founded fear of being persecuted”.[48]
[46]DHA (2022) Common Claims: Pakistan (4 July 2022) ‘Militant groups’ pp41-46.
[47]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [141].
[48]Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [58]. Similarly, MIMA v S152/2003 (2004) 222 CLR 1, per McHugh J at [82].
Based on the evidence discussed above, and considering the totality of the Applicant’s circumstances as I have found them to be, there is less than a real chance that the Applicant will experience serious harm on return to Pakistan for the essential and significant reason of his past or current personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate and, therefore, the fear of persecution expressed by the Applicant for this essential and significant reason is not objectively well-founded in the relevant sense.
Physical and Mental Health Issues
I accept that the Applicant has a documented history of physical and mental health challenges. Although there is little in the submissions beyond passing reference, one of the more serious challenges faced by the Applicant appears to be a recurrent form of chronic malaria disease. I note the following submissions from the Applicant’s Representative:[49]
After arrival in Australia, he suffered a relapse of malaria, a disease he has suffered from since 2001. Additionally, the applicant currently suffers from severe mental health issues stemming from the terror he experiences at the thought of having to return to Pakistan and the death threats that await him there. He is currently receiving mental health care, however the uncertainty of his visa situation and the looming possibility he may be forced to return to Pakistan serve as a constant threat to him in his mind, and have taken a terrible toll on his mental health and well-being.
[49]Submission 23 November 2021, at 3.
While the uncertainty surrounding the Applicant’s visa status is an understandable source of stress, it is noted that the decision before the Tribunal is not a decision for the return of the Applicant to Pakistan, although it is accepted that the present decision may give rise to a decision on return at a later date, before a different decision maker. The relevance of these submissions to the present decision remains unclear.
The Applicant’s Representative helpfully summarises the Applicant’s history of mental health challenges to 23 November 2021 as follows:[50]
[50]Submission 23 November 2021, at 6–9.
the applicant’s mental health conditions serve as a major impediment to his ability to relocate and find work, live and survive in Pakistan.
The applicant is in poor mental health and has suffered from multiple mental health conditions which have worsened since he arrived in Australia based on his continued and growing fear of retribution from the Taliban should he be forced to return to Pakistan.
We provide evidence of his continued severe mental health conditions in several documents including … a letter from [Dr B], consulting psychiatrist at [medical clinic], part of the WA Government Department of Health:
“[The applicant] has been diagnosed with Major Depression in the context of past trauma and adjusting to living in Australia without his family. [The applicant] has consistently communicated fears for the safety of his family in Pakistan… [The applicant] has also consistently communicated his history in Pakistan where he waws threatened by the Taliban directly as well as through his family.”
-- Letter of [Dr B] …
We include … a letter from [Ms C] dated 8 November 2021 who describes the applicant’s conditions and history of suicide attempts:
“[The applicant] has Post Traumatic Stress Disorder (PTSD) - he continues to exhibit the following symptoms with frequent exacerbations, despite medications and counselling; flashbacks, nightmares, severe anxiety and uncontrollable thoughts about the trauma, frequent negative changes in thinking and mood, severe emotional distress, hopelessness about his future, difficulty experiencing positive emotions, self harm and suicide attempts.
The following list consists of self harm and suicidal attempts which was managed by his GP, [named mental health service], [Hospital 2], [Hospital 3] and Association for Services to Torture and Trauma Survivors:
Attempted hanging October 2014
Wrists cut February 2018
Hanging attempt and wrists cut October 2018, hospitalised for 4 days
Wrists cut October 2018
Overdose on paracetamol August 2019 and hospitalised for four days
I was previously employed by The Department of Human Services, Centrelink, for a period of ten years as a Psychologist. During this time I assessed countless disingenuous clients and have formed the opinion that [the applicant] is not one of them. The fear he has about returning to Pakistan is very real, relocation will be detrimental to his mental health in the absence of appropriate services due to cultural stigmas. I believe [the applicant] will suicide in Australia if he is forced to leave the country, please have compassion when making your decision.”
-- Report of [Ms C] …
We would direct the Tribunal’s attention to [Ms C]’s 10-year established work experience with Centrelink and the assessment of the applicant as having a real fear, and a person who is being truthful and sincere in his statements.
As further evidence of the applicant’s severe mental health issues, we include … a letter from [Dr D], the applicant’s GP, who provides a detailed history of the applicant’s severe mental health conditions:
“2. [The applicant] has a past medical history of:
(i). Post Traumatic Stress Disorder (PTSD);
(ii). Mixed Anxiety and Depressive Disorder and;
(iii). Psychosis - possibly dating back since his arrival in Australia.
3. Exacerbation of his symptoms of suicidal thoughts, anxiety and unpleasant flash backs and frequent flare ups of these symptoms has always been his chronic fear of his family welfare and safety back home in Pakistan; and his persisting non- resolving hanging Immigration status following rejection few years ago on and off financial difficulty.
4. There has been a concerning flare up of his symptoms especially thought of suicides in last three (3) weeks on learning about a hearing date for his immigration case come 27/11/2021. He has had more frequent GP and psychologist visits since then and the [named] Mental Health team have been informed for a closer monitoring and follow ups.
5. He has had several episodes of spontaneously acting upon his suicidal thoughts in the past including;
(a). A hanging attempt in October 2014;
(b). Wrist cuts 13/02/2018;
(c). Deliberate Self Harm (DSH) with knife cut to his Wrist with hanging attempt 05/10/2018. He had hospital stay for four ( 4) days and managed between [Hospital 2] and the [named] Mental Health Services team;
(d). Wrist cuts 28/10/2018 and;
(e). Paracetamol Overdose on 31/08/2019- He had hospital stay for four (4) days and managed between [Hospital 2] and the [named] Mental Health Services team. Has also been managed at [Hospital 3].”
-- Report of [Dr D] …
As further evidence of the applicant’s severe mental health conditions and their impact on his life, we include … a report from ASeTTS, the Association for Services to Turture and Trauma Survivors:
“[The applicant] has been a client at the Association for Services to Torture and Trauma Survivors (ASeTTS) since December 2018.
Over the duration of his attendance [the applicant] has consistently presented with symptoms related to his trauma history and fear of death if returned to Pakistan. He presents with symptoms of PTSD, persistent extreme low mood, high levels of anxiety, intrusive negative thought patterns, unable to regulate his emotional state, sleep disturbances with nightmares, is socially isolated and holds little to no hope for a safe future. [The applicant] becomes tearful and triggered at the slightness thought of his past, the safety of his family and his uncertain immigration status.
[The applicant] has frequent suicidal ideation and has had multiple suicide attempts and multiple self harming episodes requiring admission to hospital since arriving in Australia in 2014.
Currently he is presenting with heightened suicidal ideation due to the increase in stress related to his uncertain immigration status. ASeTTS have requested clinical intervention by the specialist mental health team at [named] hospital due to his high risk of suicide.
[The applicant] is a polite and respectful man who engages to the best of his ability in counselling with ASeTTS. He is also under the regular care of his GP, [Dr D], and a private psychologist to help hold and regulate his fragile mental health. His mental health is such that he will require ongoing specialised mental health services and there will be no specialised support services available for him in Pakistan placing his life at great risk.”
-- Report of [Ms E], Counsellor …
We submit that while limited mental health facilities exist in Pakistan, the level of care, accessibility, and the quality of care and availability of highly qualified professionals in Pakistan would require a substantial level of mental health support, something he would directly and negatively impact his ability to relocate within Pakistan. We also note the general level of discrimination he would face as a Pashtun in other areas of Pakistan, and submit that due to his poor mental health he would be ill equipped to relocate within Pakistan, especially to larger cities with the increased level of violence and crime that is prevalent in those cities.
An added impediment to relocation is the lack of family or support outside of his home area, which combined with his poor mental health would make it difficult to secure employment outside of his home area.
With respect to the Applicant’s mental health challenges, in his response to the invitation letter of 24 February 2022, the Applicant himself stated:
As you know, I have serious mental health problems. As such, if I were forced to return to Pakistan, as a former polio eradication worker that is known to the Taliban, I would be subject to discrimination generally in Pakistan, assuming the Taliban doesn’t either jail me or attack me. This discrimination would be significantly worsened once my mental health issues became known to the authorities in Pakistan.
In your questions you say that it is the actions of others that need to be shown to be a threat to me. The acts of discrimination by others, not to mention the actions of violence or other negative attacks on me by the Taliban or the acts of other people that are a direct threat to me.
I have been and would be the target of the Taliban because I was a known polio eradication worker. As you see from the attached articles, polio eradication workers have been targeted in Pakistan at least since 2013, with the attacks continuing through 2021 (see further evidence articles including “Gunmen kill constable escorting polio team in northwest Pakistan” dated 24 October 2021 with the last submission package). The discrimination I would face as a former polio eradication worker and a person who has serious mental illnesses would be substantial and would likely prevent me from getting sufficient treatment for my mental health issues – especially given the severe lack of mental health facilities that are equipped to deal with serious mental health issues. Given that it is estimated that more than 90% of people with common mental disorders remain untreated in Pakistan (see Annexure 7 from the previous submission – an October 2020 article from the respected medical journal Lancet), being a former polio eradication worker know to the Taliban would make even harder than a normal Pakistani citizen to access what little mental healthcare exists in Pakistan.
I have been seeing different health professionals a few times a month for my mental health issues. I have tried to suicide and self-harm few times in Australia and hospitalised few times as well in Australia. And I am also having strong constant suicide thoughts and health professionals here Australia helping me with it. If I were to return to Pakistan it would be hard for me to find a job and place to live because my family is poor and not rich enough to support me. It will not possible for me to find a job and a place to live with my such mental health issues.
There is a big mental health stigma in Pakistan, including in my family and it is widespread in our village where mental health patients get abused by family members. I still remember in my village whoever had mental health they called them crazy people and completely socially isolated and abused them. The villagers including their families were not let them include any social or family activities. Those mental ill people were completely discriminated against by villagers and their families because of their mental health issues. My family does not have any mental health awareness and I believe they will completely socially isolate and discriminate against me as they do not believe there are any mental health issues. They refer those mental health issues to supernatural power or curse from God or Jinn (ghost) and often treat these mental health issues through traditional ways, in which patients get physically abused and commonly. I have excerpted (see yellow highlight) some news articles below for your reference - please see related articles at:
are many myths regarding the mentally ill in Pakistan. People who have psychosis are shunned as violent. Secondly, it is believed that mental disorders are communicable, that is, the evil spirit of the patient can afflict the persons interacting with the patient.
Thirdly, many people feel that shrines offer the best chance of recovery from the affliction. It is frequently reported that patients are physically harmed as part of their treatment. Mass media also stigmatizes mental illness. Disturbing revelations about the spiritual healers in live telecasts exaggerate the problems in the treatment of mental disorders.”
Please see related articles:
factors always hinder the progression of mental health in Pakistan. Firstly, in our society, there are many myths regarding mentally ill patients. There is discrimination of psychosis in our society by tagging these individuals as fearful and violent. Secondly, we feel that through interacting with them, their evil spirit or possessions can harm us too. Thirdly, many people feel that the right place for them is in shrines, where they are physically harmed to get rid of these possessions. All these misconceptions increase the taboo around mental illness thus we need to understand that mentally ill people are challenged doubly, on one hand they suffer from the symptoms of illness and on other hand the society increases their sufferings.
Another important factor is the contribution of mass media to stigmatization of mental illness. Through television, radio, and other social media, mentally ill people are cruelly portrayed as a laughingstock. Moreover, they are stereotyped as different and subject of ridicule. Furthermore, the community is highly influenced by the way the media portrays mentally ill people as being involved in criminal activities. Thus, the abovementioned factors are potential reasons and explanations that elaborate the stigma on mental illness.”
Please see related article at
thing is that mental health facilities are very limited in Pakistan. Pakistan is home to about 200 million people but has one of the poorest mental health indicators and less than 500 psychiatrists for this population size. This paucity of mental health professionals in Pakistan creates a massive treatment gap, leaving more than 90% of people with common mental disorders untreated.”
Please related article at
There are dozens of articles available online about Pakistan poor mental health condition and their availability in Pakistan
I will commit suicide if someone forces me to return to Pakistan. As I have tried to commit suicide or self-harm and hospitalised few times and also having constant strong thought of suicide, and I will try again even in Pakistan if my mental health condition stays same and having constant suicidal thoughts. This is the state of my mental illness. This is how I strongly feel, and even if you may not understand how I feel this way, I suggest you must accept my feelings as valid.
To me, as I am today, suicide is the only solution I know of if I am forced to return to a country that is going to discriminate against me, treat me like a piece of garbage, have the police pursue and arrest me as
Furthermore, suicide is a crime in Pakistan if you would try to self-harm or suicide in Pakistan, either I would have arrested, harassed and fined by police by now because police often harass those who try to commit suicide. Suicide is a criminal offence under section 325 the Pakistan Penal Code, with punitive laws imposed for attempted suicide punishable by a fine of Rs10,000 and/or imprisonment which is a big worry for me. Therefore, I or my family will be scared to seek any help for my attempted suicide, self-harm and mental health issues because of police harassment and my imprisonment. please see article at
is a big mental health stigma in Pakistan, including in my family and it is widespread in our village where mental health patients get abused by family members. I still remember in my village whoever had mental health they called them crazy people and completely socially isolated and abused them. The villagers including families were not let them include any social or family activities. Those mental ill people were completely discriminated against by villagers and families because of their mental health issues. My family does not have any mental health awareness and I believe they will completely socially isolate and discriminate against me as they do not believe there are any mental health issues. They refer those mental health issues to supernatural power or curse from God or Jinn (ghost) and often treat these mental health issues through traditional ways, in which patients get physically abused and commonly Please see related articles at:
the end, I can only tell you that my problems with suicide are not a ruse or stunt to try and gain a visa outcome. My doctors are trained to detect those sorts of fake reports, and as you’ll read from multiple doctor reports submitted previously, my mental illness is real and is a direct threat to me. I wish this weren’t so, but we all have to live with the “cards we are dealt” and for me that means living with severe mental illness.
I ask you to believe and understand that I do not self-harm by choice, nor do I self-harm to try to get your attention or qualify for a visa. I self-harm because of my illness, especially when I am faced with what appears to me to be a no-win or desperate situation I cannot understand or process mentally.
For me, it comes down to a simple truth – with proper support from psychiatrists and medical facilities, I can live a relatively normal, safe life in Australia. If I were forced to return to Pakistan in my current shape, I simply don’t have the ability to process something that terrifying. I don’t have the ability to know how I could even begin to survive the threats and discrimination from others including the Taliban that I would face because of my past activities – activities that I consider are honourable, but the Taliban considers as evil.
The precise relevance of the Applicant’s malaria disease to the present application remains obscure. The submissions received appear to imply that he claims that his physical condition would give rise to a real chance of serious or significant harm on return to Pakistan or that it would be unreasonable to expect the applicant to relocate to another area of Pakistan, on return, due to his physical condition and the inadequacy of health services in Pakistan either in isolation or, somehow, in combination with his other claims for protection.
It is likely, that the Applicant will continue to suffer mental health issues on return to Pakistan and that he may require mental health treatment and support in Pakistan.
The Applicant’s capacity to rely on his family support network in Pakistan if experiencing mental health challenges is questioned by the applicant. This is the only source of evidence before the Tribunal from which to derive a conclusion on the matter. In this respect, it is possible that, given his particular perspective, the evidence is not entirely reliable. The evidence provided by both the Applicant and his representative is that, while there are available mental health support services in Pakistan, these are less adequate than those available in Australia. While this may indeed be the case, it is not the relevant test for the purposes of a decision on review. The test is whether the persecutory conduct (in this case an inability to access physical or psychological medical treatment) is systematic and discriminatory in the relevant sense described in Chan,[51] Haji Ibrahim[52] and Applicant A.[53] Given my findings above relating to the applicant’s TTP related claims, it follows that I find the submissions of both the Applicant and his Representative to the effect that the Pakistan state tolerates or condones the denial of physical and or mental health care to persons who may be in disfavour with the TTP to be unpersuasive.
[51]Chan v MIEA (1989) 169 CLR 225 at 429–430 per McHugh J, by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.
[52]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95] per McHugh J.
[53]Applicant A v MIEA (1997) 190 CLR 225 at 233 per Brennan CJ.
Accordingly, I find that there is less than a real chance that the Applicant will experience serious harm on return to Pakistan for the essential and significant reason of his physical or mental health care needs and, therefore, the fear of persecution expressed by the Applicant for this essential and significant reason is not objectively well-founded in the relevant sense.
I further find that inadequacy of physical and or mental health care services in a receiving country generally is not an intentional act or omission for the purposes of complementary protection provisions. Accordingly, any such inadequacy would, as a general proposition, not engage Australia’s complementary protection obligations at s 36(2)(aa) of the Act.
As for the Applicant’s documented propensity to engage in self-harm and the possibility that any attempt to return him to Pakistan in the future might precipitate such conduct, I note that the act of return itself does not give rise to complementary protection obligations.[54] I further note that adverse mental health outcomes arising out of return do not, in and of themselves, engage Australia’s complementary protection obligations, even in circumstances where self-harm is a potential consequence.[55]
[54]SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (approved by the Court in in GLD18 v Minister for Home Affairs [2020] FCAFC 2).
[55]GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [90] per Allsop CJ and Mortimer J (Snaden J demurring on this point at [103]).
Taken in isolation, therefore, I find that there is less than a real risk that, if the Applicant were returned to Pakistan, he would suffer significant harm now or in the reasonably foreseeable future from any person for the essential and significant reason of his physical and or mental health conditions.
For reasons that will be discussed below, it is unnecessary to consider this aspect of the Applicant’s claims in isolation in further detail.
Circumstances of return (s 36(2)(aa)) and special vulnerabilities
I note that Australia’s complementary protection obligations are exhaustively provided for at s 36(2)(aa) of the Act as follows:
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.
The medical evidence before the Tribunal satisfies me that this Applicant has particular mental health challenges that are likely to become acute in the course of returning him from Australia to a part of the receiving country where he might reasonably be expected to safely reside in the reasonably foreseeable future.
The available country information further satisfies me that, given such a probable outcome on return, the Applicant is unlikely to be able to access the necessary support required to sustain life. In the specific circumstances facing this particular applicant, this finding appears to be a rational and reasonable conclusion as a matter of practical reality. In the event that such likely and probable outcomes arise, there is clearly a real risk that the applicant could fall victim to acts or omissions by parties, including agents of the Pakistan state, amounting to significant harm to the applicant within the contemplation of s 36(2A) of the Act.
100. Accordingly, I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
CONCLUSION
101. 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). For the reasons discussed above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
103. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Dr Colin Huntly
Member
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