1727032 (Refugee)

1727032 (Refugee) [2022] AATA 2621 (22 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Clare Hughes (MARN: 5511821)
CASE NUMBER:  1727032
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:22 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 June 2022 at 11:45am
CATCHWORDS
REFUGEE – protection – Pakistan – imputed political opinion and fear of harm from Taliban – oldest son of tribal leader participated in meeting with army – other participants killed and threat letters and telephone calls – brief work for non-government organisation – credibility – no involvement in tribal leadership since original meeting – no threats or harm to father and brothers remaining in home country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claimed and I accept to be a citizen of Pakistan, applied for the visa on 28 April 2015. The delegate refused to grant the visa on the basis that the applicant’s claims were found not to be credible. Based upon what was accepted the delegate found that the applicant did not meet the requirements of s 36(2) of the Act.
The applicant appeared before the Tribunal on 5 April and 24 April 2022 to give evidence and present arguments. The first hearing was held in person in the Adelaide Registry and the second by MS Teams.
I determined it was reasonable to hold the second hearing by video conference having regard to the nature of this matter, of what remained to be discussed and the individual circumstances of the applicant.
The Tribunal hearings were conducted with the assistance of an interpreter in the Pashto/Pushtu and English languages.
The applicant was represented in relation to the review.
The Tribunal notes that two witnesses were listed, [Mr A] and the applicant’s father, [Mr B]. When asked regarding the witnesses the applicant expressed reluctance to call his father. He noted at the second hearing that his father is sleeping at that time and that as it is Ramadan he is also fasting (1.13:50). With regards to the other witness, [Mr A], the applicant expressed concerns for the welfare of the witness were we to proceed to take evidence from him. I put to the representative that she should determine whether they continued to want the witness to appear and then adjourned for ten minutes allowing the applicant and his lawyer to converse.
Upon return from the adjournment, it was agreed that the knowledge of [Mr A] was limited regarding the scope of issues that he could respond to and as it appeared that it would not add to what had already been provided by the applicant and in the statutory declaration of [Mr A], it was agreed that there was no need for the witness to appear. No further comment was made regarding the applicant’s father as a witness.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
The applicant was born in [Location], South Waziristan in [Year]. He was raised in [Location] until moving to Bannu, Khyber Pakhtunkhwa, in 2001, first living with his cousins, until moving into the current house in which his family lives in 2004. He has three brothers who are currently living in Bannu. The oldest of the brothers is married and all three are engaged in studies. The three brothers, including the wife of the eldest, and his parents live in the same house in Bannu.
The applicant is married. His wife lives with her parents in Bannu.
It is not claimed that either his brothers or his father have been harmed for reasons associated with the claims raised by the applicant.
The applicant described where his family live as being deeply tribal. At the hearing he explained that families look after their own security because the government doesn’t. He said that for this reason, unless someone is a part of a family, they will not be safe.
In addition, he said that if a decision is made by a mullah, no one can resist such a ruling, not even the government.
The applicant claimed that his patrilineal heritage is of forebears who have held judicial roles in the tribal system. He said that his great-grandfather was Malik [Mr C]. He said that a malik is an elder of a large area. Originally, they were named by the British and given the title. He said that through this lineage his relative, [Mr D], held the role for the Wazir tribe.
The applicant’s claims of being actively pursued by the Taliban
In the early 2000s in response to the growing threat of the Taliban the applicant explained how the Pakistan military moved into the area where his family were living. At this time, the applicant claims that the army told the community that all of the prominent people had to attend a jirga. As his father was ill, it was left to the then [Age]-year-old applicant to attend.
The applicant claims that at this 2005 meeting there were about 60-80 representatives of his tribe. He described it as a key meeting with the head of the tribe, [Mr D], and the Army, during which they discussed how to fight the Taliban. He said that he didn’t realise at the time that the Taliban would see anyone who attended the jirga as a personal enemy.
The applicant claimed that [Mr D] was killed on the road out of the meeting. In total immediately following the close of the meeting when participants were heading in their different directions five people were killed and one was wounded.
The applicant had claimed that 40-50 of the people who attended the event were killed in the subsequent years. The applicant provided some names of the individuals. According to the applicant these targeted attacks were for reasons of attending the meeting and again according to the applicant the attacks continued to as late as 2019. When I asked him how he knew that these deaths were a response to the attendance at the jirga, he said that the attendees knew each other and know who was killed. I put to him that a lot of people were killed during fighting in 2011-2013 in ways that weren’t as a result of targeted killings. He said that he would hear from others that those people were killed by the Taliban. I put to him that people can be killed by the Taliban without being targeted for attending the jirga. He reiterated that they were targeted because many Taliban commanders were killed at that time and this was their response. I find the applicant’s reasoning vexing.
The applicant said that after the meeting the Taliban wrote to each participant saying that they knew about the jirga. The applicant presented a letter to the Department claiming to be this same letter he had received. It is addressed to the applicant and was claimed to have been delivered to his ‘city’ home in Bannu and picked up by his brother. He estimates that the letter was despatched two months after the killings.
The content of the letter is relevant and as such I will reproduce it in its entirety:
All praise belongs to Allah whose honour and grandeur renders all vane and deceitful worldly powers honourless. Today the Jews and Christians are seeking to annihilate Islam and they wish to make the Muslims go astray. They have bought the tribal Maliks and we have suffered great loss because of the tribal elders. Malik [Mr D] held a Jirga against us in collaboration with the government. He was killed on his way back from Jirga. We have details of the Maliks and relatives who had joined him in Jirga. We will not spare their lives either. We will bring them to the same end. And since you are his relative, we will not spare your life either.
[The applicant] son [Mr B] should be ready for the death squad. Action may be taken at any time.
The applicant claimed that ‘everyone that I knew who attended the meeting’ has moved away or been killed. He wrote in his statutory declaration of 2022 that his friend [Mr E] was discovered murdered [in] September 2019. No independent reporting of his friend’s death was provided to the Tribunal. While it is possible that not all deaths are reported, considering the newsworthy nature of a Taliban targeted attack on someone senior enough within the Wazir tribe to have attended the jirga in 2005, I am not swayed by the argument that the reasons for the death not being reported is because not all killings are reported.
The applicant claims that after receiving the letter he stayed at his village home in Bannu for a year. He claimed that no one knew where their village home was so he could lie low and avoid being targeted directly by the Taliban. I put to him that he had earlier said that his father was a leader of 10,000-20,000 people. I said that surely some of the people knew where he lived and would have made it known to the Taliban if he had been a person of interest. He responded by saying that everyone knew where in their home village his father lived, but then they moved, and he suggested that the people wouldn’t have known where they had moved to. I put to him that they had moved a year earlier and that it is difficult to believe that a tribal leader of the stature the applicant had claimed for his father could move to another village without anyone knowing. He reiterated that no one knew where he lived. I find this claim and limited reasoning troubling.
I asked if he could reflect on, if the Taliban wanted him dead why they hadn’t sought or threatened his father or brothers to get information about his whereabouts. He said that they usually don’t threaten people to find out where someone lives. He again said that he didn’t tell anyone, and nobody knew where they lived. As noted below, I have concerns with the applicant’s reasoning.
The applicant claims that in 2006 he moved to Peshawar to begin his studies. While there he said that he lived for five years within the walled compound that encompassed the college, university, hostels and shops. He said that he only rarely travelled back to his home, such as on special occasions. The applicant said that the Taliban were mainly active in the tribal areas rather than urban areas such as the city of Peshawar. He said that because of this and living within a walled compound and the presence of university guards he was protected.
Considering the centrality of the credibility of the applicant’s claims about the ongoing interest of the Taliban in him, I noted that the situation in Pakistan was very bad in 2009-2011, for which detailed data is discussed further below, and yet nothing happened to him then. He said that during that period the army’s operations were going against the Taliban, so they were not focused on the civilians and at that time he was completely confined to the hostels in Peshawar.
The applicant claims to have joined [an NGO] in March 2011 to help displaced persons. He said that his role was to [do Job task 1]. He said that he worked for them for about 7 - 10 days. I accept that the applicant worked for [the NGO] as described. He said that he left as he received a letter from the Taliban.
The letter, dated [March] 2011, was claimed to have been delivered to his father’s house with the demand that he stops working for the NGO. The content of the letter is as follows:
A Muslim instructs other Muslims to stop from vices and to treat others well. But now Muslims have become enemies to their own brothers and sisters. You are aware that Islam forbids parties where there is dance, singing and music. Despite this, you are leading people astray through music and use of instruments. Apart from this, you also work in a foreign organisation who apparently works with welfare projects but its real objective is to abolish Islam and to make the Muslims go astray. These organisations belong to the Jews and Christians and it is forbidden in religion to receive money from them. We are keeping an eye on you. Strict action will be taken against you. We will not spare your life.
Regarding the letter, I asked why he thinks that they sent the letter instead of killing him. He said that because they wanted to take him alive and make an example of him. I asked then why he thinks that they didn’t come and take him alive instead of calling and sending a letter. His response was that the Taliban were not very active in the capital city. He then said that those times that he would leave the safety of his compound he would wear a burqa.
I noted that the threat letters appear to combine different aspects of the applicant’s life such as that he works for an NGO and that he plays a musical instrument. I noted that this would indicate that the Taliban kept records of people they were threatening and had some sort of bureaucracy that pieced together such information. The applicant said that they do keep records of people and to whom they send letters and that it’s also in an individual’s memory.
The applicant claims that after receiving the second threat letter he finished his studies and went to live in a friend’s basement in [Suburb] in Peshawar.
After that he claims to have begun [Subject 1] studies from home where he said that he lived for six months. Following this, he claims to have obtained a job as a [Occupation 1] at [Institution]. He claims that he was supposed to [do Job task 2] but because of the [March] 2011 threat letter and the college not having started [doing Job task 2] he asked the [institution] to place him elsewhere, further away from Peshawar where he claimed he was last threatened. They did this and the applicant took up a role in May 2012 as [an Occupation 2] and [Occupation 3] in [Location] in Haripur District which he described as being 200 – 250 kilometres (four hours drive) away from Peshawar. Due to the seniority of the role, he was able to also live on the [institution] grounds.
The applicant claims in his statutory declaration that while he was in [Location] he changed his phone number and had it registered under his uncle’s name, he only went home on very few occasions and that he didn’t speak with his old friends. He said that he lived [at his workplace] for security reasons. The applicant said that he married his wife in April 2013, but he couldn’t have a big wedding because he didn’t want to draw attention to him. Instead, he had a small ceremony with his and her families in Bannu. The applicant claims that he has not seen her since his wedding.
During this period, at the hearing he claimed to have received two calls, the first in 2012 and the second in 2013. He said that he wondered where they got the phone number from. He said that he was surprised how they could keep obtaining his phone number, especially as he had changed it after 2012.
He said that the call in 2012 came from North Waziristan as he recognised the code. In this call he claims that he was told that the Taliban intended to capture him.
According to the applicant’s 2015 statutory declaration the 2013 call included threats that referred back to the previous letters that the Taliban had sent. It was claimed that the caller said that, ‘they had a new strategy that they were going after all of their targets and they would not spare anyone whether they were at school, college or in the mosque.’ It was also claimed by the applicant that the caller explained to him why they were after him, listing ‘many reasons…He said first he knew that I was part of the meeting with the Government and was supporting the government side, second that I had worked with the NGO which was involved in anti-Islamic activities which means that I am friends with Jews and other non-Muslims; and finally that I was playing a musical instrument and teaching it to others.’
The applicant claimed in his written statement that within a few days after the call two guys had approached the watchman at his [institution] asking about him. He thought that this was suspicious as it came so soon after the phone call.
The applicant claimed that these incidents led to him deciding to leave Pakistan. He claimed that even through the process of obtaining the visa he kept a low profile, ‘When I needed to go to Peshawar to give documents for the visa, I would stay in hiding in my cousin’s house or in the university hostels with friends and would only stay a few days at a time.’

I asked the applicant why his father had kept the threat letters. He said that his father kept them as a record as he considered them important. He said that the originals are with his father.
The applicant mentioned in the form of a statutory declaration that his father and his brother received a threat in 2018 that was directed at them but relating to the applicant. The claim was that ‘some TTP people had come and threatened him and my younger brother…[they] said to my father that they are aware I am not back in Pakistan and if they find out that my father or my brother helps me come back to Pakistan they will kill my father and brother also.’ I put to him that his father is the head of a clan within the tribe which he had given evidence was aligned against the Taliban, and yet it seemed strange that his father was not harmed despite being physically confronted by the Taliban. He said that the problem for him started when he attended the jirga.
Regarding the jirga I put to him that as he was [Age] years old when he attended that it would be reasonable to believe that any potential persecutor would assume that he had taken instructions from his father. I also noted that his tribe continued to fight against the Taliban in the years after the meeting and yet his father who is claimed to have some leadership and hence decision-making role has never been harmed. He said that this was a particularly important meeting and as he was [Age] years old at the time, he was considered an adult.
I asked if he was saying that his father had never attended another important meeting since 2005? He said that his father was attending all of the meetings in the area except that one. I put to him that there would have been many important meetings that discussed security issues especially when the village defence committees were established. He then claimed that his father stopped attending any meetings that had anything to do with the Taliban after [Mr D] was killed. He said that they are no longer living in Waziristan and instead the army is living in their house. As they are not living there, they are not asked to participate in meetings, he claimed. I note that the applicant was living in Bannu for four years before the 2005 meeting and yet was still claiming to have been invited to the tribal gathering.
The witness [Mr A] wrote that the applicant spent a lot of time staying within the boundary of the university and hostel compound and that he was aware that the applicant had received ‘some threats.’ Though, the witness clarifies, that he was never told by the applicant about the threats.
The applicant has claimed that he is wanted by the Taliban. That the attention they have shown on his activities began in 2005 following his attendance at a jirga that planned how his tribe would coordinate their response against the Taliban at that time. Since then, he has claimed that he has received threat letters and phone calls and that his family have been approached regarding him. In considering this claim I note that these events occurred across a 13-year span with the first letter being received in 2005 and the second six years later in 2011 and 2023 as well as phone threats with the most recent claim being of a physical confrontation in 2018.
I found it implausible that the Taliban tracked threat letters and collated information about individuals across a span of years and collated them in such a way so that they could be used in the future. Instead, the applicant’s claim that it would be based upon an individual’s memory is more plausible but requires further consideration. The letters and the threats repeatedly infer action being taken and yet the applicant has not claimed that any attempted harm against him was undertaken. While the applicant places emphasis on his efforts to lie low and hide out in his home or friend’s basement or university campus, I have some doubts about this. The applicant has claimed that his home was somehow not known to the people in Bannu despite the applicant’s father being an elder in his tribe. Even were this to be true, the applicant’s claim that the Taliban do not use coercion tactics to get information out of others, such as where a family lives, despite overwhelming evidence including what was submitted by the representative to the Tribunal suggesting that the Taliban use a wide range of terror tactics to achieve their aims makes his claim that they did not know where he and his family lived implausible. For this reason, I do not accept that the location of the family’s home would not be known or that the Taliban would not use coercive tactics to obtain that information.
While I give some weight to the evidence provided by the witness [Mr A] and the applicant’s claims of spending a lot of time within the boundary of the university and hostel, the applicant did give evidence that he had returned home from the campus on special occasions and yet no harm had come to him.
Were the Taliban intent on harming the applicant then there is no convincing reason for why they were unable to do so for the long periods that he remained living in Bannu after the 2005 jirga and even while he claimed to have been hiding and keeping a low profile while studying [Subject 1] in 2011-2012 from his home or when he returned home for prominent Islamic festivals while he was studying at university. As is evidenced below, the period from 2008-2012 was a particularly brutal period in the war against the Taliban, a period when the Taliban were reaching into urban and protected areas and as such would have had the ability to reach the applicant. The applicant even noted that during this period a suicide bomber was able to enter into the protected area of his university compound at one stage.
I also note that 17 years have passed since the 2005 jirga. While I accept that some vendettas can span generations, this is not claimed to be a vendetta. It can loosely be described as a political claim in that the Taliban saw him as a threat due to his role within his tribe. The applicant has been absent from Pakistan for eight years. His impact upon the tribe would have gone from minimal as an [Age]-year-old attending a jirga to virtually zero as someone who was living abroad and yet he claims that the threats continued. This lends further weight to a view that the applicant’s claims of the Taliban having interest in the applicant since 2014 when he left are not credible.
I also note that since 2005 the applicant has not been involved in any tribal councils, he has not contributed to the leadership of the tribe and made any decisions regarding the tribe’s stance against the Taliban. Instead, it has been his father. The applicant appeared to backtrack when I noted this by saying that his father avoided council meetings that discussed the Taliban despite initially saying that his father had attended all of the meetings. If anyone was going to be a target of the Taliban in his family it would be the applicant’s father, just as [Mr D] was the target of the Taliban in 2005. And yet there are no claims that the applicant’s father has been harmed for reasons of his own role in the tribe and association with the tribe as a tribal leader despite remaining in Bannu and being claimed to have been physically confronted by the Taliban in 2018. This lends considerable doubt about the applicant’s claims of continuing to be targeted through this period by the Taliban for the reasons of the attendance at a single jirga.
Taking into consideration the above reasoning, I find that the applicant’s claims of having been targeted by the Taliban by way of threat letters, phone calls and confrontations with his family members are fabricated. I find that the applicant attended the 2005 jirga as claimed but that following this event the applicant did not receive any threats, he did not receive any calls and his family did not receive any threats.
Based upon this finding I also find that the applicant was not confined to his hostel and university campus any more so than any other student would have been at that time.
The applicant as a musician
The applicant claims that while he was studying at [College], he learned to play a traditional Pakistani musical instrument known as a rubab, from a friend who is now in the army. The applicant put this period as being around 2009-2010.
The applicant’s friend, [Mr A], made a submission stating that the applicant had ‘expressed a love for traditional Pashto folk music and he often played for friends around the university.’ He added that the applicant gave lessons to people and that it was well known that he could play the rubab well.
The applicant claims that people will remember that he was a rubab player. He said it doesn’t matter how long it has been, people remember if someone played an instrument. He acknowledged that there are a lot of people who play the instrument as it is a shared cultural instrument for Afghans and Pashtuns.
I note that the applicant has not played the rubab since he came to Australia. He said that he was unable to bring the rubab with him because of how he left the country. He said that it isn’t possible to buy such an instrument in Australia as the ones he plays are made from a different wood than what is available. I asked why he didn’t ask someone to send one from Pakistan if it is an important part of his life. He said that he asked a friend, but his friend said that he’d be embarrassed to bring it in for him and that the instrument is too big to be able to juggle along with a wife and children.
I accept that the applicant played the rubab as he has claimed and that he made limited efforts, as described above, to obtain one while in Australia.
Considerations
As I have found that the applicant is not wanted by the Taliban based upon his past profile, I find that for the reasons of his past he does not face a real chance of serious harm or a real risk of significant harm from the Taliban.
Nevertheless, I accept that he is a member of a tribe that is aligned with the government and army against the Taliban. I accept that he is the eldest son of a tribal elder. I accept that he has a skill to play a musical instrument and he may choose to play it when he is in Pakistan. I accept that he will need to find work.
Prior to considering whether any harm arises from these specific circumstances I will engage with the general security situation in the tribal districts and KPK of Pakistan. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that often accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence can and did occur with virtual impunity. With greater security these events are constrained if not eliminated. To undertake this assessment of the security environment, I shared with the applicant information including the number of terrorist incidents and civilian deaths as well as discussed qualitative assessments. I also considered country information presented by the applicant’s legal representative. These discussions contribute to a view of how the general security situation shapes the applicant’s specific risk profile.
I presented to the applicant a graph from the Carnegie Endowment for International Peace which consolidates the conflict related fatalities in Pakistan from three different databases. The graph shows a peak in deaths at around 12,000 per year in 2009 reducing to about 6,000 per year from 2011 through to 2014 and then dropping to under 1,000 and in the few hundreds by 2019.[1]
[1] Political Violence in South Asia: The Triumph of the State? - Carnegie Endowment for International Peace >
The applicant responded to this data by saying that while the situation was at its worst, they were unable to come to look for him and find him as he was inside the hostel and the army were undertaking operations everywhere. Before they wouldn’t be able to find people, he claimed, but unfortunately these days they can find people because the Afghan Taliban are in power. He said that now it is easy for them to cross into Pakistan as they are a government there.
I shared with the applicant data from the South Asia Terrorism Portal which shows that in South Waziristan there have been single digit civilian deaths over the past few years.[2] I also showed that when looked at the disaggregated data separating civilian deaths from those of security forces it shows that the majority of deaths are among the security forces. He said that if he was there and started to [do Job task 2], or work with the police, or NGO he would be targeted. He said that his future is tied to these professions. He said that when they find him in any of those roles, they will see that he has a background and had been targeted before.
[2] South Asian Terrorism Portal >
I put to the applicant that there is a change of focus by the Taliban away from civilians and onto security personnel. DFAT suggests that under the leadership of Mehsud, the Pakistan Taliban ‘has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives.’[3] He agreed but said that he is not a normal civilian. He said that when a mullah makes a decision to target someone no one can change that and since he has been targeted, he will not be safe anymore.
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Pakistan’ January 2022 [2.40]
Regarding the Afghan Taliban he said that they have the reach into Pakistan to target people such as him. He said that they are very powerful and regardless of the area you go they will find you. He said that they have offices in Bannu. He said that the media portrays the situation as stable but on the ground the situation is different.
I note the submissions by the applicant’s legal representative referencing the 2022 DFAT report which noted an increase in incidents from 2021 following a six-year downward trend and that in-country contacts told DFAT that militants were regrouping.[4] Other major reports referenced in the submission and reviewed in detail included the 2021 EASO Pakistan Security Situation Report and 2019 UK Home Office update along with various other articles and reportage.
[4] Submission dated 31 March 2022 referencing Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Pakistan’ January 2022
Overall, it is widely acknowledged that the security situation in 2009-2011 was perilous. The question before me is to consider what the future holds and how such an environment will impact upon the fears of harm the applicant holds. While I acknowledge that there has been an uptick of violence over the past two years, it has come from a very low base, it is location specific, and it is more targeted rather than the random violence of the past which included the indiscriminate killing of civilians. Referring to percentage increases in violence over the past two years or percentage decreases since 2009 is not useful. Specifically, for South Waziristan and Bannu, the number of civilian deaths is greatly reduced with single digit civilian deaths over the past few years indicating improved security.[5] While I acknowledge the arguments put to the Tribunal including but not limited to that not all attacks and deaths are reported, overall, I find that the security situation is robust and that this influences the applicant’s claims in that it provides a less forgiving environment for potential persecutors to harm him than any relevant period in the past. In making this finding I acknowledge and take into consideration the Taliban’s success in neighbouring Afghanistan and that this has led to a degree of uncertainty for the situation in Pakistan including diminishing the value of using the past to inform the future. While I acknowledge the submissions of the representative pertaining to the Pakistan Taliban being inspired by victory in Afghanistan, I also note the submission correctly references peace negotiations facilitated by Afghanistan’s Haqqani Network indicating a more nuanced interpretation of the impact of the Taliban’s victory in Afghanistan.
[5] South Asia Terrorism Portal
The applicant’s tribal profile
I accept that the applicant is a member of the Wazir tribe and specifically of [a] sub-clan of [a] clan within the Wazir tribe (I note that the applicant referred to the clans as castes).
The applicant has claimed that the Taliban have an office in Bannu and that this will increase his risk. I interpret the evidence differently. Giving the applicant the benefit of the doubt and accepting that the Taliban have a permanent presence, possibly not in the form of an office, then it lends further credit to an analysis that as his family and particularly his father, an elder in a tribe that is aligned against the Taliban and would be of a greater threat to the Taliban than the son who attended a single meeting 18 years ago, has not been harmed, nor would he be was he to return.
The applicant claimed because he comes from a caste and sub-caste that is focused on education and public service, he faces harm from the Taliban. I accept that his caste has a reputation for education and public service. But I put to the applicant that I have not seen any information that the Taliban are targeting people specifically because of their clans/castes even if the clan/caste is focused on particular issues that may be offensive to the Taliban.[6] I also noted that no one from his family has been harmed despite being from the same clan/caste. This is particularly relevant as the father is an elder in his clan. He said that the tribe is scattered including in Islamabad and other places. The applicant said that he was targeted specifically as an individual, adding that it is those who support the government and not a whole tribe that is at risk.
[6] Research was undertaken through Refworld and Google.
Despite his three brothers, wife, wife’s family and his own parents all living in Bannu and being of the same tribe they have not been harmed. I acknowledge that the past is only an indicator of what may await the applicant in the future, but I place considerable weight on this as the period of Taliban activity in western Pakistan extends across over two decades which provides considerable insights into how the future will play out. I also note that there is no information available to the Tribunal that sub-castes/clans are being targeted. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for the reason of his tribe, clan/caste or sub-clan/caste.
I have also considered whether the applicant’s blood relationship with [Mr D] would place him at future risk. The applicant had claimed that he has been identified as the ‘single biggest supporter of [Mr D]’ in his immediate family. Noting that I have not accepted the threats that have been claimed to have occurred and that it has been seventeen years since the passing of [Mr D], I find that the applicant’s support of him at the age of [Age] has no lasting impact on his risk profile and does not in of itself lead to the applicant facing a real chance of serious harm or a real risk of significant harm.
I have also considered whether his risk profile would change as a result of him being of a lineage from which tribal elders emerge and the eldest son of his father. Noting that his father has not faced harm as a result of his role as an actual tribal elder for a period of over twenty years, I find that the applicant potentially being a future tribal elder does not face a real chance of serious harm or a real risk of significant harm arising from his possible future tribal responsibilities.
The applicant’s past and future work

Not having accepted that the applicant has faced any threats from the past including following his short internship with an NGO or his work as [an Occupation 2] and [Occupation 3], I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his past employment.
Regarding the future, the applicant has identified himself as working as a [Occupation 2] in the future (statutory declaration dated 28 April 2015 at [42]) and at the hearing he stated that his future is tied to professions such [doing Job task 2], or working with the police, or NGO. There is no basis upon which the applicant can credibly claim that he would be working with the police considering that he has academic qualifications and has worked in Pakistan only as a [Occupation 2] and [Occupation 3]. As such I do not accept that the applicant would work with the police. Similarly, the applicant has interned at an NGO for a period of less than two weeks. While it is possible that he may be able to access a job with an NGO, although he has never had one in the past, I find that it would be speculative based upon limited past engagement with NGOs to assume so. His training and past experience is tied to [doing Job task 2] and it is the area to which I turn my mind to.
I note that the applicant has been assigned to a [Job task 2] role for a period of two years without any incidents. He has a master in [Subject 2] degree, but he fears that he would not be eligible to [do Job task 3] due to his age.
For the reason that the applicant had not faced past harm, did not claim to have received threats for reasons of his [doing Job task 3] and no independent evidence being provided by the applicant or being available to the Tribunal showing that [occupations] such as was his area of speciality would be targeted[7], I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future were he to regain work in some capacity as a [Occupation 2 or 3] or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
[7] Research was undertaken through Refworld and Google.
The applicant’s brothers are not working professionally, instead they are working on the land, on their family-owned farm. The applicant said that the family have [number] hectares of land. He said that he would not be able to work as a farmer because he has worked hard to finish his education.
In the alternative, if the applicant was unable to find work as [an Occupation 2], he may resort to working on the family farm in which instance I find that as his family members have not faced harm over the years so too he will not face harm into the future. As such I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future were he to work on his family farm or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
The applicant playing the rubab
I accepted that the applicant can play the rubab and that he had played the rubab while in Peshawar. I have not accepted that the Taliban had in the past threatened him as a result of his rubab playing, nevertheless, country information provided by the representative does indicate that the Taliban in Afghanistan have a negative view on the playing of musical instruments.
Evidence provided by the applicant’s legal representative suggests that musicians are being harassed and have their instruments destroyed when stopped at Taliban checkpoints in Afghanistan. But the applicant is returning to Pakistan and the situation is different in that while the doctrine of the Taliban may be shared there is an alternative security structure in that in Pakistan the Pakistani government has control of the state as opposed to the Taliban controlling Afghanistan. As noted above country information indicates that the security forces maintain control of the areas the applicant lives and there is a robust security environment. This security structure will go some way in limiting the influence of the Taliban in suppressing the playing of musical instruments including the rubab.
Furthermore, the submission by [Mr A] states that it was okay for the applicant to play the rubab in Peshawar but that he could not get away with it in the rural areas. I accept this differentiation but note that there is no further evidence submitted by this witness regarding what the consequences would be.
In the submissions by the legal representative there is reference to the killing in Pakistan of a famous Sufi singer and musician.[8]
[8] ‘Amjad Sabri: Pakistani Sufi singer shot dead in Karachi: Outpouring of grief across Pakistan as famed musician Amjad Sabri is killed in Taliban gun attack on car,’ The Guardian, 23 June 2016 >
I put to the applicant that based upon the information provided by the representative to the Tribunal it seems that unless you are a famous singer or musician all the Taliban may do even in Afghanistan where they control the security situation is to take the instrument away from you. He said that would be the case for a normal musician, specifically saying that they will take the instrument and destroy it. But he claimed that due to his other risk factors he is not a normal musician.
I have also considered whether the response by the Taliban would change if the musician was also considered a teacher of a musical instrument as has been claimed in the legal representative’s submissions. No evidence was provided to back up this claim nor is any available to suggest that being a teacher in a social context and not in the professional sense would lead to some variation in the approach taken by the Taliban.[9] As such I find that being a teacher of the rubab or a player presents the same level of risk and would trigger the same type of harm.
[9] Extensive searches of CISNET, Refworld and Google
Taking the applicant’s music playing and possible teaching on its own I find that there is a real chance into the reasonably foreseeable future that the Taliban will come across the applicant with the rubab, but the harm he faces will amount to having the rubab taken from him and it being destroyed. As there will be no harm to the applicant other than the loss of an instrument, I find that he does not face a real chance of serious harm into the reasonably foreseeable future for having or playing or teaching the rubab or a real risk of significant harm as a necessary consequence of removal from Australia.
The applicant’s views on women’s role in society and their right to an education
The applicant wrote in a statutory declaration that he has in the past expressed opinions that ‘women should have access to universities and decent education in Pakistan.’ He also said that he was very influenced by politics and human rights. The applicant expressed his views of supporting women’s education at the Tribunal hearing. He wrote in his 2022 statutory declaration that he strongly believes that women have the same rights to education as men.
The statutory declaration from his friend [Mr A] states that the applicant is a supporter of women’s rights.
At the hearing the applicant said that he is interested in education for everyone, stating that females should be educated, for the reason that she is the mother, when one woman is educated, she will educate a generation. He is against those who force women to stay in the home, he claimed. He said that he was unable to go public to talk about woman’s rights because he has always been locked in and unsafe.
He said that in Australia he is living in a difficult situation as he doesn’t know what will happen to him in the future and he doesn’t feel secure. He claimed that if he was to live in a secure place he would stand up and do something.
I do not accept that the applicant has a desire to publicly express views on woman’s emancipation nor that he has been held back from expressing such views whether in Pakistan or Australia. The applicant has not demonstrated instances of having given voice to these views publicly, as opposed to privately, in the past whether on university campuses while studying or through his subsequent posts as [an Occupation 2] and [Occupation 3]. Having not accepted that he was restricted to living in compounds due to feared harm or that the applicant had received any threats or was wanted by the Taliban, I do not accept his claim that he hasn’t acted on his stated beliefs because he was unable to go public to talk about women’s rights.
I find that the applicant would continue, free from fear, to hold views on the place of women in society and their rights to an education but that he would not choose to actively voice those views beyond his close circle of friends as he clearly has to his friend [Mr A]. No information was provided nor is there information that suggests that a privately expressed view on such issues would lead to the applicant facing harm.[10] As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his personal views on women and society.
Imputed political opinion
[10] The following sources were consulted DFAT report, Refworld and Google
The applicant included in his written statement of claims that because of his imputed support of the Pakistan army and government he was at risk. At the hearing I suggested to the applicant that there were many millions of people in the area who would be supporters of the government and asked whether they were all at the same level of risk. He responded that he was at risk only because he attended the 2005 meeting, which I have considered above and found not to be a source of risk to the applicant.

100. The applicant said that the Taliban will see him as an agent of a foreign country or a spy due to his profile including having lived in the West for an extended period of time and his support of the West. I suggested to him that there are many Pakistanis who have spent time in the West and would be supporters of the West. He said that for them it doesn’t matter, it only matters for those who were targeted and that the adverse profile is compounded. As the applicant has accepted that simply having lived in the West does not create a risk profile and noting that he was not targeted I find that the applicant will not have an imputed political opinion arise from this basis.
101. The applicant also identified being considered in alignment with Christianity due to having lived in the West, playing music and working for an NGO. In Pakistan they will say that you are a friend of Christians and therefore that you are like them, he claimed. I put to him there are many Pakistani’s that travel and live abroad and asked whether he thought that they are all considered aligned with Christians. He again said that he was already targeted and for that reason it is different. As I have found that the applicant has not been targeted, I find that the applicant’s profile is no different to those others of which he agreed were not at risk of imputed as being supporters of Christianity.
102. For these reasons I find that there is no risk of a real chance of serious harm or a real risk of significant harm arising from an imputed political opinion.
Cumulative considerations
103. In summary drawing from the above findings and considerations, I accepted that the applicant is a member of a tribe that is aligned with the government and army against the Taliban and that this tribe has a focus on education and public service. I accepted that he is the eldest son of a tribal elder who was a supporter of [Mr D]. I accepted that he has a skill to play a musical instrument and he may choose to play it when he is in Pakistan as well as having the ability to teach others how to play it. I accepted that he would need to find work and this would be either as [an Occupation 2] or with his family. I also accepted that the applicant has views on the role of women in society but that free from fear he would only voice them in private and that he would be returning from the West. When considered cumulatively, noting where the applicant’s risks would coalesce and compound, for example as the eldest son of a tribal elder who plays the rubab, I find that in no combination of circumstances does the applicant’s risk profile rise to the threshold of a real chance of serious harm or a real risk of significant harm.
104. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

107. The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2621

22 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice