1731049 (Refugee)

1731049 (Refugee) [2021] AATA 5315 (29 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731049
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Nora Lamont
DATE:29 November 2021
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 29 November 2021 at 10:22am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – activities as member and voluntary office holder of mainstream political party fearing harm from Taliban and associates – warnings, threats and extortion attempts – siblings departed home country and parents in hiding – delay in departing after visa granted – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J(1)(a), 36(2)(a), 65
Migration Regulations 1994 (Cth),
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 22 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 4 November 2016 and the delegate refused to grant the visa on 22 November 2017.
Summary of Decision Record
The applicant claimed to fear harm from the Taliban as he was a ‘high profile’ member of the Awami National Party (ANP) and provided an ANP membership card and a letter purporting to be from the ANP which states that he has been an active member of the ANP for the last 11 years in support of this claim. However, the delegate noted country information which indicates that document fraud is endemic in Pakistan, so instead gave more weight to the applicant’s written and oral statements. The delegate was not satisfied with the applicant’s explanation that it was possible for him to undertake the role of [Official position] of ANP whilst hiding from the Taliban at the same time, and found the applicant’s evidence about any ongoing ANP activities in Australia lacking.[1] The delegate was not satisfied that the applicant’s claim of being a member of the ANP to be credible, citing that even if they were to accept this claim, DFAT assesses that ANP members face low risk of violence from political or militant groups based on their political affiliations.[2]
[1] Department File [Number], folio 85.
[2] Pakistan Country Information Report 1 September 2017’, Department of Foreign Affairs and Trade (DFAT), 1 September 2017, CISEDB50AD5515.
The delegate noted that in the applicant’s written statement he made mention that the ANP formed a ‘self-defense committee’ but it was unclear if the applicant was therefore also claiming to be a member of Peace Lashkar – armed tribal groups in the Federally Administered Tribal Areas (FATA) that support the Pakistani authorities in the fight against TTP.[3] The delegate questioned the applicant at interview about this, and the applicant clarified that he was not a member of any other group or organisation apart from the ANP.[4]
[3] ‘Peace Lashkars’, News International, 19 May 2012, CX0D38E8E20898; ‘Security landscape of Pakistan in 2016’ (Pakistan Security Report 2016), Pak Institute for Peace Studies, January 2017, CISEDB50AD63.
[4] Department File [Number], folio 85.
The applicant was granted a visitor visa on 20 April 2016, but the delegate noted that the applicant did not travel to Australia until [June] 2016. The delegate stated that if the applicant was genuinely fearful of being harmed by the Taliban that they would have expected the applicant to depart Pakistan as soon as the visa was granted.[5] When the delegate questioned the applicant in relation to this at interview, the applicant said that he had to wait for the ANP to arrange safe passage for him at the airport to leave the country. The delegate found this explanation to be vague and lacking in detail, and stated that there was no evidence before them to suggest the Taliban was aware the applicant was leaving the country of that they had intention to harm him at the airport, nor any detail in relation to how the ANP protected the applicant. Based on all of the above, the delegate was not satisfied that the applicant held a genuine subjective fear of harm in Pakistan.
[5] Ibid.
The delegate did not find the applicants claims to fear harm from the Taliban in Pakistan because of his involvement in the ANP credible and stated that there was no other information in the application to indicate that there is a real chance of persecution for one or more of the reasons in s5J(1)(a) of the Act. Therefore, the delegate found that the applicant was not a refugee as defined in s5H of the Act and the criterion in s36(2)(a) of the Act was not satisfied for this reason.
Similarly, the delegate found that there was no real chance the applicant would suffer serious harm for one or more of the reasons mentioned in s5J(1)(a) of the Act if he were to return to Pakistan. For the same reasons and in the absence of any other evidence to the contrary, the delegate found that there was no real risk of the applicant facing significant harm, as defined in s36(2A), if he were to return to Pakistan in the foreseeable future.
The Tribunal application
On 8 December 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
The applicant and their representative attended the Tribunal for a hearing on two separate occasions, being 17 September 2021 and 5 October 2021, via video conference before the Member, but were not satisfied with the quality of the interpreters scheduled for those hearings. On both occasions, the Tribunal adjourned the hearing and endeavoured to source a more appropriate interpreter.
On 3 November 2021, the applicant appeared before the current Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages. The applicant was represented at this hearing and in relation to the current review by his registered migration agent.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant claims to be a Pashtun man born in Peshawar Pakistan. He claims that he did not travel to any other country before arriving in Australia. He identifies as being a Sunni Muslim. He claims to speak, read, and write in the English and Urdu languages, as well as speak and read in the Pashto language.
His family consists of his father and mother who currently reside in Pakistan, a brother who resides in Australia, a brother and sister who resides in [Country 1], and a sister who resides in [Country 2]. He lists his previous employment as working with the Awami National Party Member in a voluntary role whilst in Pakistan, as well as working in a [business] assisting with [Job tasks]. He completed up to junior high school in Pakistan.
Country of reference
The applicant provided the Department with a certified copy of his Pakistani passport which was sighted at interview and satisfied the delegate as to his identity.
In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Pakistan and as such his protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country and, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s.36(3).
There are no non-disclosure certificates on the applicant’s file.
Migration History
The applicant was granted a class FA subclass 600 visitor visa on 20 April 2016 and arrived in Australia [in] June 2016. He lodged an application for a protection visa on 4 November 2016 and has remained onshore since his arrival in Australia.
Claims
The applicant provided a Statement of Claims dated 1 July 2016 in support of his claims for protection, which is extracted below[6]:
[6] Department File [Number], folios 58-61.
1.The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or my current circumstances and the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Immigration if required.
2.I am a Pashtun and my family originally come from a village called [Village], at Bajaur of Khyber Pashtunkhwa, Pakistan. My brothers and I have been members of ANP party from my childhood. Om family was responsible for organizing all party activities including meeting and election campaign, liaising with public, party members and party supporter, convening Jirgas, supporting volunteer worker for our party in Bajaur agency and areas around, and other party related work and activities. I hold a [position] in ANP and I closely worked for Sartaj Khan (General Secretary of ANP), Malik Ghulam Mustafa (ANP Sadar) and Sarni Ullah (Naib Sadar) in ANP.
3.l fear that if l was forced to return to Pakistan I would be killed, seriously harmed or persecuted against because I am a prominent and active member of Awami National Party (ANP) who was targeted by Taliban because of my work with ANP and our political opinion in Pakistan, particularly in Pashtun settled area us as Bajaur. Pakistan is a country who support Taliban and armed militia groups in order to enforce their ridiculous anti-Pashtun policies and keep the region unstable and interfere in Afghanistan by utilising Taliban and other armed Islamic militia groups.
4.l fear this harm from the Taliban and authorities including the Taliban particularly Maulana Faqir Mohammad and Maulana Fazelullah armed Taliban militias and possibly other armed Islamic militias and radical Islamic groups in Pashtun areas.
5.I believe if I am returned, I will be harm and punished inhumanly and even killed.
6.I am in Australia with my brother and his family, and I am seeking refuge in Australia being the proper place to make this application.
7.I have been an ANP activist for a long time but in 2008 election our activities intensified as Taliban came to Bajaur and its surroundings. The leader of Taliban Maulana Faqir Mohammed gave me, my brothers and our family a warning saying stop ANP activities in the Bajaur area and join the Taliban. We informed the ANP leadership and sought instructions.
8.The ANP and my family always supported progressive policies for education for both male and female in my area, gender equality and the rule of law in Pashtun areas. We stood against terrorism and Islamic radicalism in Bajaur and Pashtunkhwa. ANP is against sending Taliban to Afghanistan and terrorizing our people. Taliban knew that we will not stop ANP activities, and this is why they threatened us and wanted to kill us.
9.Our people in the area were not happy with Taliban activities leno1izing people and forcing them to join Taliban and fight in Afghanistan and other areas. ANP and elders of our area continually made consultations regarding Taliban activities and stood against Taliban activities and continue to advocate for gender equality and the rule of law in Bajaur. As a result, ANP announced their opposition to Taliban policies for gender inequality and Taliban recruitment from Bajaur and Pashtun areas. We formed self-defense a committee to defend ourselves and our way of life.
10.As a result of our political activities, we received letters from the Taliban threatening our lives and ordering us to stop ANP activities in our area and showing support for Taliban. We couldn't do that as it was against ANP policies and we saw Taliban were destabilizing our region. They continuously terrorized our people. In consultation with party leadership my brothers and l moved to Peshawar but even we did not find peace in Peshawar as they followed us to Peshawar and found us there and continues to threaten us and requested payments as penalties for not support and joining Taliban and working for ANP. We went hiding and avoid presence in public. We were fearful for our lives and sought consultation for our safety and protections. Everyone advised us to leave the country saying once you got in trouble with Taliban you won't be left alone and eventually, they will get you. We already knew that and we already experienced that This is why we tried to get out of the country. Once of brothers managed to leave the county and go the [Country 2] and my other brother have a friend in [Country 1] and he went to seek refuge there. I managed to obtain Australian visa and here I am in Australia.
11.After I left Pakistan and I have been in contact with my brothers and father in Pakistan and they informed me that they received another threatening letter from Taliban. The letter from Taliban threatening again and informing us of their knowledge and intelligence about the continuation of ANP activities and outstanding penalty payments Taliban ordered us to pay. The letter warns us that our activities were against Islamic and against Taliban. Further they order to give up ANP membership and join Taliban. The Letter declares that if we disobey Taliban directions our killing will be legitimate and a task to pursue under the Islamic Sharia.
12.Taliban targeted our party activists and leaders and still continue to target all the ANP members and political workers throughout Pakistan. We were scared and fearful for the safety of our lives and decided to leave Pakistan for safety reasons and the risk to our lives. This is why l applied to come to Australia in order to escape persecution and threats to my life.
13.I am currently in Australia and I have fear of return to my home country Pakistan on grounds of my political opinion and threats to my life and persecution by Taliban in Pakistan. I have been subjected to persecution before as indicated above and multiple serious threats are made against me and ANP leaders in Pakistan and still continues. I need protection as my Iife is in danger if I return to Pakistan. I can't return to Pakistan because of the fear I have and the threats from Taliban and their punishments and killings every day and the security situation in Pakistan.
14.I do not have the residency or right to reside in any other state around the world and I can't be protected or hidden anywhere in Pakistan from as if I return. I tried before and moved to Peshawar, but they found me. I believe l will be killed by Taliban if l return.
15.I can’t trust anyone for my safety and protection in Pakistan. In fact, no one can provide protection against Taliban in Pakistan including the Pakistani authorities as they are supporting Taliban and arm and fund Taliban activities. Pakistan government is a corrupt government and very incapable of providing safety to individual like me and other ANP leaders. This killing of many ANP activists and leaders is a solid proof of this fact. It is now very obvious to the world that Pakistan government including military and ISI are connected to Taliban and radical Islam and terrorism. The killing or hundreds of innocent people in various parts of Pakistan and Afghanistan and the harbouring of Osama bin Laden by Pakistani authorities are just simple examples of their involvement in atrocities and the persecution of innocent people.
16.Therefore. I ask for protection here in Australia and I claim to be a refugee in Australia under the UN Refugee Convention 1951 as l faced persecution in Pakistan and I have fear of return to Pakistan due to threats and serious risks to my Iife, safety and protection. Accordingly, I am in need or protection under the UN Refugee Convention 1951 and its relevant protocols, Australian migration laws for the protection of refugees and the Complimentary Protection laws and legislations. I am in Australian and I believe Australia has obligation for my protection under its international obligation under the convention and its migration laws. I have nowhere else to go to live in peace and safety I am a human being and I have the right to live in peace and security free of persecution of any kind including, inhuman and degrading treatment.
17.l have been in Australia for some time now and l understand the values of Iife in Australia. I respect and value Australian way of life. I solemnly declare that I will be a law obeying individual who treats Australia as his home country I solemnly declare that my presence in Australia will not put Australia and its people in danger. I pledge my loyalty to Australia and its people. I am person of good health and I am willing to undergo health and further character check if required.
18.l kindly request the Australian Government, its people and Department of Immigration and Border Protection lo consider my application seriously and give an opportunity to live in peace and free or persecution and fear for my life. I thank you lor your time and your assistance in processing my application for protection.

The applicant attended an interview before the Department on 3 November 2017. The delegate summarised the applicant’s claims after that interview in the Decision Record, which is extracted below:[7]
·     He is a Pashtun from Bajaur Agency. In 2006, he decided to join the Awami National Party (ANP) because it is a Pashtun party, and his grandfather and father were involved in ANP activities in the past.
·     He has been an ANP activist for a long time. His activities intensified during the 2008 election as Taliban came to Bajaur and its surroundings. ANP stood against Taliban activities and advocated for gender equality and the rule of law in Bajaur. The leader of the Taliban gave him and his family a warning to stop ANP activities in the Bajaur area and to join the Taliban instead.
·     In consultation with ANP leadership, he and his brothers moved to Peshawar. The Taliban found them and continued to threaten. The Taliban also requested payment of money as punishment for not supporting them.
·     He and his brothers were fearful for their lives. Everyone advised them to leave the country. One of his brothers went to [Country 2]. Another brother went to [Country 1]. He managed to obtain an Australian visa and travelled to Australia.
·     After he left Pakistan, he learnt that his family received another threatening letter from the Taliban. Taliban had targeted and continues to target ANP activists and leaders. Pakistan is a country that supports Taliban and armed militia groups. If he returns to Pakistan, he would be killed, seriously harmed or persecuted because of his political opinions.
Tribunal Hearing
[7] Department File [Number], folio 87.
At the Tribunal hearing the applicant said he had been diagnosed with COVID but wished to proceed with the hearing. After several attempts to find an interpreter from Pakistan the interpreter was appropriate, and the applicant did not have any issues during the hearing.
He said his parents are still in Pakistan and he has a sister in [Country 2] and one in [Country 1]. He has a brother in Australia. He told the Tribunal he does not currently know the whereabouts of his parents as they are in hiding and move a lot.
We spoke of his membership with the Awami National Party (ANP) and the sorts of things he did with the party. He said he went to rallies with his brother. He said the family had always been involved. In 2008 his activities intensified, and the leader of the Taliban gave his family a warning. At that time his brother and himself left their home area out of fear of the Taliban and moved to Peshawar.
In Peshawar he was made [Office holder] and people in the ANP were supporting them. He had a job at a [company] as well as his ANP work. He said he spent most of his time in hiding and then in 2016 the family received another letter from the Taliban. He stated his party work consisted of people’s issues, disputes, policing issues and district issues. There were lots of issues people would disappear or be kidnapped.
The applicant spoke of his work with the ANP and said he helped people deal with issues such as policing issues, disputes and district issues. He said there were a lot of issues to deal with as people were kidnapped and disappeared all the time.
The applicant said that once the Taliban targets someone they don’t let go, and they are everywhere. The applicant said in 2016 it was the worst of times as there were a lot of bombings and killings. He said during this time and during his travel to Australia the party was supportive of him and they have stayed in contact with the ANP and their connections.
The Tribunal asked if his brother was still in [Country 1] and he said he has no contact with him. He said that the situation in Pakistan and the Taliban has gotten worse since the Taliban took over Afghanistan.
The Tribunal asked the applicant if he knew what was happening in 2021 with the Taliban in Peshawar and his home area. He stated that they have gotten a lot worse now and they have more power. The Tribunal notes the following suicide bombing in Peshawar in 2018 against the ANP: [8]
On 10 July 2018, a suicide bombing occurred at the Awami National Party's workers rally in Yaka Toot area of Peshawar, Khyber Pakhtunkhwa, Pakistan. Haroon Bilour, ANP's candidate for PK-78 and prime target of the attack, was killed as a result of the bombing. The attack left 22 people dead and wounded 75 others. Tehreek-i-Taliban Pakistan claimed responsibility for the attack.
[8] >
The Tribunal asked the applicant what he thought would happen to him if he was returned to Pakistan. He stated that they would kill him. The Tribunal asked if he thought with the passage of time, they would forget about him and move on. The applicant said the Taliban is not like that and they will never move on. He said there is no place that he would be safe.
The Tribunal asked if he was to return would he resume political activities and the applicant said he would as he is still a member of the party. The applicant said his father continued to get threats and he is in hiding and there is no where he can return to.
The Tribunal spoke to the applicant about the assassination of Sartaj Khan who was the President of the ANP in Peshawar and was murdered in 2019. [9] He was also young as the applicant is and was when he was serving in the ANP leadership in Peshawar.
Country Information
[9] >
DFAT Reports that have always opposed the Taliban and they have suffered violence because of this. [10]
The Awami National Party (ANP), which has a heavy Pashtun support base, is strongly anti-Taliban and also faced considerable electoral violence in 2018, including during the 2018 polls (See Awami National Party (ANP).
Awami National Party (ANP)
ANP is a Pashtun nationalist, secular political party that promotes opposition to the TTP, with headquarters in Peshawar, Khyber Pakhtunkhwa. ANP’s major support bases are in Khyber Pakhtunkhwa and Balochistan. ANP formed in 1986 as a successor to the National Awami Party and served in several national and provincial coalition governments in the 1990s. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government with the Pakistan People’s Party.
Like other parties in Pakistan, the ANP can be affected by politically motivated violence. It is also the target of violence from militant groups. The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and counter-insurgency operations in the former FATA and Khyber Pakhtunkhwa, and work to improve the Pakistan-Afghanistan bilateral relationship. ANP claims to have lost 1000 members to acts of terrorism. However, restrictions on media reporting in the former FATA and Khyber Pakhtunkhwa (see Media) may mean some incidents—particularly those involving low-level officials—are not reported.
In July 2018, a suicide bomb attack at an election rally in Peshawar wounded at least 69, and killed at least 20 people, including prominent local ANP politician Haroon Bilour. Bilour was a Provincial Assembly candidate for the July 25 2018 general elections. His father, Bashir Bilour, a prominent ANP politician, was also killed by a suicide bomber in 2012. The ANP was the target of TTP attacks during lead up to the May 2013 elections. Many of the party’s leading candidates restricted their electioneering to their houses or via Skype. On 11 April 2016, militants killed an ANP leader in Swat, Khyber Pakhtunkhwa.
In 2018, ANP Pashtuns were also involved in in large-scale demonstrations coordinated by PTM (see Pashtuns) seeking protection against state oppression and human rights abuses against Pashtuns in the tribal regions of Pakistan.
DFAT assesses that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship (see assessments under Pashtuns and Afghan Refugees).
[10] DFAT Country Information Report Pakistan 20 February 2019
Country information highlights the unstable nature of politics and political parties in Pakistan and the violence that members of the ANP face for their political opinion. This reinforces the applicant’s contention that he will be harmed by the Taliban if he returns to Pakistan. The murder of Sartaj Khan the ANP President for the Peshawar District in 2019 is also of significant concern given the applicant’s claims for protection.
Further, the ANP has always been anti-Taliban and as such the applicant’s past experience and fears for the future are clear given the Taliban is strong in his home area and bolstered now by the Taliban take-over of Afghanistan.
Conclusion
The Tribunal accepts the applicant’s claims to have been an active member of the Awami National Party (ANP) and accepts that he was threatened by the Taliban on more than one occasion. Further, the Tribunal accepts that the applicant’s family has been threatened and the political situation in Peshawar for ANP members is precarious.
Given that the Tribunal accepts the applicant’s claims of having been an active member of the ANP and [Office holder] for the district further country information shows that the applicant’s claims of fear of harm are well-founded not only from the Taliban but their associates. As this article points out: [11]
PESHAWAR: Some of the prominent leaders and elected representatives of the Awami National Party have come under attack in the provincial capital during the last few years and the latest to lose his life was the party’s city chapter president Sartaj Khan. The attacks have made it difficult for the party leadership to move freely even during the election campaigns. Though leaders of various political
parties have come under bomb attacks, target killings and suicide bombings in Peshawar, the number of ANP workers and leaders being targeted remained higher. They included two members from the prominent Bilour family — Bashir Ahmad Bilour and his son Haroon Bashir Bilour. Both lost their lives in suicide attacks. The last such incident was the target-killing of ANP city district president and district council member, Sartaj Khan, on Saturday.
[11] >
Having received oral and written evidence from the applicant the Tribunal is satisfied the applicant was and is a member of the ANP and that he would be targeted for his political opinion on return to Pakistan. The country information backs up the applicant’s claims in this regard.
Having considered the applicant’s claims individually and cumulatively, the Tribunal accepts that the applicant fears being persecuted for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, and that there is a real chance that the applicant will suffer persecution for one or more of the five reasons mentioned in s.5J(1)(a) if he were to return to Pakistan, now or in the foreseeable future. Specifically, the Tribunal finds that the applicant’s political opinion means he would face a real chance of serious harm from the Taliban and their associates. The Tribunal is satisfied that this would be the essential and significant reason for the persecution and involves serious harm and systematic and discriminatory conduct.
The Tribunal accepts that this chance of harm exists throughout Pakistan, such that relocation would not mitigate it, Moreover, it is not satisfied that there are effective protection measures available to the applicant to avoid this harm.
Having concluded that the applicant meets the refugee criterion in s.36(2)(a), it is unnecessary for the Tribunal to consider the alternative criterion in s.36(2)(aa).
For the reasons given above, the Tribunal is 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.
Nora Lamont
Member

Document List – 1731049 – [Surname]
Department File – [Number]
1. Notification of refusal of application for a Protection (subclass 866) visa – dated 22/11/2017
2. Protection visa decision record – dated 22/11/2017
3. PV Interview recording on CD – 3/11/2017
4. Newspaper articles submitted by the applicant’s representative at the PV interview:
5. Letter from Representative requesting changes to Bridging visa conditions – dated 13/12/2016
6. Photocopy of applicant’s Pakistani passport – expiry [2019]
7. Copy of applicant’s identity card
8. Statement of Claim – dated 1/7/2016
9. Form 80 Personal particulars for assessment including character assessment – dated 3/11/2016
10. Form 866C Application for a protection visa – dated 3/11/2016
11. Form 866B Persons included in this application – dated 3/11/2016
12. Form 956 advice by a migration agent – dated 3/11/2016
13. Covering letter from Representative, PV application attached – dated 3/11/2016
14. Notification of invalid application for a Protection (subclass 866) visa – dated 24/10/2016
15. Covering letter from Representative, PV application attached – dated 4/7/2016
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.
…

[2021] AATA 5315

29 November 2021

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Immigration

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