1730875 (Refugee)

1730875 (Refugee) [2022] AATA 3031 (12 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Latifa Al Haouli (MARN: 1175724)
CASE NUMBER:  1730875
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:12 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 12 August 2022 at 3:32pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – applicant fears harm from the Taliban, the Pakistan government and criminal elements – imputed political opinion – holding progressive views that are in conflict with those of the Taliban and other jihadist-Islamist groups – membership with the ANP and Anti-Taliban activities – contribution to a polio program – effective protection measures not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
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 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 on 28 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims and I accept that he is a citizen of Pakistan.
He applied for the visa on 23 December 2016. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims for the reasons he feared harm. Specifically, the applicant claimed, as is discussed further below, that he had participated in advocacy for female education, a polio eradication drive and in a high level ANP meeting in the year preceding the application for protection. The delegate did not accept these claims. These claims and additional sur place activities undertaken by the applicant since the delegate’s decision are considered in this decision.
The case was originally constituted to another member and a hearing was completed in April 2021. But due to the appointment of the member to the South Australian Magistrate’s Court the case was de-constituted and re-constituted to this member. The evidence provided by the applicant in the hearing under the previous member has been considered in this decision.
The applicant appeared before the Tribunal on 21 April 2022 and 13 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 matter should be remitted for reconsideration.
CONSIDERATION OF Claims and evidence
The applicant is a [age]-year-old man from the western district of South Waziristan, Pakistan. He travelled to Australia in 2013 for a one month visit on a visitor visa and subsequently travelled to Australia a second time in October 2016 at which point he made an application for protection in December of the same year.
The applicant claims to fear harm arising from his prior activities with the Awami National Party (ANP) when he was in college and more recently attending an ANP meeting in 2016. He fears harm for having contributed to a polio eradication program and spoken out about female education at the market and at two schools in 2016. The applicant claims to have received a threat letter and that his family were visited by the Taliban. Since arriving to Australia, the applicant has established an NGO in Pakistan and coordinates activities that also include a large online presence on [social media] and other social media. The applicant fears harm from the Taliban, the Pakistan government and criminal elements who may seek to kidnap him because of a perception of wealth.
Evidence and findings of fact
The applicant was born in South Waziristan. He stated that he has [siblings] who live with their mother and [father]. One brother is married with two [children], the other is currently [studying] . The reason he is studying in [a city], according to the applicant, is that the particular college he is attending is one of the best in Pakistan.
The applicant said that he would describe his family as wealthy. They have two businesses, [Business 1] and [Business 2]. . Before, when he was a student, he would help his father in the business but when he finished his studies he moved to [Country 1] in 2012.
He claims that while he was living in [Country 1], he travelled back to Pakistan usually once a year, and in 2014 when he married, he spent 7-8 months in Pakistan.
[Business 1] involves harvesting [products] that are sold in [Country 2] and Pakistan. They are bulk dealers selling to traders. No one would associate it to the family.
[Business 2] operates on a model where they import [goods] from [Country 2] and then sell them directly to [buyers].
In [Country 1], his business model was to buy [goods], and then send them by container to [Pakistan]. The applicant claimed that it was a successful business, but that he gave it up when he learned of his wife’s death that led to his return to Pakistan on [date] July 2016.
The applicant said that he didn’t return to [Country 1] because he believes that he was too well known in [Country 1]. He thought the safest country was Australia. He feared other Pakistanis in [Country 1] who might have sympathies with the Taliban. I asked why he thought that Australia, which has a larger Pakistani population than [Country 1], would be safer. He responded by saying that when he met people in the mosque, they were uneducated and from Balochistan and Afghanistan and supporters of the Taliban although there were also businessmen.
The applicant accepts that [Country 1] is a safe country, but he still felt that he could be harmed. He said that it was because he was well known. I put to him that despite his fears of being well known and wanting to seek safety through obscurity in Australia he has sought out a profile here. He acknowledged this and added that this change is for a reason, namely that when his wife died and his business ended, he chose to raise awareness and work for the rights of his people.
He said that when his house was first attacked and the letter of 2016 was received, he thought at that time that [Country 1] would not be safe for him and that Australia would be safer.
Regarding the applicant’s family, he said that they are all non-political
Involvement in the ANP
Regarding his youth, the applicant claims that he was a member of the Pakhtun Student Federation, the student wing of the Awami National Party (ANP). He claimed that he was the General Secretary from 2008-2009 at [a] College where he assisted the President by taking meeting minutes, arranging meetings, coordinating with their cabinet, undertaking party campaigning and recruiting students. He said that they would go to new students, introduce them to the party, explain the theory of Baja Khan including that it is the representative party of the Pashtuns and invite them to join.
Following this stint with the ANP, the applicant did not take any position as he said that he was studying.
The applicant confirmed that during his youth or while undertaking his role as General Secretary he did not face any harm.
The applicant said that he was the only family member who became involved with the ANP. He claims that his family are non-political and had not been targeted by the Taliban. He explained that his family home was not damaged during fighting between the Taliban and the security forces even though other houses were including some being targeted.
The applicant confirmed that his other family members do not hold any positions and are not active in their tribe.
The applicant’s wife died in 2016. He claims that during his return to Pakistan following his wife’s death, he attended an ANP meeting on 20 September 2016 in Peshawar where the discussion was about ‘Talibanisation and targeted killings by the army and ISI’. He claims that influential members of the ANP attended including Mian Eftakhar, Ghulam Ahmad Bilour, Amir Haider Khan Hoti, Haroon Bilour and Aimal Wali Khan.
At the hearing I went through each of the names and noted that of those listed as being prominent and present at the meeting only one, Haroon Bilour, is known to have been killed. He died in a suicide bombing in 2018. The others are still active and their actions are being reported in the press apart from Mian Eftakhar for whom there is no media mention. The applicant acknowledges Haroon Bilour was killed and that none of the others were.
The applicant claims that also present were previous and then current cabinet members (all office holders, from districts, provinces and national) and that they discussed how to stop Talibanisation in their community. In total he estimated that about 80-90 people were at the meeting, a meeting that he described as a provincial level meeting.
The message at the meeting was that they should stand up even against the state even if the state is supporting the Taliban. They agreed to put their efforts to stop the fighting and to put the word out that they want peace, development and democracy.
Speaking out
He said that his heart ‘softened’ after his wife’s death and that he wanted to do something for his people. On [date] August 2016 he told the headmaster of a local school, who was a friend and neighbour, that he would come and give a lecture to the students. He gave a lecture including about his experiences and the importance of education. He told the students that both male and female children need to be educated which can bring an improvement to their lives and to the area. He claims to have said that without education others will use them for their own causes including terrorism. I asked how he could remember the details of the speech so well as it was 6 years ago. He said that it is his theory and philosophy, and he tells it to people all the time. Following the first visit, he claims to have spoken at the school a second time.
He claims that he also went to the shops and bazar of [Town 1] which is a small town with one main road and a few streets running off on the sides, where he would speak about the same matters to anyone who would listen. He estimated that there would have been 60-100 people in total that he communicated with. He said that in that area he is the most educated person and as such he is prominent. Everyone knew him, he claimed, so when he spoke people gathered around him. He said that if you are well dressed people just gather to listen. During these talks he said that he would speak about the then current situation and how the state had created it. He blamed the state for the situation. He claims that in addition to [Town 1], he also spoke in another small village where there are a few shops.
Contributing to humanitarian activities
The applicant claims that he joined a team that went out to treat polio in South Waziristan in September 2016. This endeavour lasted 3 days. He said that he became involved after seeing a banner advertising the polio vaccination effort on [dates] September. He spoke to the organisers asking if he could help. They told him they needed transport and someone to convince locals who would otherwise refuse the vaccine. They said that they needed people like him. So he agreed to help. He described the three days as beginning at 8.30am and travelling to [named areas]. He said that many people were refusing the vaccines as they believed that the Americans had added something into it but nobody threatened him at that time. On [date] September, once back from his work, he claims to have been invited to a feast by his friend at which point his brother came and told him that the Taliban had come to his house looking for him. He claims to have left the area that night moving to Islamabad.
The applicant said that no one was harmed during the Taliban’s visit other than being threatened to hand over the applicant.
The applicant claims that one of the Taliban who had threatened him was known to the family as he was a local. He claims that the government was in collusion with the Taliban and allowed them to even participate in the peace committees and have an office in the capital of South Waziristan.
Threats
On 17 October 2016 the applicant claims that his family received a letter from the Taliban saying that they could legally kill him because of his ‘volunteering’ and political activities. Specifically, the letter identified his involvement in: ‘female education, membership with the ANP and Anti-Taliban activities involving the treatment and explanation of polio disease.’ The applicant stated that when he was in Islamabad he was informed by his family of the letter. He interpreted that as a fatwa which authorised his killing.
The applicant stated that the family did not receive any further threats or any follow up visits or letters.
I am vexed by this letter. The applicant’s ANP activities occurred in 2008-2009 and were confined to holding a role at the university level. The applicant was not senior in the ANP, he was not nor did he claim to be influential. And yet, he continued unharmed through the most tumultuous period of conflict with the Taliban (2009-2011) without being threatened. But that somehow in 2016, after the security situation had improved (as is discussed below) his appearance at an ANP meeting, along with a low key minor [activity] supporting a health NGO as well as speaking to small groups of people in two schools and in some markets all became known to the Taliban in such a way that someone decided to compile the information and put it into a letter. I am troubled by the implication of an impressive bureaucracy. There is no country information that suggests this to be the case. Instead, I find that someone local who knew the applicant would have learned of his activities and be behind the letter. In other words, the threat would not be institutionalised but rather known to an individual. As such I accept that his family did receive a letter and that the letter was written by someone associated with the Taliban.
Sur place activities
Since the applicant’s most recent arrival to Australia on [date] October 2016 he has organised humanitarian activities in Pakistan from Australia.
He claimed that he provided funding for school bags for school children. A video from 2019 was provided to the Tribunal showing the school principal, the above-mentioned neighbour and friend, thanking the applicant for the donation. He said that he had sent the money for the bags to the principal who had then bought the bags and distributed them. The video pans across the school yard with children carrying their back packs and includes a banner acknowledging the donation stating the applicant’s name.
The applicant claims that he made a similar contribution to a girl’s school in 2018. He said that he worked through the principal in that instance also, but the school is now closed.
The applicant also claims to have paid for students to receive three-month training from a private computer academy on the use of computers.
The applicant claims to be running a welfare organisation, the [Organisation 1]. He claims that it has upwards of [number] volunteers. While he did not have registration documents, as he claimed it was in the process of registration, he provided a [social media] page. Another page was found that also recorded information about the Association.[1]
[1] [deleted]
The applicant claims that was he to return he would continue in his role as the Chairman and Founder and would seek to promote his association. I accept that this aspiration is genuinely held.
He acknowledged that despite there being a requirement for all NGOs to register with the government[2], he does not hold a registration though he said that he hasn’t had any problems with the Ministry of Interior.
[2] Department of Foreign Affairs and Trade, ‘DFAT Country Report: Pakistan’ 25 January 2022 at [3.111]
I asked how he would be at any different risk than the [number] volunteers. He said that they are members, but that he has only about 6-8 active people who work for the association. He claims that they are not particularly at risk as they are working on common needs such as education, clean water and food and they don’t engage with the ‘no-go’ issues so as polio vaccination or female education.

He said that he coordinates members through a WhatsApp group. His plan is to mobilise people more broadly, but he first needs to get the local people into his confidence and comfortable with him. He believes that he can achieve this through the work of his group. I accept that his is a plan that he is endeavouring to fulfil.
The applicant provided a letter stating that he is a founding member of [another organisation]. He said that the organisation is for people living in Australia and includes activities such as [details deleted].
The applicant is also active on social media. His activity on [social media] encompasses supporting the ANP, criticism of the ISI and the Army. He said that he has reached [number followers] on [the social media account] which I confirmed to be the case.
He is concerned that the government authorities will harm him for those posts that are anti-establishment. He claims that the Pakistan military controls ‘everything’. Even though there is an elected government the military controls everything especially in Pashtun areas. He believes that the military wants to make Afghanistan another province of their country. Anyone who has a vision that wants to raise awareness of the people is considered a danger to them, he claims.
The applicant’s posts have varied levels of engagement with the highest at the time of the submissions reached [number] views in 4 days, which is a piece on female education and their challenges faced in Waziristan. I asked whether the woman he had interviewed would also be at risk, to which he responded that she is not in Waziristan, but that it might put her at a heighted risk.
I checked the applicant’s [social media] page at the time of writing the decision and found that on that social media application alone the video had over [number] views. I note that videos on the [Organisation 1] [social media] page routinely have around [number] views including posts showing members of the Association providing humanitarian assistance and interviews hosted by the applicant with various personalities.
The applicant claimed to have done an interview with [a prominent international program] once but that he doesn’t do Pakistan media because they are controlled.
Country information
Prior to considering the specific claims of harm I will engage with the security situation in South Waziristan. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that 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.
At the hearing I shared a graph that compiled conflict related fatalities data from three independently run databases showing a peak of deaths reaching over 12,000 in 2009 and then a steady decline to 2011 where it plateaued around 6,000 deaths and then in 2015 a further steady decline down to less than 1,000 deaths.[3] I noted this substantial decrease relative to the situation when he was present in Pakistan and asked for his comments. The applicant said that while the graph indicates improvement, the situation is volatile. He added that since the Taliban took control of Afghanistan, he anticipates the situation to drastically worsen and that this will particularly affect the border area. He said that the army has asked people to vacate their homes.
[3] Political Violence in South Asia: The Triumph of the State? - Carnegie Endowment for International Peace, September 2020 >
We discussed South Waziristan terrorism related fatalities which show that whereas the peak reached 137 civilian deaths in a year, the last several years have seen no deaths or single digit deaths.[4] The applicant responded that despite people having access to internet and mobile services the government shuts them down leading to incidents not being covered. He said no mainstream Pakistan media give coverage of Waziristan.
[4] South Asia Terrorism Portal – South Waziristan
I discussed with the applicant how country information indicates that militants are changing their tactics and targets, ‘they preferred to hit security forces, pro-government tribal elders and political leaders, etc., more frequently, apparently thinking that targeting civilians could earn them more public wrath.’[5] He responded that different tactics are used at different times and that regardless of this, someone who is well known in the area will be targeted because it spreads fear.
[5] Pakistan Security Report, Pak Institute for Peace Studies, 2021 p 49
I noted that other country information similarly reports a shift away from civilian targets, which is acknowledged by the Taliban to be undermining popular support to a focus on the military and government representatives.[6] He responded that terrorists have no religion. He claims that there is no credible information that supports such claims, though he acknowledged that they may use different techniques to gain popularity, but then he reinforced the view that they may change tactics.
[6] Department of Foreign Affairs and Trade, ‘DFAT Country Report: Pakistan’ 25 January 2022 at [2.40]
The applicant presented a proverb with the meaning being aligned with, as you sow, so you shall reap. What Pakistan did in the past, he argued, will now come back to it and the situation will become worse.
Considerations
I first turn my mind to considering the circumstances the applicant faces arising from his past activities. In summary the applicant claims to fear harm from the Taliban because of his support of female education, distant and recent past activities with the ANP and his contribution to a polio program. The applicant was not harmed during his time living in Pakistan through to 2012 when he departed for [Country 1]. He was not threatened or harmed during the 7-8 months that he remained in Pakistan when he returned to marry in 2014. Instead, the threats came in 2016 after his more recent bout of activities.
I accept that in the Taliban’s eyes the applicant had made a nuisance of himself by speaking at the markets and helping the polio vaccination drive and sitting in on an ANP meeting, leading to a visit to his home. What would have happened to him had he been home at the time the Taliban came to his house is speculative. Would he have received a warning? Would he have been killed?
A few weeks later his family received what I have accepted to be a genuine threat letter. It is relevant that I found the applicant’s nuisance to the Taliban was known by individuals rather than recorded in some bureaucratic manner, because it leads to the question of whether six years later those individuals would still remain in the area to which the applicant would be returning to, whether they would even remember the details of the applicant and even were these two aspects unfavourable to the applicant, whether the security situation would allow them to do anything to the applicant under the improved conditions that were discussed above.
Considering that 6 years have passed, and that the security forces have undertaken efforts that have led to a substantial improvement such that a small number of terrorism related deaths occur and noting the applicant’s relatively minor actions from a short period of time in 2016, I find that the individual/s who had identified the applicant as someone warranting a visit and a threat letter do not pose a real chance of serious harm to the applicant into the reasonably foreseeable future, nor a real risk of significant harm as a necessary and foreseeable consequence of return.
Regarding the applicants more recent activities while in Australia and his aspirations for the future, he has claimed that his role as a founder and chairman of an NGO places him at a heightened risk as he is a voice of protest against the Taliban.
I asked why he couldn’t work for another organisation where he isn’t the leader. He claims that there are no other organisations working in that area. He doesn’t think that another organisation will follow his ideas. At the hearing I searched the internet for organisations that operate in South Waziristan and found lengthy lists. I put this to him. He said that they don’t operate in the particular geographical areas he is interested in. I suggested that he could approach one of those organisations and encourage them to work in the area he wants to be active in. He said that there are organisations, but he knows that no real work is being done because if there had been people working there then why, he asked rhetorically, is the area so backward, why are the education ratios so backward and polio so prevalent. He said that other organisations don’t follow his priorities.
The applicant has established a presence online and on the ground in Pakistan. He has shown a commitment to the humanitarian principles he claims to have first been triggered by the passing of his wife. These humanitarian principles are also translated into his future vision of mobilising the populace as well as bringing Pashtoon scholars and others from around the world to participate in Q&A sessions, increasing his awareness raising programs to motivate girls and boys towards education and to awarded prizes to top students.
While I note that the security situation in Pakistan has improved such that there are very low numbers of incidents and few civilian deaths, I note country information indicates that NGO workers remain at risk:
3.112 DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas, NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups.
I am satisfied that the applicant’s activities encompass what would be considered as an NGO worker, human rights activist and civil society actor. While the DFAT report notes a moderate risk of violence, which it describes as, ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour,’ it remains the role of the decision maker to translate such a pattern of behaviour into the context of whether the applicant faces a real chance of serious harm or a real risk of significant harm. Although the applicant’s funding base for his humanitarian efforts are quite small, limited to what he can raise, his footprint on the ground through the mobilisation of volunteers to effect changes of behaviour such as to save water, is not insubstantial. Similarly, his interviews online show thousands of views and in particular the video on female education.
For the reason of the type of NGO activities the applicant engages in I am satisfied that he would face a real chance of serious harm because of an imputed political opinion, namely that of holding progressive views that are in conflict with those of the Taliban and other jihadist-Islamist groups.
I find that this is the essential and significant reason that he faces harm.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.
In considering whether the applicant could take reasonable steps to modify his behaviour I considered whether he could choose not to lead his own NGO but instead work for another and to reduce his online presence such that the level of risk he faces would be less than a real chance of serious harm. Such a move, though, would require the applicant to adjust his approach to the challenges his country faces to be in line with other organisations and their leadership.
Were the applicant’s endeavours solely humanitarian, in the sense of providing clean drinking water, as they have been to date, this expectation would not fall foul of s 5J(3). But the applicant has developed a political voice online, he has expressed an interest and has a plan to broaden the activities of his organisation such that he mobilises the people. This is an inherently political action. It is this action that will lead him to face serious harm. As noted above, requiring the applicant to alter political beliefs is not a reasonable step. As such I find that the applicant can’t be expected to modify his behaviour.
I have also considered whether the applicant could relocate to another part of Pakistan such that he would not face a real chance of serious harm or a real risk of significant harm. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.
The applicant’s risk profile rests in large part from his online presence and his advocacy of certain issues that are perceived to be threatening to the worldview of jihadist-Islamists such as the Taliban. Was the applicant to continue in his advocacy, as I have accepted that he will, then his online presence which is already established will only grow further. He has shown an ability to build both an on-the-ground presence in South Waziristan and an online presence over a relatively short period of time.
The online presence broadens the risks he faces from being localised in one part of the country to potentially spreading across the whole country. I note the DFAT information referenced at [71] describes the situation across all of Pakistan. Human rights activists and civil society actors, as the applicant would be perceived in other parts of the country (as he would not be an ‘NGO worker’) would still expose him to risk regardless of his location in Pakistan. I find that the level of risk will grow into the reasonably foreseeable future for the reason of his ability to continue to amplify his voice and reach into the Pakistan community such that he will face a real chance of serious harm regardless of where he was located.
I have also considered whether the applicant can seek state protection. While the security situation has improved, country information indicates that targeted killings by the Taliban against certain groups including those with the same profile of the applicant continue. The nature of targeted killings is such that state security forces cannot provide adequate protection in the context of Pakistan. As such I find that the applicant cannot turn to the state for protection.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Denis Dragovic
Deputy President

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 3031

12 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction