1800173 (Refugee)

1800173 (Refugee) [2019] AATA 2122 (5 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1800173
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Anne Grant
DATE:5 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 February 2019 at 9:34am
CATCHWORDS

REFUGEE – protection visa – Pakistan – particular social group – westernised young male – political opinion – mental health issues – fear of terrorism – deterioration in mental health not characterised as inflicted – pervasiveness of western influence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33I
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 on 20 December 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 13 February 2017. The delegate refused to grant the visa on the basis that he did not find the applicant’s claims to be credible.
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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
The applicant’s claims and evidence
In his written application for protection, the applicant claimed, in summary:
·     He left Pakistan as a student to have a better life away from Pakistan because the life in Pakistan is dangerous and hectic due to terrorism and gangs and he has no future in his country.
·     He had a number of threats from Lyari gang as he had his assets in Attock and they are after them. He refused to vacate it and as a result he got threats from them.   The Lyari gang can kill him as they want his property and are angry that he has revolted against them.   He left for Australia saving his life by applying as a student.
·     He moved but the gangs can kill him. The Lyari gang members are still active and looking for him. They are well known for target killings and bombings.
·     When he was in Pakistan he tried to act against Taliban terrorist groups and Lyari gang members when they tried to take his property but was always ignored by the local police and political leaders as they were afraid of them.
·     The authorities won’t protect him as they are corrupted and live for criminals and politicians.
·     He will be the target of terrorist groups in Pakistan with constant bombings and threats everywhere. Terrorism is spread all over and any citizen can be targeted and killed with guns, missiles.
In a statutory declaration signed on 30 November 2017, the applicant referred to an incident in [City 1, Australia] where ‘he felt intimidated, threatened and treated in a manner and to a point where he became worried about his life’. He also said that he had to go back to Pakistan in 2014 to see his family as he had not seen them in a long time and his grandmother was very ill. When he was back there, he said he was treated as a suspicious character by authorities. At hearing, the applicant clarified that the information in this statutory declaration about his time in [City 1] referred to the period where he was very unwell and believed that he was ‘being watched’ and also that when he was in the mental health ward, he felt the nurses there were abusive. The reference to him returning and being treated as an outsider is part of explaining his fear that ‘someone unknown’ here in Australia was watching him- but he no longer feels that way.
The applicant, who is currently in immigration detention, attended a hearing on 4 December 2018. The hearing was conducted in English without the assistance of an interpreter, and the applicant was noted to have an excellent understanding and fluency in English. His representative did not attend the hearing and the applicant said that he had not been able to get in touch with him, but wanted to proceed regardless as the stress of the hearing was impacting on him. I agreed that, if he wished, we could proceed and at the end of the hearing I could give him some time to discuss the matter and submit additional material through his representative or on his own if necessary. At the conclusion of the hearing, the applicant asked for two weeks to send in his medical information (to verify his mental health condition) and perhaps to enable his representative to make a further submission. I agreed.
Subsequent to the hearing, no additional submissions were received from the applicant’s representative. On 17 December 2018, the applicant submitted the following documents for my consideration:
·Letter dated 4 October 2017 from [a medical facility], [City 1] confirming that the applicant was the subject of a [mental health treatment order] [in] September 2017.
·[A treatment order] under [State 1 legislation], dated [in] September 2017. The reasons for making [the order] include a description that the applicant was [suffering from various mental health issues].
The applicant started the hearing by advising me that when he looked at the claims lodged by his legal representative, and referred to by the delegate, he found them to be incorrect. He explained that, when making his claim, he told the representative his situation, but his representative seems to have written completely different information in the application for protection. He said he spoke with the representative generally about gangs and violence, and about demands and threats made by terrorists, but did not tell him that those things had happened to him before he came to Australia. He was (and still is) definitely afraid of being caught in a terrorist act of violence in Pakistan, because those things are happening constantly.
The applicant’s evidence at hearing was coherent and credible. He provided ample detail about his life in Pakistan prior to coming to Australia, and also about difficulties he has encountered both in Australia since being here and also in Pakistan when he returned there in 2014. The applicant stated categorically at hearing that he had not ever had a dispute with a Lyari Gang or other terrorist about land or any other issue of property prior to leaving Pakistan in 2007. At the time he left Pakistan, he was a young man who had just finished school (his schooling was delayed due to him moving from several boardingschools over his educational life). His family has always lived in [City 2], Attock Tehsil. They still live there. His father has some land there but that is farmed by others and his father runs [a] business. The applicant has [siblings] all of whom are in Pakistan. However his mother died when he was [age] and when his father later remarried, he was sent away to boardingschool from a very young age and so he has not been especially close to his father. He believes his mental health issues evolved from and are related to post traumatic stress disorder associated with his mother’s death, which was never addressed.
In 2014 he returned to Pakistan to see his family, as he had been gone (and living in Australia) since 2007. He returned to [City 2] and found that things were different there. He was no longer recognised. On two occasions, he was questioned whilst running a business errand for his father, where in the past, that had never happened. This was at a military check point. They asked who he was, what his purpose was in travelling, things like that. Once he told them, he had no difficulty, but he found it disquieting that they even asked him to stop. After he had been there for a week or two, he went for a ride on his bike down to one of the properties owned by his father about ten minutes away, just to get some air and exercise, as he had often done when he was younger. Four or five men there stopped him. He did not know them, but they said they knew who he was. Two were older men in their 50’s and the others were young men. They had beards. They started questioning him, saying crazy things and abusing him. They said ‘what are you doing here’ and ‘don’t worry, we know why you are here’. They asked if he had ‘changed his religion’. These men attacked him and punched, slapped and kicked him. He fell backwards onto the soft ground (it was muddy) so he wasn’t badly injured except for a couple of bruises. Then they told him to go away. He did not tell his family about this, because he and his father were not really getting along at that time. The applicant gave evidence that his father was not happy that he had failed to obtain permanent residency in Australia, and that he had not settled down in employment or married. He and his father had never had a close bond, but it was particularly strained at that time. He thought, too, that going to the police would just make him more vulnerable, make him more of a target to those men. He later saw them again in the village and he became more and more scared in the time he remained in Pakistan. He felt he was being watched. He was supposed to stay for a cousin’s wedding, but he decided instead to return to Australia.
I asked the applicant if he had experienced mental health problems in Pakistan before coming to Australia. He said that he had. He described a difficult relationship with his father due to his being moved to boardingschool for his entire primary and secondary education. He described feeling stressed, anxious and depressed in Pakistan over his life. However, he had not ever been treated or diagnosed with a mental illness in Pakistan. Since he has been in Australia, he has experienced one period of severe mental illness, including a stay in[City 1] hospital as an involuntary patient. He had travelled there to find work but described an emotional and tumultuous experience of homelessness, poverty and apparent psychosis whilst there. He ultimately called his father who sent [money] so he could get back to [City 3, Australia] where he had friends and was more comfortable. Since then he has received and continues to receive treatment for his mental illness.
The applicant acknowledged at hearing that treatment for mental illness is available in Pakistan, but noted that it is expensive, and also that mental illness is not properly acknowledged or discussed there. Anxiety is seen as ‘just a part of life’ because of the general security situation and he would have to spend significant money (‘thousands of dollars’) on getting treatment there. He believes that his father would help him until he got established, but he could not be sure. He was concerned that he might not earn enough in employment to meet his medical needs.
The applicant said that he fears that, on returning to Pakistan, he will be viewed as an ‘outsider’ with western views, and seen as being opposed to the Taliban’s ideological views. He is, in fact, opposed to the Taliban and other extremist views. Over his lifetime, in [City 2], Sunni and Shia families lived together without problem - but now there are attacks and killings by extremists in his home area. And if you stick up for those they target, you then are also considered an infidel and become a target.
The applicant said that the various articles provided with his application for protection were prepared by his legal representative, including the lengthy article of 93 pages about the political and violent history of Pakistan and many extremist groups. He believes that his legal representative authored that article but he is not sure. He said that none of those articles related to his personal experiences but were provided as information about incidents in and around Attock, [City 2] and Pakistan generally.
I discussed with the applicant my assessment of the country information, including from DFAT, that Punjab is generally considered less affected by extremist violence than other parts of the country and that the targets of extremist violence throughout Pakistan were generally politicians, government institutions, religious minorities and police and military. The applicant agreed with this proposition and that he did not have a profile in that group. However, he expressed his concern that if his opposition to Taliban and extremists became known, he might be targeted at some point in the future. He also expressed concern, because he already suffers from [mental health conditions], even in a safe place in Australia and with mental health treatment. He fears that returning to such a fraught and hostile environment as Pakistan will lead to deterioration of his mental health, making him vulnerable to becoming more unwell and increasing the risk of him coming to the attention of extremists and being targeted as a threat to extremist ideology.
The applicant gave evidence that his extended family [all] still live in and around [City 2]. They have not had any trouble with extremists. There had been a lot of displaced people moving to the area and he was aware that this had caused some ethnic tensions but his own family had been largely unaffected. Attock Tehsil has experienced politically motivated and sectarian attacks by militants over many years. They are not common, but the applicant’s sense is that they are becoming more common even in [City 2].
The applicant said that the situation of general violence is an issue throughout Pakistan. The extremists are everywhere and particularly in the big cities. He did not think it would be safe for him anywhere. The potential for him to be caught in an unpredictable act of extremist violence exists throughout the country.
The applicant has worked in [various industries] in Australia.
Consideration
Based on the applicant’s evidence at hearing, which I accept as honest and credible, I reject those of his written claims which suggest that the applicant ever experienced conflict, threats or was at any risk from any group in Pakistan, including extremists and gangs, prior to coming to Australia in 2007 - as having been fabricated and untrue. I find that he was not threatened by a gang (Lyari or otherwise) or by extremists over his refusal to surrender property to them either before he left Pakistan or at any stage. I find that no Lyari gang is ‘looking for him’ and that he is not of any interest to a gang in Pakistan as a consequence of previous disputes over property. Having met and assessed the applicant, I found his evidence about the claims having been drafted by an agent and not to reflect his true situation to be credible. I accept that he told his story (and his fears) to the legal representative and signed (and lodged) the application without being aware that it contained inaccurate claims.
I find that the applicant came to Australia in 2007 to further his education, in the hope of achieving permanent residence and for ‘a better life’ than he could have in Pakistan. I accept that he was (and remains) troubled at that time by the general security and terrorist situation in Pakistan. I accept that he returned to Pakistan to see family in 2014, and that whilst there, he was required by local military checkpoint personnel to stop and disclose his identity and intentions in travelling – which had never happened to him prior to leaving in 2007. He found this unsettling. I also accept that he encountered ‘outsiders’ in his home village who appeared to be and presented as extremist Taliban members and who quizzed him about his identity, his religion and his intentions in visiting the area. I accept that they assaulted him and that he became convinced they were ‘watching him’ because he was suspected as an ‘outsider’. I accept that the applicant returned to Australia rather than stay longer, as he felt unsafe.
I accept that the applicant has a genuine fear of being targeted by extremists throughout Pakistan (including local extremists in [City 2]) because he does not support their extremist views, or will be perceived as having Westernised views. He also fears being caught in acts of extremist violence which might not be specifically targeting him. He is afraid that his mental health will deteriorate if he is required to live in such a fraught and unstable security environment as exists in Pakistan. He is also concerned that he might not be able to access and afford mental health treatment in Pakistan.

The applicant fears being killed or wounded in an extremist attack, and also that he will suffer a severe deterioration in his mental health. The harm he fears is serious harm as required by s.5J(1), both individually and cumulatively. In relation to the fear of being killed or wounded, the harm he fears is targeted and systematic as required by s. 5J(1), because he fears he will be singled out and that he will be targeted due to his ‘westernisation’ and his opposition to Taliban or other extremist ideology. I do not consider that the feared deterioration in his mental health condition triggered by moving to an unsafe country environment is properly able to be characterised as a harm which is ‘targeted and systematic’, as it would not be ‘inflicted’ on him by anyone and mental health treatment would not be refused to him for any of the reasons in s.5J(1)(a). It does not meet the requirement in s.5J(1).
The applicant fears being targeted because of a perception that he opposes extremist ideology. I accept that in fact, he does oppose that ideology. He also fears that because he has lived in Australia for so many years, he will be seen as having ‘western’ views and as an outsider who has strayed from ‘traditional’ Sunni Muslim ideals. The reasons for the harm he fears are his political opinion or because of his membership of the particular social group of persons who have become westernised or hold western views. The essential and significant reasons for the harm he fears are therefore described in s.5J(1).
I turn to consider whether the applicant has a well founded fear of harm for the reasons he claims. I have rejected any claims about his being targeted and under threat from members of a ‘Lyari Gang’ or any other extremists due to an ‘old’ property dispute or previous experience of being targeted. I have rejected any claim that such people are looking for or have any interest in the applicant. Those claims will not be considered further.
In its’ Country Information Report Pakistan (1 September 2017) DFAT includes the following information:
SECURITY SITUATION
2.30    Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The security situation varies across the country. While militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. Sindh province is also relatively free from major terrorist activity outside of Karachi, although rural Sindh has a high incidence of crime and kidnapping and some large-scale terrorist attacks have occurred in rural Sindh. Gilgit-Baltistan tends to experience less sectarian violence, in part because of its relatively sparse population and mountainous terrain, and its status as the only Shi’a-majority area in Pakistan. In contrast, Balochistan, Khyber Pakhtunkhwa and the FATA experience relatively higher rates of militant and sectarian violence.
2.31    In June 2014, the Pakistan Armed Forces launched Operation Zarb-e-Azb, a major offensive against terrorist groups across the country. Operation Zarb-e-Azb initially targeted terrorist groups in North Waziristan in the FATA , including the Tehreek-e Taliban Pakistan (the Pakistani Taliban or TTP), and gradually spread to other parts of FATA and Khyber Pakhtunkhwa province, with smaller, intelligence-based operations taking place across the country. The term Zarb-e-Azb has also expanded to refer to operations by the army and the Rangers, a paramilitary security force, in Balochistan and Karachi against various other terrorist, separatist and criminal groups. The operation reportedly resulted in the deaths of 3,500 suspected terrorists and 490 military personnel during its first two years.
2.33    Operation Zarb-e-Azb and the NAP are credited with a significant reduction in the number of violent attacks in Pakistan. According to the South Asian Terrorism Portal, more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013. Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians. More than 20,000 civilians have died in terrorism-related violence since 2007. These statistics largely derive from news reports, and may understate the number of casualties.
2.34    The government and military operations have disrupted the activities of militant groups and thousands of militants have been killed, including the high-profile leader of Lashkar-e Jhangvi (LeJ), Malik Ishaq, in 2015. Military courts have tried and convicted thousands of people with links to terrorist organisations. However, militant groups remain active across Pakistan, despite their more limited access to former safe-havens in Khyber Pakhtunkhwa and North Waziristan. These groups continue to attack government and sectarian targets. Groups such as the TTP have splintered into several offshoot organisations; while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats.
At the time of the delegate’s decision, country information reflected a hopeful improvement in the security situation across Pakistan generally due to the anti-terrorist operations over 2014 and 2015. The Tribunal notes the applicant’s submissions that despite some improvement in country wide security, extremist attacks have nonetheless continue to take place throughout the country. Indeed, even DFAT in its Country report of 1 September 2017 noted that Several interlocutors in Pakistan told DFAT that the underlying conditions for militancy – particularly weak judicial and law enforcement institutions and economic under-development – have not been addressed, and speculated that violence would likely increase again after a period of relative calm. At 2.40, DFAT notes that:
Militant groups such as Tehreek-e Taliban Pakistan (TTP) and Lashkar-e Jhangvi (LeJ) continue to operate across Pakistan despite government and military operations disrupting their activities. The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into a number of separate groups following the beginning of the crackdown. In early 2017, a number of these splinter groups re-joined the TTP, however, or pledged support for its leader, Mullah Fazlullah. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned.
I note that the applicant is a Sunni Muslim however he is concerned that he will be targeted because he is seen as opposing the views of extremists, including their fundamentalist ideology. DFAT also includes the following assessment in relation to Sectarian violence:
3.42    Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools. Shi’a continue to face a threat from anti-Shi’a militant groups, including Lashkar-e Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP, also known as Ahl-e-Sunnat-Wal-Jamaat or ASWJ), and various factions of the Tehreek-e-Taliban Pakistan (the Pakistani Taliban, or TTP). Sectarian violence has reduced significantly in recent years, particularly since Operation Zarb-e-Azb (and its successor, Operation Radd ul Fasaad) and the NAP were implemented. According to the Center for Research and Security Studies (CRSS), fatalities from sectarian violence fell by 20 per cent in 2016, following a 28 per cent drop in 2015 and a 32 per cent drop in 2014.
34.3.43    While sectarian violence affects people of all religions and sects, Shi’a have traditionally represented a higher proportion of the casualties. According to the CRSS, Shi’a made up around 60 per cent of the people killed in sectarian violence in Pakistan in 2015, despite making up only around 15-20 per cent of Pakistan’s population. In 2016, however, Shi’a made up fewer than 15 per cent of those killed in sectarian violence. The two biggest attacks of the year—an attack targeting Christians in Lahore on Easter Sunday and an attack on a Sufi Shrine in Balochistan— did not target Shi’a. This fact, combined with a significant decrease in overall sectarian violence across the country, meant that Shi’a comprised a relatively small proportion of the total victims of sectarian violence. Around 820 Shi’a have been killed in sectarian violence since the beginning of 2013, out of a total Pakistani Shi’a population of about 30 million people.
35.3.44    LeJ and its sub-groups such as LeJ al-Alami tend to be the main perpetrators of violence against Shi’a in Pakistan. The LeJ is a collection of loosely coordinated cells linked to other militant groups such as the TTP and, more recently, Islamic State. Originally based in Punjab province as an offshoot of Sipah-e-Sahaba Pakistan (SSP), the LeJ’s reported objective is to establish an Islamist Sunni state in Pakistan. It also seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.
3.45    The LeJ has claimed a number of attacks on the Shi’a community in recent years, particularly Hazaras in Quetta and other Shi’a groups in the Federally Administered Tribal Areas (FATA) and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a’. Several prominent LeJ militants were killed in 2015, including the group’s leader Malik Ishaq. LeJ’s activities have been somewhat curtailed since the beginning of Operation Zarb-e-Azb and the NAP, although the group claimed to be involved (directly or indirectly) in several attacks in late 2016 and early 2017. These attacks include: an attack on a Sufi Shrine in Balochistan which killed 52 people in November 2016; an attack on a police training academy in Quetta, Balochistan, which killed 61 people in October 2016; an attack on a Shi’a religious gathering in Karachi which killed six people on 30 October 2016; and an attack on a market in Shi’a-dominated Parachinar in June 2017, which killed 72 people. Several of these attacks were claimed by LeJ al-Alami in conjunction with Islamic State. The Pakistan government designated the LeJ as a terrorist organisation in 2001.
3.46    Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location (see assessments of Sectarian Violence by province, below) and for members of specific groups (see Hazaras and Turis, above). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure.
The applicant also fears being caught in other acts of extremist violence in Pakistan, as a bystander. I have identified a number of reported terrorist incidents in Pakistan during 2018.   The majority of attacks during 2018 appear to have been politically targeted and also directed at police and security forces.     Additionally, I note that in the context of general violence and struggling security forces, unreported incidents of abductions and violence may not be reported in the media (particularly in large cities), so these are unlikely to be the only terrorist incidents (sectarian or otherwise) which occurred during 2018:
·     1 January - Civilians and security officials were injured in two bomb attacks in Chaman, Balochistan.
·     2 January - Frontier Corps soldiers were injured in an explosion in Quetta.
·     9 January - Multiple casualties from a suicide bomb in Quetta.
·     16 January - Gunmen killed a police constable in Quetta.
·     16 January - A suicide bomber on a motorcycle in Karachi, aided by gunmen, targeted a senior officer known for leading raids on militant hideouts. The officer survived, and his guards killed two of the gunmen.
·     18 January - Gunmen killed a mother and daughter working on polio vaccination in Quetta. January - A bomb explosion in the Upper Kurram Agency killed multiple members of the same family. February - Eleven soldiers of Pakistan Army were killed from a suicide attack near a military camp in Khyber-Pakhtunkhwa.
·     5 February - Multiple casualties from a bomb that targeted a pro-government leader in Panjgur, Balochistan.
·     7 February - Multiple casualties from a remote-controlled explosion in Bajaur Agency.
·     5 February - Gunmen attacked two Chinese nationals in Karachi.
·     5 February - Multiple casualties when a vehicle was attacked in North Waziristan.
·     14 February - Tehreek-i-Taliban gunmen killed paramilitary soldiers in Quetta.
·     16 February - A leading tribal elder and chief of a local peace committee was killed by a bomb in Bajaur Agency.
·     21 February - A police checkpoint in Peshawar was attacked by people with hand grenades.
·     23 February - The car of a senior government official on Peshawar’s Ring Road was targeted with a bomb.
·     28 February - Paramilitary soldiers were killed in a suicide bombing outside Quetta. Elsewhere in Quetta, gunmen killed two guards in a senior police officer's convoy.
·     8 March - Two Shia Muslims were shot in Quetta:
·     14 March - Multiple casualties in a suicide bombing at a police checkpoint outside Lahore.
·     17 March - Terrorists killed polio workers and a paramilitary Frontier Corps soldier in Mohmand Agency.
·     24 March - A hand grenade thrown at a spring festival in Dera Ismail Khan injured dozens of people.
·     30 March - An IED killed policemen in the district police officer's convoy in Dera Ismail Khan.
·     31 March - Gunfire during an operation in Balochistan resulted in the death of one soldier and one terrorist.
·     1 April - Gunmen attacked a vehicle in Quetta, killing a member of the Shia Hazara community.
·     9 April - A suicide bomber injured multiple people near a Balochistan Frontier Corps vehicle in Quetta.
·     15 April - Christians were shot and killed outside a church in Quetta.
·     18 April - A shopkeeper in the Shia Hazara community was shot and killed in Quetta.
·     22 April - Gunmen on a motorcycle killed Shiites outside Quetta.
·     24 April - Three suicide bombings killed multiple policemen in Quetta. April - Multiple people were killed by a hand grenade attack at a wedding in North Waziristan.
·     28 April - Two shopkeepers in the Hazara community were shot and killed in Quetta.
·     2 May - A roadside bomb exploded in Safi Tehsil.
·     3 May - A bomb injured three security personnel in Jani Khel.
·     3 May - A vehicle carrying civilian employees of an atomic agency PAEC was attacked in Attock. There were multiple casualties.
·     4 May - Six labourers of Punjabi descent were shot dead in Balochistan.
·     6 May - Ahsan Iqbal, Interior Minister, was shot in the shoulder while getting out of his car to attend a political meeting in Punjab province.
·     11 May - A bomb targeted a police patrol at a bus stop in Bannu.
·     14 May - A Shiite religious scholar was shot by Lashkar-e-Jhangvi terrorists in Khyber Pakhtunkhwa.
·     27 May - Two Policemen and two militants were killed when unidentified militants opened fire on Policemen at Sarki Road in Quetta, Balochistan.
·     10 July - A suicide bombing at a political rally left 20 people dead and 63 others wounded in Peshawar.
·     13 July - 5 citizens were killed and 10 were injured after a planted bomb exploded near the car of JUI-F candidate Akram Khan Durrani in Bannu.
·     13 July - A blast killed at least 149 including BAP candidate for Balochistan Assembly, Nawabzada Siraj Raisani and injured one hundred twenty.
·     22 July - A suicide bombing targeting Ikramullah Gandapur left 3 people dead and 3 wounded in Kulachi, Dera Ismail Khan District.
·     24 July - At least three security personnel and a civilian were martyred while 13 others sustained injuries after a military convoy on election duty came under attack in Turbat.
·     25 July - A bomb blast killed 31 people during polling in the polling station Quetta.
·     2 August - 13 schools were attacked and set on fire by militants in villages of the Diamer district of the administrative territory of Gilgit-Baltistan in Pakistan.
·     4 August - 12 government girls' schools were torched in the Darel tehsil of the Diamer District in Gilgit-Baltistan in Pakistan.
·     5 August 2018 In another incident, one policeman was killed and another wounded in a gun battle in the Tangir tehsil of the same district. A militant was also killed in the incident.
·     31 October 2018: five labourers killed and several injured in Gwadar, Balochistan
·     2 November 2018 Pakistani religious scholar assassinated in Rawalpindi:
·     18 November 2018: Rocket attack kills two soldiers in North Waziristan
·     22 November 2018: IED blast in Bajaur, Khyber Pakhtunkhwa kills two.
·     14 December 2018: Six security personnel killed as convoy attacked in Turbat: type="1">
I am satisfied that the country information reflects that whilst a reduction in extremist attacks has been achieved due to various government anti-terror initiatives throughout Pakistan over the years leading up to 2016, the country is still subject to unpredictable attacks on government, civilian, sectarian and military targets.   Attock Tehsil has also been affected by such attacks. The general security situation continues to be unstable as various extremist groups vie for stronger footholds in larger urban areas, and those extremist groups have proven continuously capable of targeted and large scale attacks against various targets over recent years. In this security context, whilst some parts of the country are less prone to extremist attack, I consider that the risk of being targeted by extremists to persons who have a security, military or government political profile, or hold a profile within any sectarian minority, is reasonably considered to be greater than a remote risk in any part of the country where extremists are active or have a presence.
The applicant claims that, having spent time in Australia and returning from a Western country, he will be perceived as having views opposed by extremists, and will be targeted for that reason. At hearing, I discussed with him DFAT’s assessment that western influences are felt throughout Pakistan and also that it is common for young men to travel overseas for educational purposes and thus be exposed to ‘western ideas’, without it making them necessarily a ‘target’. The applicant agreed, but remained concerned that as an ‘effective stranger’ in his home town, he might be singled out and targeted for that reason. In its 1 September 2017 report, DFAT includes the following assessment:
Western influences
3.139    Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship), and western-branded retail chains operate throughout the country. Both Urdu and English are official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives.
3.140    DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.
I accept that the applicant genuinely holds views that are strongly opposed to the anti-western and fundamentalist views of extremist groups in Pakistan.   I accept that the applicant was confronted by apparent extremists in [City 2] in 2014, when he returned home for a visit. I consider that the reason for them attacking him was because he was, to them, a stranger. I accept that the applicant’s experience on returning to Pakistan in 2014 was unsettling for him. He was beaten by strangers in his home town who appear to have targeted him because they were immediately suspicious of him because he had returned after a long period overseas.    There was, however, only one instance of that occurring, and he was not seriously injured physically in that attack. I do not consider that one incident to have caused the applicant serious harm. The applicant gave evidence that his entire family lives in and around [City 2] and that they have not encountered ongoing or historical problems with extremists. The applicant acknowledged that being stopped by the military checkpoint was confronting but he did not think he was targeted for any reason apart from his not being recognised by the guards because he had been away for so long. He agreed that once he resided in the town again, that would be quickly rectified and he did not see any reason why he would be targeted for attention by the military. I consider that same argument is appropriate when considering his return and the impact it will have in the local community, including extremists. If he faces similar encounters as he did when he returned in 2014, I am satisfied that they will be short lived and of a similar nature and I do not consider it reasonably foreseeable that he will suffer serious harm simply as a returnee to the area. Once the members of the community (extremists included) are made aware of his family connections and that he is not a stranger or a person from any of the groups of interest to them, the information before me does not suggest that there is any reason that the applicant would have a profile of concern to extremist groups in Pakistan.
In relation to the applicant’s potential deterioration of mental health, I have considered whether such would affect his profile, increasing the likelihood of him coming to the attention of extremists by ‘drawing attention to’ his opposition to their ideologies. I note that the applicant fully intends to continue mental health treatment and that he believed he would be able to do so in Pakistan, with some assistance from his father. However, for the purposes of this discussion, I have considered whether, if he suffered a relapse and became seriously unwell (as he was in [City 1]), this would increase the chance of harm to the applicant. Based on his lifelong mental health history in Pakistan and the nature of his illness in Australia, I do not consider that the evidence before me suggests that his becoming unwell would have any impact on his personal profile, increasing the chance of him coming to the attention of extremists – particularly when I consider the family support and familiarity for the applicant in his home region of [City 2].
I have accepted that the applicant holds political views that are opposed to extremist fundamentalist ideology. I do not accept, however, that he has any sort of profile which would draw that opposition to the attention of local extremists or lead to his being targeted for harm. He has family who are settled and known within the community and who will be around him and will be capable of assisting him to ‘assimilate’ into his community.      I also consider that the majority of the Pakistan community, including the government, military and police, are opposed to terrorism and do not share the fundamentalism of the various oppressive extremist organisations in Pakistan. That this is so is reflected in the country information about various and extended military operations aimed at disempowering extremist groups throughout the country. I consider that the applicant’s views will not single him out within his local or any community. He does not belong to any religious or other minority which would give him any profile likely to attract extremist attention.   I do not accept that there is a real chance that the applicant will be targeted now or in the reasonably foreseeable future by extremists in Pakistan because of his political views (that he is opposed to the use of terrorism and fundamentalism and to extremist ideologies), even taking into account a possible future deterioration in his mental health.
I have considered the country information about westernisation and I accept DFAT’s assessment about the pervasiveness of western influence in Pakistan. I do not consider that the applicant’s time in Australia and his being a member of the particular social group of young men who have been westernised or who have lived in a western country would necessarily draw him to the attention of extremists or cause him to be targeted on his returning to Pakistan, now or in the reasonably foreseeable future.
After weighing the aspects of the applicant’s claims and considering them both individually and also cumulatively, I am not satisfied that there is a real chance that the applicant will be persecuted now or in the reasonably foreseeable future for reason of his political opinion or membership of the particular social group of young men who have been westernised or who have lived in a western country, or for any other of the reasons listed in s.5J(1)(a) if he were to return to Pakistan.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
According to s.36(2)(aa), a criterion for a protection visa is that the person 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33I refer to and rely on my findings in relation to the real chance of harm.
The applicant fears that he will suffer deterioration in his mental health of a severe nature as a necessary and foreseeable consequence of his being returned to Pakistan. The applicant also fears that he will be killed or assaulted by extremists who will target him because he is opposed to their ideology, or that he will be killed or assaulted in a general act of terrorism if he is returned to Pakistan.
Based on the applicant’s past experience of suffering a psychosis and requiring hospitalisation in [State 1], I accept that the applicant is potentially vulnerable to a relapse or worsening of his mental health condition if he is returned to Pakistan, particularly given his experience on his return in 2014, where he immediately felt ‘watched’ after he was attacked.
I note the exhaustive definition of ‘significant harm’ in s.36(2A) of the Act:
(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.
I refer to my discussion about the ‘real chance’ of harm above and note that I have found that there is not a real chance that the applicant will be killed or assaulted by extremists if he is returned to Pakistan. Consequently, I find that there is not a real risk that the applicant will be arbitrarily deprived of his life if he is returned to Pakistan. The evidence before me does not raise any other basis on which the applicant faces such a risk, and I find that there are no grounds for believing that he does.   The evidence and information before me does not raise any grounds for believing that the death penalty will be carried out on the applicant, and I am satisfied that it will not.
In relation to his fear of mental health deterioration, whilst there is such a risk of that deterioration, and that it may be severe, the information and evidence before me does not suggest that any severe deterioration in his mental health would be inflicted on the applicant by any person or group. S.5(1) of the act provides definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. In each case, the elements of the definitions require an act or omission by which severe pain, pain or suffering or extreme humiliation is intentionally inflicted on the person. In the applicant’s case, deterioration of his mental health may arise due to the change in his environment and any potential lapse in treatment, but the applicant’s evidence does not suggest intentional infliction of such (nor indeed, the intentional withholding of treatment for any reason by any person). I consider that the possible deterioration in the applicant’s mental health does not meet the necessary criteria within the definitions of ‘significant harm’ outlined in s.5(1) for each of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment.’   That harm would not be ‘inflicted’ or ‘caused’ by any act or omission of any person which intended to cause that harm.
The applicant also fears falling victim to a general act or terrorism throughout Pakistan due to the general security situation. The country information discussed above generally acknowledges that such attacks can and do happen without warning throughout Pakistan, targeting various groups or persons in authority, despite some reduction in the number of attacks over recent years.   There is some risk therefore, that the the applicant may fall victim to a random attack as an innocent bystander, wherever he is in Pakistan. However, I consider that any such risk is not one faced by the applicant personally but is one faced by the population of the country generally. Applying s.36(2B)(c), there is therefore taken not to be a real risk that the applicant will suffer significant harm from falling victim to a general act of terrorism.
The evidence before me did not raise any other grounds for believing that the applicant would suffer harm (significant or otherwise) as a necessary and foreseeable consequence of his returning to Pakistan. After weighing my findings, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 2122

5 February 2019

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