1800964 (Refugee)

1800964 (Refugee) [2023] AATA 1100 (6 February 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rabiah Khawaja
CASE NUMBER:  1800964
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Haag
DATE OF DECISION:  6 February 2023
DATE CORRIGENDUM
SIGNED:10 February 2023
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

On 2 February 2023, Clothier Anderson Immigration Lawyers, erroneously notified the Tribunal in writing that they had been [re]appointed as the applicant’s authorised representative.
After receipt of the correspondence on 2 February 2023, a Tribunal officer contacted Clothier Anderson who confirmed that Ms Catherine Farrell is the applicant’s authorised representative.
On 7 February 2023 the Tribunal provided Ms Farrell with the Decision Notification and Decision record in accordance with established procedure. After receiving this correspondence, on 7 February 2023, Clothier Anderson informed the Tribunal that the most recent notification of the [re]appointment of Ms Farrell was sent in error.
Consequently, on 9 February 2023 the Decision Notification and Decision record was sent to Ms Rabiah Khawaja who is the applicant’s duly appointed authorised representative.
Peter Haag
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Catherine Farrell
CASE NUMBER:  1800964
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Haag
DATE:6 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 February 2023 at 11:49am
CATCHWORDS
REFUGEE – Protection visa – Pakistan – political profile – fears harm as an informant against the Tehreek-e-Taliban Pakistan – prominent family association with the ANP – race – an ethnic Pashtun –membership of a particular social group – persons with a mental health condition – conflicting evidence – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 Home Affairs on 5 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 30 March 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act.
The applicant was represented in the review.
Tribunal hearings were conducted with the assistance of an interpreter in the Pashto and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Section 5AAA of the Act 1958
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
CONSIDERATION OF Claims and evidence
The issue in this case is case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s evidence
In his application for a protection visa, the applicant claimed to be a citizen of Pakistan, born [date], in Karachi West, Pakistan. He stated he is Pashtun (Yousafzai) and Sunni Muslim. He claimed to be able to read, write and speak Urdu, and to speak Pashto.[1]
[1] Department file [Deleted], folios 40–42.
At the time of application, his parents, [and siblings] were living in Swat, Pakistan. His wife, [and children] were also living in Swat, Pakistan.[2]
[2] Department file [Deleted], folios 38, 48–55.
Around 1970 the applicant’s parents moved from [Village 1], Swat, to Karachi. Members of the applicant’s extended family remained in Swat.[3] According to the visa application the applicant was born in Karachi on [date].
[3] Department file, applicant’s statutory declaration dated 29 March 2016.
According to the visa application the applicant lived in Karachi West from March 1986 to May 2015. He married in Karachi on [date] May 1997. The applicant lived in Swat from May 2015 to June 2015. There is no evidence of the applicant being harmed by the Taliban during that period.
The applicant last departed Pakistan by air from Karachi on [date] November 2015. He joined a [ship] as crew and arrived in [Port 1], Australia on [date] February 2016, whereupon he deserted the ship and entered Australia.
According to the written visa application, the applicant in Pakistan owned a [store] in Karachi West from May 1993 to March 2015. He also worked [for] a shipping company, from April 2005 to February 2016. He did not list any education qualifications.[4]
[4] Department file [Deleted], folios 25–28.
Applicant’s identity
The applicant provided the Department with his Pakistani passport, a certified copy of an expired passport, and his Seaman’s book, issued in [2010] and expiring [2020].[5]
[5] Department file [Deleted], folios 69–106, 110 (Seaman’s book not folioed).
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he 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.
Migration history
The applicant arrived in [Port 1] Australia, on [date] February 2016, after departing Jinnah International Airport, Karachi on [date] November 2015. He held a Maritime Crew (Subclass 988) visa at the time of arrival but entered the country as a ship deserter.[6]
[6] Department file [Deleted], folio 35.
A ‘Report of absent members of crew’ from the vessel [name], including the name of the applicant and three other crew members, was made by Captain [name] and the Acting Inspector Maritime on[date] February 2016. A ‘Declaration to cease a maritime crew visa’, listing the applicant’s name, was made [date] February 2016. The Department file indicates that the applicant and three other crew members left the vessel without permission.[7]
[7] Department file [Deleted], folio 108–112.
The applicant remained in the country unlawfully before lodging a protection visa application on 30 March 2016. On 5 January 2018, the delegate refused to grant the applicant a protection visa.
The applicant previously applied for a tourist visa to [Country 1], but this was refused in August 2014. He applied for a tourist visa to Australia in about January 2015 but claims he did not receive a response from the Australian High Commission.[8]
[8] Department file [Deleted], folios 32–33.
Claims for protection and supporting documents
As part of his application for a protection visa, the applicant submitted a statutory declaration, signed, dated and witnessed 29 March 2016. In this document he made the following claims:[9]
The Country to which I fear returning
6. I fear to return back to my home country Pakistan as I am wanted to Taliban.
Why I left that Country
7. I left Pakistan due to immense risks to my life from the banned and terrorist group Tehreek-e-Taliban Pakistan (TTP). During the military operation that security forces had carried out in Malakand Division and FATA, most of the Taliban elements were killed and captured while many of them moved to Karachi where they supposed to get two benefits. On one hand they would stay out of the eyes of law enforcement agencies and on the other, they found financial resources for the funding of their association by sending ransom's letters to the businessmen of Karachi.
8. In the mid of January 2012 when a number of Talibans were relocating into Karachi, four of them namely [names deleted] known to my family from Swat came to our house and they asked us to give them a place to stay for a few days. Due to the fear and knowledge about the brutality of Taliban, we compellingly allowed them to stay in our 'Bethak' (guest room). I informed my Uncle (father first cousin) [Mr A] and my cousin (father cousin's son) [Mr B] who were influential members of our family about this matter. My Uncle and cousin, who already hated Taliban and their agenda, told me that we should inform the law enforcement authorities about the presence of those Taliban. Upon our tipoff the authorities raided our house at night and arrested all four members of Taliban from our guestroom.
9. After these arrests, the authorities advised us to remain careful as the companions of those Taliban may try to harm us. Upon this advice I realized the danger we had undertaken by recalling the unkind treatment Taliban had done in Swat with those who did not comply with their commands or helped the Army or Police against their organization. In the early March 2012 my Uncle [Mr A] received a phone call from associates of Taliban who demanded 05 million rupees from him as compensation for letting their friends arrested. My uncle told him that it is impossible for us to arrange such a huge amount. The caller ended the call by saying that he needs the money immediately and it is not his headache how and from where we may arrange the amount and by not meeting the deadline we will absolutely have to bear the loss of lives. He was neither able to arrange the money nor were he going to pay. As a result, on [date] March 2012 my uncle was targeted and killed by Taliban in Karachi. A police report of this killing had been filed (a copy will be provided to Department).
[9] Department file [Deleted], folios 44–47.
10. In the end of March 2012, my cousin [Mr B] received call from similar people for that compensative amount. He was unable to pay such amount either and therefore started to lead a careful life by limiting his exposure in day to day activities. Despite of his struggle for his life, unfortunately on [date] April 2012 he was targeted and killed too by Taliban in Karachi. This killing was also registered with local police station (a copy of this report will be provided to the Department as well). After mentioned killings of my family members, I become worried about my own life and tried my level best to go on the ship and was offered a contract by my company and I joined the ship in the early May 2012.
11. One morning in about mid 2013 when I was back home and was running my shop, I found a letter which was thrown into my shop. The letter was written by Taliban and it had blood on its backside. I was threatened to provide them minimum one million rupees in no time otherwise the floor will be coloured with my blood similarly to the one who denied the payment and whose blood has been painted on the letter as admonition. They had further written that their anger is already at the peak for me and my family because the arrest of their friends took place at my place due to the support of our family with security forces and they do not want to see a single remaining person of our family alive. Therefore I should arrange the amount without any delay if I do not want to be killed like my uncle and cousin. This note renewed the fear for my life as Taliban had indeed had killed many businessmen in the area who had denied paying them. A few days later, I was reminded again by a phone call about the payment. It was not a small amount but for the sake of mine and the lives of my family members, I arranged and paid the money to them.
12. After that in about July 2014, I received another call from Taliban for more money. This time they demanded 4 million rupees in connection to similar antagonism we had did with them in shape of supporting authorities in the detention of their fellow members. I told the caller that I have already paid 1 million rupees last year and I cannot arrange such a huge amount again. The caller replied that he is not concerned with anything else but he is ordered either to collect 4 million rupees from me within 2 weeks or confirm my death to his leaders. I was very stressed after this call. I went to the Police station and reported the matter. The Police officer on duty told me not to pay a single penny to them as they use it on the war against the state and its citizens. He advised me to look after myself and family and refused to file a report against unknown caller by saying that they cannot protect members of their own force from the attacks of Taliban so how can they provide me protection against them.
13. I become upset for my life and well being. I contacted my family members to give me some advice regarding the current situation. I was told by some of my family members to apply for a visa to western countries and flee the country. In about late July 2014 I applied for a Tourist visa to [Country 1]. The application was later returned by [Country 1] Consulate [advising] me to re-apply in the future. In about January 2015 I applied for a Tourist visa to Australia and I haven't yet received any response from the Australian High Commission in Pakistan regarding this application. Lack of positive responses increased my worries and the sole safety measure for me was to keep a low profile within the locality. For most of the time, I stayed inside my house and I also changed my mobile number.
14. Due to the growing number of Taliban attacks on their opponents we sold our house and shop in Karachi and my family members went to Swat to our family home for safety purposes. I remained in Karachi and would frequently change my addresses. I tried my very best to get a contract with my company and finally I secured a contract with my shipping company. I left Pakistan on [date] November 2015 and joined the ship on the same [day]. Our Ship then arrived to Australia on [date] February 2016 and I deserted from this ship in [Port 1] Australia on [date] February 2016.
What I fear may happen to me, by who and why, if I return to that Country
15. I fear I will be killed by the fighters of Tehreek-e-Taliban Pakistan for helping the forces in arresting their partners. In the second instant I also failed to pay them 4 million rupees in ransom. I now fear that I will be mistreated by Taliban if I return back to Pakistan because everyone has witnesses that whoever did against Taliban or deny to their demand of money is killed openly.
Did I experience harm in that Country
16. I have been threatened by Taliban so many times to pay them a ransom as a penalty for helping the law enforcement agencies in arresting members of their organisation.
Did I seek help within the country after the harm
17. I have been to the police to report threats to me from Taliban but they failed to file a report against unknown people and advise me to be careful and look after myself because they are helpless in front of Taliban attacks and their operations.
Did I move or try to move to another part of that country to seek safety
18. I have tried to move to other parts of the country but I have constant fear for my life and safety and could not find a safer place for myself to move into. In addition, looking into the similar cases, relocating within Pakistan is useless because Taliban has a strong and nationwide coordination network.
Do I think I will be harmed or mistreated if I return to that Country
19. I believe I will be killed or mistreated by members of TTP.
Why I think the authorities of that Country cannot or will not protect me if I were to go back to that Country
20. The authorities cannot provide me protection against Taliban. When I tried to lodge a report against Taliban, the local police were not in the position to file my report by saying that they cannot save themselves and members of their forces so how they will protect me against Taliban.
Why I think relocation to another area in my country is not a reasonable option
21. On the basis of stated issues, it is not safe to move to other parts of my home country Pakistan. Taliban have spread and have recruited members from all around the country. They have deployed their spies in all the corners of the country to get updated their selves from the locations and positions of their enemies. Therefore I do not feel safety in any part of that country.

The applicant also submitted to the Department:[10]
a.    a document in Urdu, dated 22 March 2012;
b.    a First Information Report, dated 22 March 2012, made in West Karachi at [time], by [name], stating that his brother-in-law, [Mr A], had been shot and killed at [a venue] by two unknown assailants at around [time] on [date] March 2012. His brother-in-law was a sympathiser of the Awami National Party (ANP);
c.     a document in Urdu, dated 26 April 2012;
d.    a First Information Report, dated 26 April 2012, made in West Karachi at [time], by [name], stating that his brother, [Mr B], was shot and killed near [a location] around [time] on [date] April 2012 by an unknown assailant. Two children were also shot and injured.
[10] Department file [Deleted], folios 115–118.
The applicant attended an interview with the Department on 23 October 2017.
On 5 January 2018 the Minister’s delegate (primary decision maker) refused to grant the applicant’s application for a protection visa. The Tribunal has read the record of the delegate’s decision that the applicant provided to the Tribunal.
On 14 August 2022, the applicant submitted the following documents to the Tribunal:[11]
[11] Tribunal file 1800964, Doc ID 10098799.
a.    Legal submissions from the applicant’s representative, dated 15 August 2022, stating, inter alia, that the applicant fears harm as an informant against the Tehreek-e-Taliban Pakistan (TTP), on account of his prominent family association with the ANP and because of his status as an ethnic Pashtun, and referring to the following documents as supporting evidence;
b.    Statement of [the applicant] dated 29 July 2022: the statement added to the evidence provided in the statutory declaration made 29 March 2016. The applicant stated that he and his father were supporters of the ANP, and his uncle who was shot and killed on [date] March 2022, was also involved in the ANP. The applicant also added the following:
49. I am working in Australia as a [occupation]. I am the only person who is financially supporting my wife and children who remain in Swat Valley. Recently my wife told me that some unknown persons stopped my children on the way to school and asked them about their father’s name. Two or three days later, stones were thrown at our house. Recently one of the well known commanders Mulla Nadar, who was running the FM radio at the time on behalf of Mr Mulla Fazllulah, was arrested in Kanju. Alongside this, a doctor – Doctor Zeshan from SWAT – was kidnapped in Waziristan. Another eight members of the TTP were arrested in Swabi. In another incident, one of my friend’s son was attacked with his grandfather in Saidu Sharif by Taliban members. The recent situation in Afghanistan has affected our area and people are complaining about regularly seeing Taliban members in the street. There is an increasing number of news stories about children being kidnapped and held for ransom. As a result of these incidents, the children are scared and are not going to school anymore as my wife is afraid for their safety.I am aware that the Taliban have committed some brutal attacks whereby women and children have been murdered, including most devastatingly the December 2014 attack on the military school in Peshawar.
50. My brothers remain in Pakistan, but I do not know about their safety and security because they don’t tell me about it. They think that I am out of the country and I have my own problems and issues, and I think they don’t want to add these. At least they have never advised me that they have received any threats from the Taliban since my departure from Pakistan, however I know they don’t like to talk to me much about the security situation because they know how it impacts upon my mental health.
51. In any event, my two brothers are younger than me and had no role in the guesthouse incident. It was my home, I welcomed them, and in the mind of the Taliban, I was the one who exposed them to the authorities.
52. I fear being forced to return to Swat and bring harm to my whole family there. The Taliban are very active in Swat, as they are throughout the whole of Pakistan. Their network is particularly strong in Swat.
53. I have been seeing a psychologist regularly since I have been in Australia to deal with my stress and anxiety. I am currently doing phone consultations because of COVID-19 about once every month. My psychologist is [Mr C] and I am very dependent on him for ongoing mental health treatment. I worry all the time about the safety of my family and kids.
54. Whenever I think about having to return to Pakistan, or to Swat. I think about being found and killed due to the incidents that played out between 2012 and 2014. I am on their target list and the Taliban’s brutal determination and strong network means that they will never leave me alive An attack on the stock exchange in Karachi recently, on 29 June 2020, has exacerbated my fears. Learning about the attack by four gunmen reminded me that no one is safe, and nowhere is secure in Pakistan. I cannot return to Karachi, and Swat is such a dangerous place. Neither sound safe for me at all. I have no other family or support network in any other place in Pakistan, and it is difficult for Pashtun men to simply relocate to a town which is not predominantly Pashto. I would face a lot of discrimination and difficulties and these problems – coupled with my mental health issues – would make it impossible for me to survive and support my family. I fear I would be so afraid that I would end up in a mental hospital, but even then the mental hospitals are not very good. I don’t know how I would be able to live and provide for my family under such immense stress and anxiety.
c.     Letter dated 5 July 2019 from [name], [position], ANP (Sindh), confirming that the applicant was a member of the ANP, that two of his family members were killed by terrorists and that he once paid a ransom of 50 Lakh Rupees;
d.    Certified translations of the First Information Reports dated 22 March 2012 and 26 April 2012 previously submitted to the Department and described above at paragraph 26;
e.    Certified translation of an article titled ‘Target Killing in Karachi; 5 people, including members of Muttahida and PP, killed’, from Daily Express, express.com.pk, no date provided;
f.   Certified translation of an article titled, ‘Peerabad: One killed by firing; 3 injured in Shah Latif, Jackson and Gulshan’, express.com.pk, no date provided;
g.    Certified translation of an affidavit by [a named individual], dated 10 October 2018, declaring that the applicant lives in Karachi West, is from a respectable family, a good neighbour and supports his community;
h.    A death certificate issued by the Government of Sindh Pakistan, in English and Urdu, purportedly recording the death of [Mr B] on [date April] 2012, however some of the English script is unclear. A more legible copy of the document was submitted to the Tribunal during the second hearing;
i.   Certified translation of an affidavit by [Mr D], dated 8 July 2019, confirming that he loaned the applicant Rs. 300,000 so that the applicant could pay terrorists who were threatening the applicant’s life;
j.   Certified translation of an affidavit by [a named individual], dated 29 June 2019, declaring that the applicant stayed with him to hide from terrorists who were threatening his life;
k.     Certified translation of an affidavit by [Mr E], dated 20 June 2019, declaring that the applicant stayed with him to hide from terrorists who were threatening his life;
l.   Certified translation of an affidavit by [Mr F], dated 1 July 2019, declaring that the applicant stayed with him to hide from terrorists who were threatening his life;
m.   Seven receipts, dated from 2014 to 2015, one from [a business], three from [a company], three in Urdu only, and what appears to be two pages of an exercise book listing dates and figures, in both Arabic numerals and Urdu;
n.    A copy of the first page of a Sale Agreement in English between the applicant as vendor and [Mr G] as vendee for the sale of property in Karachi, dated [date] February 2016;
o.    Certified translation of the first page of a Sale Agreement in Urdu between the applicant as seller and [Mr G] as buyer for the sale of property in Karachi for Rs. 40,000,000, dated [date] February 2016;
p.    A mental health report by [Mr C], Clinical Psychologist, dated 30 March 2021, stating that the applicant meets the criteria for a major depressive disorder moderately severe in intensity, with accompanying moderately severe anxious distress, and moderately severe PTSD. He recommended continued pharmacological and psychological treatment, and to continue to live and work in Australia;
q.    A mental health report by [Mr C], Clinical Psychologist, dated 17 March 2022, providing the same diagnosis and recommended treatment as in the report dated 30 March 2021. He also states that the applicant ‘will probably become extremely psychiatrically unwell if he does actually return to Pakistan’.
On 12 September 2022, the applicant submitted to the Tribunal:[12]
a.    Article dated 7 August 2022, ‘4 killed in gun attack on PTI MPA in Lower Dir’, that was published in Dawn;
b.    Uncaptioned video footage that is approximately two minutes and 51 seconds in duration, which purportedly depicts a child talking about having been attacked (along with this grandfather) in Swat Valley by Taliban forces (no date or source provided); and
c.     Uncaptioned video footage that is approximately one minute and 22 seconds in duration, which purportedly depicts Taliban forces interviewing captured/kidnapped members of the Pakistani security forces (no date or source provided).
[12] Tribunal file 1800964, Doc ID 10212501.
On 19 September 2022 the applicant attended a hearing at the Tribunal.
On 19 October 2022 the applicant attended a hearing at the Tribunal.
On 7 December 2022, the applicant submitted the following documents to the Tribunal in response to an invitation the Tribunal gave to the applicant pursuant to s 424A of the Act to consider and respond to certain issues that arose on the evidence, and documents additional to the s 424A response:[13]
a.Legal submissions provided by the applicant’s Representative;
b.Statutory declaration signed by the applicant, dated 6 December 2022;
c.Letter dated 27 November 2022 from [Mr C], Clinical Psychologist treating the applicant;
d.Email dated 2 December 2022 from [Mr C], Clinical Psychologist treating the applicant;
e.Letter dated 13 December 2022 on letterhead of [Organisation 1], Melbourne, with the signature [Ms H], Counsellor, [Organisation 1].
f.Country information provided by the applicant’s representative.
[13] Tribunal file 1800964, Doc ID 10524691.
On 11 January 2023 the applicant attended a hearing at the Tribunal at which the following documents were submitted:[14]
a.A copy of a Death Certificate for the applicant’s relative, [Mr B] .
[14] Tribunal file 1800964, Doc ID 10630889.
Pre-hearing procedural matters
The first hearing was held on 19 September 2022; he was represented at that hearing. The applicant was invited to attend a second hearing on 17 October 2022. This date was vacated at the request of the applicant’s representative who was unavailable on that date due to a pre-existing interstate commitment. The matter was relisted for hearing on 19 October 2022 at 1:30 pm. On 11 October 2022 the applicant’s representative responded to the rescheduled hearing invitation and informed the Tribunal that the applicant and his representative would attend the hearing on 19 October 2022.
On 19 October 2022, shortly before the hearing was due to start, the applicant’s representative, Catherine Farrell, of Clothier Anderson, Immigration Lawyers, informed the Tribunal by email that ‘due to a conflict of interest as of today 10 October 2022, she had to withdraw’ as the applicant’s representative. When the Tribunal became fully apprised of this development, the applicant was present at the Tribunal. In these circumstances the Tribunal decided to hear from the applicant. The hearing commenced at 1:51 pm.
According to the applicant he was informed of the representative’s decision to withdraw about 90 minutes before the proceeding was scheduled to commence. Nevertheless, the applicant indicated he was willing to proceed with the hearing. A Tribunal officer contacted the law offices of the applicant’s representative. At the request of the Tribunal, Ms Farrell appeared before the Tribunal by telephone and explained that she first became aware of the conflict of interest on the morning of the hearing. The Tribunal determined that the proper course of action was to adjourn the hearing to a date to be fixed to allow the applicant sufficient time to obtain alternative representation. The applicant was urged to act expeditiously.
On 21 October 2022 the applicant was invited to a further hearing scheduled for 15 November 2022.
On 2 November 2022, in accordance with s 424A of the Act the Tribunal wrote to the applicant and invited him to respond to certain matters in writing by 16 November 2022.
On 3 November 2022 the Tribunal invited the applicant to a further hearing to take place on 18 November 2022 to allow the applicant enough time to respond to the s 424A request.
On 11 November 2022 the applicant notified the Tribunal of the appointment of his new representative. On the same date the applicant’s representative requested the hearing be postponed to any date after 9 December 2022.
On 14 November 2022 the Tribunal rescheduled the application for hearing on 9 December 2022.
On 16 November 2022, as a matter of fairness to the applicant, the Tribunal determined of its own motion to extend the time afforded to the applicant to respond to the s 424A request for information from 16 November 2022 to 7 December 2022.
On 6 December 2022 the Tribunal informed the applicant that due to circumstances beyond the control of the Member, the Member was unable to conduct the hearing on 9 December 2022 and the matter would be rescheduled for hearing in due course.
On 19 December 2022 the Tribunal informed the applicant the matter had been rescheduled for hearing on 11 January 2022.
On 11 January 2022 the applicant appeared before the Tribunal represented by Rabish Khawaja, of WLW Migration Lawyers.
On 2 February 2023 the Tribunal was notified that Ms Farrell of Clothier Anderson Immigration Lawyers had been reappointed as the applicant’s authorised representative.
The applicant was assisted in the hearings by an interpreter in the Pashto (Pakistan) language.
At the request of the applicant and the consent of the Tribunal, [Ms H] was present throughout the hearing in the role of support person to the applicant.
Application of the vulnerable person guidelines
The Tribunal has given regard to the correspondence received from [Mr C] in respect of the applicant participating in the Hearing.
The hearing proceeded in accordance with the AAT guidelines on vulnerable persons. Before the evidence commenced the Tribunal satisfied itself that the applicant was able to fully participate in the hearing and that he was competent to give evidence. The applicant’s representative did not contend the applicant was not competent to participate in the hearing and no application to adjourn the proceedings was made.
In discussion with the Tribunal the applicant’s representative was of the view the hearing could proceed. The Tribunal made plain the hearing would proceed in an unhurried manner with the applicant being given periodic breaks. After hearing the exchange between the Tribunal and his representative, the applicant said he understood the discussion. In this context the applicant informed the Tribunal he was ready to proceed with the hearing.
Based on the foregoing considerations and having considered the various psychological and counsellor’s reports available to the Tribunal concerning the applicant, and after paying close attention to the applicant during the hearing, the Tribunal is satisfied the applicant followed the proceedings and understood to the Tribunal’s questions.
The Tribunal is satisfied the applicant was able to fully participate in the hearings, and to present his evidence, arguments, and submissions to the Tribunal. Nevertheless, in considering the applicant’s evidence and assessing his credibility, veracity and accuracy as a witness, the Tribunal has applied the AAT guidelines concerning vulnerable persons.
Consideration of the applicant’s claims
The applicant’s family is Pushtun, and the applicant identifies with his Pushtun ethnicity.
According to the evidence, while the applicant and his family were living in Karachi in 2012 the applicant was a seaman. In that role he travelled to many countries including Australia on several occasions. He spent many months per year at sea away from his wife and children who resided in Karachi. Between voyages the applicant worked in a [shop]. His father established the business for him to run after he completed his education in 1999, and before he became a seaman in 2005. The shop sold [goods]. While the applicant was at sea his father and brother ran the shop. The shop was in an area of Karachi that was known as a Pashtun area.
According to the applicant’s oral evidence he invested money in the business. He owned the business jointly with his father, but his father owned the building where the shop was located. In the written visa application, the applicant described his occupation as ‘store owner.’
The applicant gave evidence that his father owned the family home in Karachi in which he resided with his parents, and his wife and children.
The applicant and his family were well established in Karachi. The applicant’s parents moved from Swat Valley to Karachi in 1970. According to the evidence several of the applicant’s uncles and members of his extended family lived in the same area of Karachi in which the applicant’s family home was located. The applicant was educated in Karachi.
While the applicant, his immediate family and members of his extended family lived in Karachi, the evidence established that members of his extended family lived in the Swat area.
According to the applicant’s written visa application, the applicant’s decision to desert his ship and apply for protection in Australia was caused by his decision in January 2012 to allow four named members of the Taliban to stay in a guest house owned by his father. The guest house was located nearby the family home. According to the applicant’s evidence at hearing, he allowed the four members of the Taliban to stay in the guest house without asking his father for permission to do so.
The applicant asserts that in 2012 a military operation in the Swat Valley forced members of the Taliban to relocate to Karachi to escape from the military.
In this context according to the evidence, four members of the Taliban asked the applicant for accommodation for a few days. There is no evidence that they expressly threatened to harm the applicant if he refused to accommodate them. According to the applicant these members of the Taliban were known to his family, and his family knew them. The applicant also explained that the shop was famous, and it was well known that his father owned a guest house.
According to the applicant’s evidence at hearing he let the Talibs stay in the guest house, without his father’s permission or prior knowledge. He knew the men were members of the Taliban and for that reason he feared them. He also knew they were hiding from the military.
The Tribunal asked the applicant for his reason for allowing the four men into the property when he knew they were members of the Taliban. The applicant reasoned they were from the same area as his family, they were known to his family and shared cultural bonds, hence he decided to accede to their request to stay for a few days. He also said in evidence that he was afraid of them and felt compelled to let them stay out of fear. He feared them because he knew of the brutality of the Taliban.

The Tribunal put to the applicant that he gave the members of the Taliban shelter knowing that by doing so he created risks for his family from the Taliban and the military. The applicant reasoned he was scared because they were dangerous people and members of the Taliban. The Taliban had killed and kidnapped people and committed many atrocities and beaten people, hence he was afraid of the harm they may cause if he turned them away.
He said in evidence that he took the Talibs to the guest house, not the family home, without asking his father’s permission because they were known to the family and shared cultural bonds. After he let them into the guest house, he told his father and his wife what he had done.
The applicant’s father told him they were dangerous people. According to the evidence the applicant left the family home and went to a nearby property where his uncle, [Mr A], and his cousin, [Mr B] resided. He told them of the presence of the four Talibs in the family guest house. He also told them the names of the four men. They knew of them and told the applicant they were dangerous people: the applicant was already aware of that.
At hearing the applicant asserted that his uncle told him they would report the location of the Talibs to the authorities for the safety of the family and community. According to the applicant’s evidence, the uncle and cousin then sent the applicant home, and they took control of the situation. By logical inference the applicant waited at home with his parents, wife and family for a response by the authorities. In the early hours of the morning the authorities raided the guest house and arrested the four Talibs.
The Tribunal put to the applicant that the Tribunal had difficulty with the plausibility of his claim that after giving sanctuary to the terrorists, he then reported their presence to his uncle and cousin, and that the uncle and cousin would inform the authorities about their location, putting the family at risk of retaliation from the Taliban.
Common sense makes plain that by reporting the presence of the Talibs to the authorities after the applicant gave them shelter, this would expose him and his family to the very risk he sought to avoid by giving the Talibs shelter, rather than turning them away.
The Tribunal suggested to the applicant that one option was to say nothing and ask them to leave after accommodating them for the period they wanted. The applicant responded that could not be done because the four men were dangerous.
Considering the applicant’s firm view about the ruthlessness of the Taliban; that the Talib’s knew the applicant’s family, and the evident risks from the capture of the Talibs while they were hiding in the father’s guest house, the Tribunal finds these factors weigh against the credibility of the applicant’s response to the Tribunal’s suggestion that one available option was to say nothing about them.
According to the applicant’s evidence at hearing, irrespective of his fear of these men and the Taliban, he informed his uncle and cousin about the location of the Talibs. At that time, he says he knew his uncle and cousin hated the Taliban; they were high profile members of the ANP, a political party that opposed the Taliban[15]. If that evidence is accepted, as a matter of common sense, by informing the uncle and cousin of the location of the Talibs he was creating a significant risk of their location being reported to the authorities.
[15] DFAT country information report on Pakistan, January 2022
As the Tribunal understands the evidence, the applicant reported the presence of the four

Talibs to his uncle and cousin a short time after the Talibs were allowed in the guest house. The uncle and cousin told the applicant they would inform the authorities about the Talibs for the safety of the family and community. The evidence indicates the applicant simply passed immediate control of his family’s situation to his uncle and cousin.
There is no evidence of any discussion of any risks to himself, his family, and his father that may be created by informing to the authorities, or that he objected to their proposal. In the early hours of the morning, the authorities apprehended the Talibs in the father’s guest house.
If the Talibs were arrested in the father’s guest house, on the applicant’s evidence about the Taliban’s propensity for brutality and retribution, the arrests made the applicant’s father, the applicant and his family likely targets for retribution.
If the applicant’s evidence is to be accepted, he reported the presence of the four members of the Taliban to two relatives he knew hated the Taliban and were influential members of the family as well as active members of the ANP. The evidence does not establish the applicant’s father shared the uncle and cousin’s hatred of the Taliban.
The evidence does not establish the applicant was motivated to tell his uncle and cousin about the presence of the Talibs for the purpose of involving the authorities, or due to the applicant’s political opinions and membership of the ANP, or because his uncle and cousin were members of the ANP and their hatred of the Taliban.
The evidence, considered as a whole, weighs against accepting as persuasive the applicant’s evidence that he gave sanctuary to the Talibs because he feared them and the Taliban, then reported their presence to his uncle and cousin knowing of their hatred for the Taliban and their membership of the ANP, an anti-Taliban political party.
In substance the applicant relied on his evidence that the Taliban and the four men were dangerous, and he feared they would harm him if he did not give them shelter. The fact the Taliban and its members are dangerous seems, as a matter of common sense to add to the risk of reprisal against the applicant and his father for giving them sanctuary in a location where, shortly afterwards, they were apprehended by the authorities. The Tribunal finds the applicant’s response to the Tribunal’s concern about the plausibility of his evidence at hearing about reporting the presence of the Talibs to his uncle and cousin, and that they in turn passed the information to the authorities, to be unpersuasive.
The Tribunal’s concern about the plausibility of this aspect of the applicant’s evidence does not, in and of itself, determine whether the evidence is sufficient to persuade the Tribunal that the applicant and his family sheltered the four members of the Taliban. There are additional matters for the Tribunal to consider.
According to the applicant’s visa application, including his statutory declaration declared on 29 March 2016, after the Talibs were arrested he realised the danger he faced when the authorities advised him, and presumably the other family members, that the Taliban may try to harm them. He said in his visa application:
After these arrests, the authorities advised us to remain careful as the companions of those Taliban may try to harm us. Upon this advice I realized the danger we had undertaken by recalling the unkind treatment Taliban had done in Swat with those who did not comply with their commands or helped the Army or Police against their organization.[16]
[16] Department file, visa application forms.
The applicant also declared in his statutory declaration of 29 March 2916 that:
‘[d]ue to the fear and knowledge of the brutality about the brutality of Taliban, we compellingly allowed them to stay in our ‘Bethak’ (guest room).’
In his oral evidence the applicant asserted that the fear that influenced him to give shelter to the Talibs, was informed by his knowledge of the atrocities, torture and beatings carried out by the Talibs.
In essence the applicant asserts he felt compelled to the comply with the Talibs’ request for accommodation because he feared the harm they may cause if he refused to comply with their request for accommodation. Additionally, before the Talibs were arrested the applicant was told by his father, uncle, and cousin that the four Talibs were reputed to be dangerous individuals.
The Tribunal has considered the substance of the applicant’s evidence about his knowledge of the brutalities performed by members of the Taliban, and his reasons for fearing being harmed if he failed to meet the Talibs’ requirement for shelter. If that evidence is to be accepted, the Tribunal considers it unlikely that the applicant had to be advised by the authorities about the relevant risks he would face because of the circumstances of the arrest of the Talibs. According to the substance of the applicant’s oral evidence and his statutory declaration, at the time he gave shelter to the Talibs he realized if he did not comply with their requirements, he would be harmed. This fear of harm was informed by his recollection of atrocities and beatings people had suffered at the hands of the Taliban.
On balance, the Tribunal is of the view that the applicant’s account of coming to the realization of the risk of retaliation they faced, after the Talibs were arrested and because of the warning they were given by the authorities, and that the warning is what caused him to recall the Taliban’s practice of reprisals for non-cooperation or informing against them in Swat, to be unrealistic.
The applicant’s statement in his statutory declaration reproduced at [83] in this decision seems to the Tribunal to be contrived. According to the applicant’s oral evidence his fear of being harmed by the Taliban if he did not comply with their requirement, was enlivened before the Talibs were arrested and at the time the request for shelter was made.
According to the applicant’s case, in early March 2012, associates of the Taliban, in a telephone conversation with his uncle, [Mr A], demanded he pay them ‘5 million rupees… as compensation for letting their friends [be] arrested.’[17] The applicant contends that the Taliban held him responsible for the arrest of the four Talibs in his father’s guest house and for that reason they demanded monetary compensation.
[17] Department file, applicant’s statutory declaration declared 29 March 2016; applicant’s evidence at hearing.
According to the applicant’s case the uncle, [Mr A], did not pay the blackmailers the compensation they demanded. For this reason, he was killed on [date] March 2012. After that, according to the applicant, on [date] March 2012 the blackmailers turned their attention to his cousin, who ‘received a call from similar people for that compensation amount’. He did not meet the demand, and on [date April] 2012 he was killed.
The Tribunal is concerned that the evidence, when considered without having regard to the documents said to be relevant to the death of the applicant’s uncle and cousin, is insufficient to persuade the Tribunal that it is reasonably likely the Taliban would have first sought retribution from the applicant’s uncle and cousin, rather than the applicant’s father and the applicant. The Tribunal will now discuss this concern.
The applicant’s evidence demonstrates that the applicant’s father (a retired seaman), mother, wife and children were living in a house owned by the applicant’s father, in the Pashtun area of Karachi in 2012. They had been living in Karachi for many years. According to the applicant’s evidence his father owned a guest house that was situated on land located a short distance from the family home.
According to the applicant’s oral evidence the father’s guest house was well known. According to the record of the delegate’s decision, the applicant informed the delegate that the Taliban were able to locate him in Karachi because he had a very famous shop, and they were able to find his address. The applicant also indicated in evidence that the four Talibs were known to the applicant’s family. According to the delegate’s decision record, the applicant knew the Talibs’ parents.
The applicant’s father and brother would run the shop whenever the applicant was at sea. The evidence does not establish the applicant was at sea in March and April 2012 when the applicant asserts his uncle and cousin were under threat and killed.
According to the evidence the shop and the family home in Karachi were known to the Taliban. If the applicant’s evidence is to be accepted, the Taliban would have been able to locate the applicant’s father, the applicant and his immediate family in the event they wanted to address the circumstances in which the four Talibs were arrested, and who may have assisted the authorities to capture the Talibs.
Relevantly, according to the applicant’s evidence the uncle and cousin did not live at the same address as the father’s address.
When the evidence is considered, it seems unlikely the Taliban would have first targeted the applicant’s uncle and later his cousin, rather than initially targeting the applicant’s father and the applicant. The father and the applicant were as a matter of common sense the individuals most likely to be first contacted by the Taliban in relation to the apprehension of their fellow Talibs. This view arises on the applicant’s case.
On the applicant’s evidence, the four Talibs fled from the Swat Valley and sought out shelter in the father’s guest house because they were from Swat, the same area as the applicant’s family, they knew the family and the cultural bonds between the Talibs and the applicant, his father, and their family. In the early hours of the morning, the Talibs were arrested in a targeted raid by the authorities on the father’s guest house. In those circumstances common sense suggests suspicion was likely to fall on the applicant’s father and the applicant. There is no evidence the Taliban even queried the father for information or demanded compensation from him or the applicant in the immediate aftermath of the arrests, or in 2012.

100. There is no evidence that indicates why the Taliban would first seek compensation from the applicant’s uncle and later the applicant’s cousin in the circumstances in which they were arrested according to the applicant’s evidence. Relevantly, the uncle and cousin did not live at the address where the applicant and his father lived. Common sense and the natural course of human experience suggests it is more plausible that the applicant’s father and the applicant would have been the more likely initial targets for compensation rather than the uncle and cousin, if Taliban activists were apprehended when they were hiding in the father’s guest house
101. Relevantly, the applicant does not contend the Taliban targeted and killed either the uncle or the cousin because they were members of the ANP, and the evidence does not satisfactorily establish that it was reasonably likely the uncle and cousin were targeted because they were members of the ANP.
102. According to the applicant’s case the demands for compensation that led to the death of the uncle and cousin were not random demands: the deaths were the direct result of the uncle and cousin not compensating the Taliban for the arrest of the four Talibs in the guest house.
103. On balance, it seems more realistic that the Taliban would first engage with the persons who were likely to have known of the presence of the Talibs in the father’s guest house, namely the applicant’s father and the applicant.
104. The applicant sought to substantiate his claim that the Taliban sought compensation from his uncle and cousin, and later sought compensation from himself by producing to the primary decision maker and the Tribunal, two First Information Reports (FIRs) that purport to be copies of official police reports. The documents are said to be copies of police reports made in respect to the death of the applicant’s uncle, [Mr A] on [date] March 2012 and the death of his cousin [Mr B] on [date April] 2012.
105. According to the evidence, the applicant asserts that all his documents are genuine documents, including the FIR reports, and his documentation was not obtained corruptly.
106. According to the English language translation FIR document relating to the death of [Mr A], a relative reported the murder to the police. He informed the police that the deceased was a sympathiser of the ANP. He also informed the police that the deceased was shot and killed ‘due to unknown reasons.’ The document is dated 22 March 2012.
107. According to the English language translation of the FIR document relating to the death of [Mr B], his elder brother reported the death to the police. The deceased was said to be a government employee who was working at a [workplace]. The deceased’s brother reported the deceased was killed by unknown persons for unknown reasons. The document is dated 26 April 2012.
108. The apparent purpose of making the reports was to inform the police about the deaths and to assist police to investigate the deaths. Neither FIR mentions that either the uncle or cousin were targeted by the Taliban or subjected to demands of money and death threats from the Taliban. There is no evidence that the applicant or his father sought to assist the police by informing them about the uncle and cousin being targeted by the Taliban because they assisted the authorities to locate and arrest four members of the Taliban.
109. The Tribunal gives regard to the DFAT country information report (2022) in relation to document fraud in Pakistan. It is consistent with information taken from the DFAT country information report 2016, that is contained in the copy of the record of the delegate’s decision provided to the Tribunal by the applicant.
110. DFAT (2022) states that document fraud is widespread in Pakistan: [5.52]. The FIRs before the Tribunal are copies of handwritten copy documents. The English translations of both documents have an ‘attestation stamp’ affixed to them. Each FIR is stamped with words that demonstrate the Ministry of Foreign Affairs is not responsible for the contents of the stamped documents.
111. The handwritten documents are simple documents, and they exhibit no security features or other indicators capable of satisfying the Tribunal the FIRs are genuine documents. The fact the information that accompanies the signature of the persons who ‘countersigned’ the English translations of the FIRs, does not accept responsibility for the contents of the translated documents it relevant. The Tribunal considers that the translations do not weigh in favour of finding the FIRs to be genuine documents.
112. DFAT further reports in relation to FIRs at [5.54]:
FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.

113. The DFAT report about the unreliability of FIRs combined with the Tribunal’s doubts about the plausibility of the applicant’s evidence of the Taliban initially demanding compensation from the uncle and cousin, rather that the applicant’s father and the applicant, weighs against accepting the applicant’s evidence that members of the Taliban were apprehended in the father’s guest house.
114. Relevantly, there is no evidence that the Taliban communicated with the applicant’s father after the Talibs were apprehended, a reasonably likely response by a vengeful group of individuals, if in fact members of the Taliban were apprehended while they were staying in his guest house.
115. The Tribunal’s doubts about the reliability of the applicant’s evidence about members of the Taliban being arrested in his father’s guest house, is influenced by the absence of evidence that satisfied the Tribunal of the existence of a reasonable likelihood the Taliban would attribute responsibility for the apprehension of the four Talibs in the father’s guest house, and make a first instance demand for compensation of the uncle followed by the cousin, rather than initially targeting the applicant’s father, the applicant or both.

116. The applicant provided a document that purports to be a death certificate properly issued by the responsible authority on 30 April 2012 certifying [Mr B] died in hospital on [date April] 2012. The document is a simple document which exhibits no identifiable security features or other features that demonstrate the document is likely to be a genuine document. According to the applicant’s evidence at hearing the document was obtained by the deceased’s brother. The applicant telephoned his brother and he obtained the document for the applicant.
117. Considering the DFAT country information report (2022) states that document fraud is widespread in Pakistan; the simple appearance of the document and the absence of any identifiable security features or other features that demonstrate the document is likely to be a genuine death certificate, or that the document is unlikely to be the product of document fraud; the applicant’s evidence that the document is genuine; the contents of the document and how it came into the applicant’s possession: the Tribunal is not satisfied the document is genuine. Accordingly, the Tribunal gives neutral weight to the death certificate.
118. In oral evidence the applicant claimed that he was a member of the ANP in Pakistan and for that reason he was at risk of being harmed or killed by the Taliban if he returned to Pakistan. The applicant asserted in evidence members of the ANP and the Taliban are opposed to each other and the Taliban targets members of the ANP.
119. The applicant supported his claim to be an active member of the ANP and that his uncle [Mr A] and his cousin [Mr B] were active members of the ANP with a document that purports to be on the letterhead of the ANP. The name [name], [position], Awani National Party (Sindh), Cell [number] and signature form the signature block of the document. The document purports to have been written and signed on 5 July 2019.
120. Additionally, the ANP document is relied on to support the applicant’s evidence that his uncle, [Mr A] and cousin [Mr B] were killed by terrorists in Karachi. The applicant also relies on the document to support his evidence that he paid 50 Lakh Rupees in response to telephone and written threats to kill him if he did not pay that money.
121. The ANP document does not say the Taliban is suspected of involvement in the death of the applicant’s uncle and cousin or blackmailing the applicant.
122. According to the applicant’s oral evidence he informed the Tribunal that he obtained the document by contacting unnamed party leaders in Karachi who sent the document to him in Australia.
123. It is evident that the applicant does not contend he had difficulty in obtaining the document once he set about obtaining it.
124. The applicant did not claim before the primary decision was made to be a member of the ANP and that his uncle and cousin were members of the ANP.
125. The applicant did not claim before the primary decision was made that the Taliban target members of the ANP and for that reason, as a member of the ANP and a family that comprised active members of the ANP (uncle and cousin), he was at increased risk of being targeted by the Taliban. Further, the applicant did not claim before the primary decision was made that his uncle and cousin were targeted by the Taliban because they were members of the ANP.
126. Furthermore, the applicant did not present the ANP letter in evidence or a letter to the same effect from the ANP, before the primary decision was made.
127. The Tribunal asked the applicant for his explanation for not providing a document from the ANP leadership as part of his initial application. The substance of his response was that he was not asked for documentation and his representative did not tell him to obtain it. The Tribunal asked the applicant his reason for putting the document before the Tribunal. In substance the applicant responded that he provided the document to the Tribunal because he realised he was a member of the party and supported the party.
128. To summarise the significance of the ANP document to the applicant’s claims, according to the letter the applicant is at risk of being harmed by the Taliban because he is an active member of the ANP. Two members of his family who were active members of the ANP were killed by terrorists in Karachi. The letter opines that the applicant has been targeted, subject to blackmail and death threats. He was compelled to leave Pakistan because he was at risk of sharing the same fate as other party workers who have been threatened and killed.
129. The applicant relies on the letter as evidence that the applicant and his uncles were active members of the ANP and that the applicant is at risk of serious harm or death due to his membership of the ANP. The letter is also relied on as inferential support for the applicant’s claim to be at risk of harm from the Taliban because he reported the location of the four Talibs to the authorities.
130. The applicant did not claim or advance evidence before the primary decision was made that he was a member of the ANP or that his uncle and cousin were active members of the ANP.
131. Considering the significance of the ANP letter and contents to the applicant’s protection claims, in applying s 423A of the Act, the Tribunal is not satisfied his explanation for not presenting the letter before the primary decision was made is a reasonable explanation. Consequently, the Tribunal draws an inference adverse to the claim that the applicant was a member of the ANP. The Tribunal also draws an inference unfavourable to the credibility of the facts and opinions stated in the ANP letter, including the opinion that the applicant’s life was threatened and to save his life he should be permitted to remain in Australia.
132. The Tribunal inquired of the applicant his reason for not raising his membership of the ANP in his initial visa application. His claim needs to be considered in the context of the applicant’s evidence at hearing that he knew members of the ANP were targeted by the Taliban.
133. The applicant expressed uncertainty as to why he did not raise his membership of the ANP in his initial application.
134. Considering the relevance to the applicant’s case of his membership of the ANP, that it is a factor that increased his risk of being harmed by the Taliban, in applying s 423A of the Act, the Tribunal is not satisfied the explanation the applicant gave in the second hearing for not raising the claim to be a member of the ANP in his written visa application is a reasonable explanation. The applicant’s evidence in the first hearing also has a bearing on this consideration.
135. When asked at the first hearing to bear in mind the principles of the ANP that may make members of the ANP a target of the Taliban and to explain why they were targeted by the Taliban, in summary the applicant responded that he cannot comment on why members of the ANP were targeted by the Taliban, but the leadership of the party may be able to comment on that. It is reasonable to expect the applicant, if he was a member of the ANP, to have given direct evidence that displayed a reasonable level of appreciation of the reasons for the Taliban targeting members of the ANP. He did not do so.
136. The forgoing considerations relating to the applicant’s membership weigh against accepting he was a member of the ANP.
137. On balance, the Tribunal finds the applicant has not provided a reasonable explanation why he did not claim to be a member of the ANP and provide supporting evidence, such as the ANP document in issue before the primary decision was made. Accordingly, the Tribunal draws an inference unfavourable to the credibility of the applicant’s claim that he was a member of the ANP. Further, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant was a member or active supporter of the ANP, or that his uncle and cousin were members of the ANP.
138. The applicant relies on two affidavits and a statutory declaration provided by three of his friends in Pakistan to support his claim that he received death threats from the Taliban and the threats forced him to hide in their homes in 2014 and 2015.
139. On the face of the affidavits, one was declared by [Mr E] on 20 June 2019, the other was sworn by [Mr I] on 29 June 2019. The statutory declaration states it was declared by [Mr F] on 1 July 2019. As the Tribunal understands the applicant’s evidence at hearing, he communicated with each of these friends separately. He asked them to provide the affidavits. There is no evidence that the applicant experienced any difficulties in obtaining the documents from his friends.
140. The applicant asserts he asked his friends to provide the documents because he was asked by the Department of Immigration about statements from the persons he lived with when he was hiding. The applicant participated in a Departmental interview on 23 October 2017. The delegate of the minister refused the visa application on 5 January 2018.
141. Each document was attested to on different dates. The substantive parts of each document are expressed in language that was almost identical in relation to the same subject matter, namely that the applicant was receiving death threats from terrorists in 2014 and 2015 and he stayed separately with each of his friends on several occasions to save his life.
142. In the first hearing the Tribunal asked the applicant to respond to the concern that the terms of each of the documents seem to be very similar. The substance of the applicant’s response was that he stayed with his friends at different times. They do not know the times and dates and neither does he. The Tribunal returned to this matter in the second hearing. The similarity in the language used in the three documents led the Tribunal to be concerned that the documents were the product of collusion between the applicant and his three friends and may not be credible documents.
143. To demonstrate the point the Tribunal will provide non-exhaustive limited extracts from each document. In relation to the applicant the affidavits of [Mr E] and [Mr I] both state: ‘solemnly declare that [the applicant] ……is my friend. I know him and his family for a long period of time. In 2014 and 2015, when he was receiving threats from terrorists, he stayed with me on a number of occasions to save his life. He was hiding from them.’
144. The statutory declaration deals with the same subject matter in language that varies only slightly from the language used in the affidavits: ‘…certify in writing that [the applicant]…is my friend. I have known him and his family for a long time. When he was receiving threats from terrorists in 2014 and 2015, he stayed with me on many occasions in order to save himself. This is because he was hiding from them.’
145. The Tribunal told the applicant that the common features of the three documents raised a concern that the documents were the product of collusion and invited the applicant to comment. The applicant responded that his friends may have contacted each other about what to write. Considering that the applicant asked each of his friends for the documents, the applicant’s evidence did not allay the Tribunal’s concern that the document may be the product of collusion, and that each document may not reliably state each deponent’s independent recollection of the facts and circumstances to which they have deposed.
146. The two affidavits and the statutory declaration were not presented in evidence before the primary decision was made. The Tribunal asked the applicant to explain why that was the case. The applicant provided several responses to the Tribunal’s concern. His first response was that he does not remember. When questioned further on the matter, the applicant’s evidence was that he did not have the information and that he does not remember. Considering the significance of the contents of the documents to the applicant case, the Tribunal is not satisfied the applicant has provided a reasonable explanation for not presenting the documents before the primary decision was made. In applying s 423A of the Act to the evidence, the Tribunal draws an inference unfavourable to the applicant’s claim and evidence that he was hiding in Pakistan in fear the Taliban would attempt to kill him.
147. The applicant provided to the Tribunal an additional affidavit for the purpose for supporting his claim to have borrowed money to satisfy the Taliban’s demands for compensation. In this regard the applicant provided to the Tribunal the affidavit of [name] which declares he lent the applicant ‘Rs.300.00 (three lakhs) so that he could save his life.’ The applicant did not present this affidavit before the primary decision was made. The applicant explained he did not provide the affidavit as part of his initial protection visa application. He said he was not asked for it and he did not have any information as well.
148. In considering whether the applicant has given a reasonable explanation for not providing the affidavit to support his evidence that he borrowed money to satisfy the Taliban’s first demand for compensation, the Tribunal has given regard to the fact that the applicant was assisted by his duly appointed representative in the preparation of his application for the protection visa.
149. The Tribunal has also given regard to what the applicant relevantly said in his written visa application and supporting statutory declaration. He said, ‘It was not a small amount but for the sake of mine and the lives of my family members, I arranged and paid the money to them.’ This is a vague statement that lacks specific details about what was entailed in arranging the money.
150. It is also evident that the importance of paying the Taliban money to protect himself and his family from harm was an important part of the evidence he relied on to substantiate his protection claims. The applicant’s statutory declaration demonstrates the subject was raised with his representative well before the primary decision was made. The applicant has not satisfactorily explained why he did not expressly state that he borrowed funds from [Mr D] to pay the Taliban and present the supporting affidavit before the primary decision was made.
151. The applicant had sufficient time to obtain supporting evidence from Pakistan. He submitted his application for a protection visa on 30 March 2016, he participated in a Departmental interview on 23 October 2017 and his visa application was refused on 5 January 2018. The affidavit relating to the borrowed funds is dated 8 July 2019, well after the visa application was refused.
152. According to the applicant’s evidence when he contacted his friends, the leaders of the ANP or his brother for documentation it was provided to him. There is no evidence that it was difficult for him to obtain documents from Pakistan once he asked for them. The Tribunal is of the view the applicant had sufficient time to obtain an affidavit from [Mr D] and present it before the primary decision was made.
153. The applicant’s contention that he paid money to the Taliban was important for the purpose of establishing that the Taliban demanded he pay compensation for the arrest of the Four Talibs and that he would be harmed by the Taliban if he is returned to Pakistan.
154. The Tribunal is of the view that if the applicant in fact borrowed money from [Mr D], in the context of preparing his visa application and referring in the application to arranging the money to pay the Taliban, it is likely he would naturally include a clear statement that he borrowed money from [Mr D] to make the payment. He did not do so.
155. Upon considering the contents of the affidavit of [Mr D] in the context of the forgoing consideration of the failure of the applicant to name [Mr D] in his initial visa application and to clearly state that he borrowed the money from him to compensate the Taliban, and his explanation for not presenting a supporting affidavit before the primary decision was made, the Tribunal draws an inference unfavourable to the credibility of the facts and circumstances stated in the affidavit of [Mr D].
156. On balance, the evidence considered to this point is insufficient to satisfy the Tribunal that the applicant borrowed money from [Mr D], or that he made any other arrangements to pay money to terrorists.
157. The applicant relies on a document that purports to be a sale agreement entered into on [date February] 2016 between the applicant and a named person, as evidence that he sold the property described in the agreement. The property that is the subject of the agreement is described as a house situated at a given address in Karachi. According to the applicant’s case the relevant house and shop were sold before the family moved to Swat, and before he left Pakistan on [date] November 2015 to join the ship that he deserted in Australia on [date] February 2016.
158. Furthermore, in the applicant’s initial visa application he asserted that in response to the Taliban increasing its attacks on their opponents ‘we sold our house and shop in Karachi and my family members went to Swat to our family home for safety purposes. I remained in Karachi and frequently changed my addresses.’ In evidence in the first hearing the applicant said his father purchased a building in which he established a shop that sold [goods] for the applicant to operate. The applicant ran the shop until he became a seaman. Thereafter the applicant’s father and brother ran the shop during his absences at sea. The applicant invested money in the shop so that he owned the business with his father.
159. The applicant also gave evidence that his father owned the house in Karachi he lived in with his wife and the applicant shared his father’s house with his parents, wife, and children.
160. As the Tribunal understands the applicant’s oral evidence, the property in Karachi that was sold to pay a ‘ransom’, meaning compensation, to the Taliban occurred before the applicant left Pakistan in November 2015. It is evident that this aspect of this evidence is materially inconsistent with the applicant’s written application.
161. The applicant did not state in his written application that he owned a house in Karachi.
162. According to the written application the family house was sold as part of the family’s exit from Karachi to Swat in 2015 to escape the danger of Taliban attacks on their opponents, as distinct from selling real estate to pay a ‘ransom’ to the Taliban.
163. Furthermore, in substance the applicant contends that the family home and the shop were sold before the applicant left Karachi in November 2015. That evidence is materially inconsistent with the terms of the sale agreement. According to the written sale agreement the applicant agreed to sell a house in Karachi on [date February] 2016, [number of] days before this ship berthed in [Port 1], Australia.
164. At hearing the applicant said the sale agreement was sent to him by a lawyer after he asked for it. He stated the sale occurred between 2014 and the middle of 2015. He also referred to property sales being mostly oral agreements and money is usually paid in cash.
165. The Tribunal is not able to reconcile the applicant’s evidence about the sale of the family house and shop in Karachi occurring in either 2014 or 2015, the date of the written sale agreement being [date February], and on that also being the date the applicant was on board a ship off the coast of Australia. Additionally, the applicant has not clearly asserted in oral evidence that he owned a house registered in his own name in Karachi.
166. Considering the DFAT country information report that states document fraud is widespread in Pakistan, and the stated date on which the applicant is said to have sold the house described in the sale agreement, that the applicant was at sea on that date, and the applicant’s evidence at hearing relating to the sale of real estate in Karachi, the evidence is insufficient to establish to the satisfaction of the Tribunal that sale agreement is a genuine document.

167. On balance, the evidence is insufficient to satisfy the Tribunal that the applicant owned the house referred to in the sale agreement, or that he owned real estate in Pakistan, or that he used proceeds from the sale of real estate to compensate the Taliban for the arrest of the four Talibs.
168. The Tribunal has considered the accounting records said to relate to the operation of the shop in Karachi. The records are untranslated and mostly written in a language other than English. The Tribunal has also considered the applicant’s evidence concerning the documents and finds the documents are not material to the applicant’s claims. The Tribunal accepts the shop existed in Karachi; the applicant operated the business when he was not at sea; and his father and brother operated the shop in his absence. The Tribunal gives the documents and related evidence no weight.
169. In determining whether the applicant faces a real chance of serious harm from the Taliban it is relevant to consider that his parents, wife, and children moved from Karachi to Swat.
170. According to the applicant’s written claims, in 2015, after selling their house in Karachi and the shop and premises, the family relocated from Karachi to their family home in Swat to be safe from the Taliban. According to the applicant’s evidence the four Talibs arrived at their home in Karachi because they knew the applicant’s family in Swat. Considering the DFAT country information report and the country information provided by the applicant, it is evident the Taliban have had an active presence in Pakistan including in Swat for extended periods of time since the applicant’s family returned to the family home in Swat. During that time the Taliban have committed atrocities, including revenge attacks on their opponents.
171. It is important to recall here the applicant’s claims that after his uncle and cousin were murdered, the Taliban informed him in writing in mid-2013, that the Taliban’s anger towards the applicant and his family had peaked because of the arrest of the four Talibs that occurred at his place ‘due to the support of our family with security forces and they do not want to see a single remaining person of our family alive.’[18] To avoid death, he must compensate the Taliban for the capture of the four Talibs.
[18] Department file, applicant’s statutory declaration [11].
172. If the applicant’s evidence is accepted that the four Talibs were from Swat and known to the applicant’s family, it is reasonable to infer that the return of the applicant’s family to Swat would have come to the attention of the Taliban and they were likely to have been harmed by the Taliban. There is no evidence of the Taliban threatening the applicant’s father – the owner of the property in which the Talibs were apprehended – after he returned to Swat. The applicant gave evidence that his wife informed him that his children were recently asked when they were walking to school about their father. A few days later stones were thrown at their house. The evidence does not satisfactorily link these incidents to the Taliban. The incidents are not anything approaching the nature of the reprisals that applicant claims he and his family faced because the Taliban holds him and his family responsible for the arrest of the four Talibs, and he failed to meet one of their demands for compensation. The evidence does not satisfactorily establish the Taliban was responsible for either of these incidents.
173. Considering the applicant’s evidence about the brutal way the Taliban treat people they say informed on them to the authorities, or who failed to meet their demands; the evidence of the Taliban’s written reasons for targeting the applicant and his family; and, the evidence and country information about the active presence of the Taliban in Swat and throughout Pakistan: the Tribunal considers it unlikely the applicant’s father, or other members of his family would have escaped being harmed by the Taliban in Swat, if the four Talibs were arrested in the father’s guest house. There is no evidence that satisfies the Tribunal that the applicant’s family have been threatened with harm or harmed by the Taliban after they returned to Swat.
174. The applicant submitted to the Tribunal three psychological reports written by a clinical psychologist, [Mr C]. The first report is dated 30 March 2021. It was prepared for the purposes of this review. The second report is dated 17 March 2022. The third report is dated 27 November 2022. [Mr C] is now retired.
175. According to the first report the applicant was referred to [Mr C] by his general practitioner [under] a GP Mental Health Treatment Plan. The purpose of the consultations was to improve the applicant’s mood and reduce his anxiety and depression. [Mr C] obtained a case history from the applicant:
Relevant history: [The applicant] sought asylum in Australia from religious persecution as he believed he would be a target of the Taliban had he stayed in Pakistan. His developed anxiety when in Pakistan due to the stress he experienced daily fearing for his safety. [The applicant] remains very anxious in particular about the prospect of being required to return to Pakistan where he feels he will be being subjected by the Taliban to capture, persecution and death.

176. Later in the report [Mr C] opines that ‘because of his fixed personal beliefs, no matter where it was proposed [the applicant] returned to Pakistan his mental health would worsen.’ Read in context the reference to fixed beliefs seems to be referring to the applicant’s religious beliefs making him a target of the Taliban throughout Pakistan.
177. [Mr C] stated his second report updates his first report. Under the heading ‘Relevant history’ [Mr C] again said the applicant sought asylum in Australia from religious persecution.
178. Considering the applicant has not claimed in his initial visa application or in his evidence in this review protection from the Taliban for reasons of religion, the Tribunal was concerned about what [Mr C] said about the applicant being targeted because of his religious beliefs. This concern was discussed with the applicant’s representative at the first hearing. At that time the Tribunal informed the representative it was inclined to threat the reference to religious persecution as [Mr C]s’ mistake. After that hearing the Tribunal informed the applicant that the Tribunal reconsidered and was not inclined to treat the reference to religion in the applicant’s case history as a mistake. Accordingly, the Tribunal wrote to the applicant in compliance with the requirements of s 424A of the Act inviting him to comment on the reference to religious persecution in the [Mr C] reports.
179. In response to the s 424A invitation the applicant stated in a statutory declaration that he never discussed religious persecution with [Mr C]. The applicant stated that he told [Mr C] the Taliban were ‘after me and killed my uncle and cousin, and further told him I was having sleeping problems and nightmares because of this.’ The applicant also stated that he told [Mr C] ‘anyone the ANP party or anyone that complains against the Taliban is targeted.’ These factors are not said by [Mr C] to form any part of the case history he took from the applicant.
180. [Mr C] does not refer in his first or second report to the applicant’s psychological state being affected by sleep deprivation and nightmares about the murder of his uncle and cousin. He makes no reference to the applicant’s psychological state being caused by a fear he is has been targeted by the Taliban because of his membership of the ANP, and that he and his relatives were classified by the Taliban as informers and deserved be killed.
181. In [Mr C]’s third report, apparently written after he retired from practice, he seeks to explain why he stated the applicant told him he sought asylum in Australia from ‘religious persecution’.
182. [Mr C] states he unintentionally misused the term ‘religious persecution.’ He reasoned that his misuse of the words was because he misunderstood them. He also reasoned that by religious persecution he meant the applicant feared he would be persecuted by the Taliban for holding beliefs contrary to those of the Taliban. He stated: ‘I was unaware of the difference between political persecution and religious persecution.’
183. The Tribunal regards the essential features of [Mr C]’s explanation for attributing to the applicant that his reason for seeking asylum in Australian was religious persecution calls for scrutiny.
184. Essentially, [Mr C] asks the Tribunal to accept that he did not know persecution for reasons of a patient’s religious beliefs was different from being persecuted for reasons of political beliefs. The difference between religious beliefs and political beliefs and persecution based on either one of those sets of beliefs is self-evident. The words ‘religious persecution’ have a well-established, and well understood meaning.
185. According to [Mr C], when he said in both reports that his patient told him he fled Pakistan because he believed the Taliban had targeted him for reasons of his religious beliefs, in fact he told him that he feared persecution from the Taliban because his beliefs were different to the beliefs of the Taliban.
186. The Tribunal finds [Mr C]’s explanation for representing in his expert reports that the applicant fled Pakistan in fear of persecution for reasons of his religious beliefs to be unconvincing. This is a matter of significant concern to the Tribunal, and it weighs against accepting that [Mr C] engaged with applicant’s case with accuracy and rigour.
187. It is of concern to the Tribunal that the explanations offered by [Mr C] in his third report do not refer to him reviewing his clinical notes. He does not state what he recorded in his clinical notes if anything, or other treatment related records, , about what the applicant said were the events and experiences in Pakistan that made him so fearful that he felt compelled to leave his family in Swat and his home country.
188. [Mr C] has not identified the information he relied on to satisfy himself the applicant did not tell him he sought asylum for reasons of religious persecution. He has not said the change he wished to make to his reports is based on his review of his clinical notes or his independent memory of what the applicant told him. [Mr C] has not disclosed the source of information he relies on change his reports. These matters are of significant concern to the Tribunal.
189. In any case it is reasonable to expect [Mr C], who is put forward as an expert witness, to state specifically whether he referred to his clinical notes to inform him that he had incorrectly attributed to the applicant a fear of religious persecution. He did not do so.
190. The applicant’s description of what he told [Mr C] about his sleep deprivation and the traumatic events said to be the subject of his nightmares, and that [Mr C] does not mention these disturbances, gives rise to a concern about the efficacy of [Mr C]’s opinions; the causes of any psychological disorders affecting the applicant, and his treatment of those disorders. In saying this the Tribunal is presuming the applicant told [Mr C] the case history he described in his s 424A response.
191. [Mr C]’s second report, which is said to be an updated report, was made 12 months after the first report. Under the heading ‘Recommended treatment’ in the first and second reports, using almost identical words [Mr C] states, amongst other things, that the applicant’s mental health is continuing to improve.
192. The following paragraph in both reports is headed ‘Impact of current condition.’ The words used in both reports to describe the applicant’s condition at the time of writing are virtually identical with a few slight changes in the wording of a few sentences in the second report. The word differences do not appear to make any material difference to the description of the applicant’s current condition.
193. [Mr C] does not describe in either report the nature of the continuing improvements to the applicant’s mental health that he speaks to in both reports, or the effect of the ongoing improvement to his current condition, the applicant’s treatment plan and his prognosis.
194. In reading the description of the applicant’s condition as [Mr C] found it to be in 2021 and again in 2022, there has been no apparent change to his condition despite [Mr C]’s opinion that the applicant’s mental health has continued to improve during that treatment period.
195. [Mr C] opines that the applicant requires psychological therapy and medication for the foreseeable future.
196. Under the heading ‘Recommended treatment’ [Mr C] included this paragraph; it is the same in both reports. He opines:
Continuing to live and work within Australia, with ongoing therapy, would be highly beneficial for [the applicant]. For his mood to improve he requires prolonged sanctuary in safe and secure circumstances unburdened by the prospect of being required to return to Pakistan.

197. As the Tribunal understands [Mr C]’s opinion, for the applicant’s mood disturbance to improve, he needs to be permitted to remain in Australia. [Mr C] also opines that the applicant’s psychological condition is largely dependent on him continuing to live and work in Australia. These factors seem to be contingent on the ultimate outcome of the applicant’s visa application not the outcome of the applicant’s treatment plan.
198. In reading [Mr C]’s reports as whole, his clinical assessment of the applicant’s psychological state and his prognosis derives from accepting the applicant genuinely believes he was targeted by the Taliban. Additionally, that the applicant genuinely believes the Taliban will pursue him throughout Pakistan, and that he will not be safe anywhere in Pakistan.
199. Considering the Tribunal’s concerns about [Mr C]’s reports and his opinions, and the Tribunal’s concerns about the reliability of the applicant’s evidence about being compelled to leave Pakistan because he was targeted by the Taliban, the Tribunal does not consider [Mr C]’s opinion that the applicant believes we was and will be targeted by the Taliban, and that the applicant suffers from a psychological condition, to be persuasive evidence that:
·The applicant genuinely believes he was targeted by the Taliban and that he would be targeted by the Taliban if he is returned to Pakistan;
·The applicant was targeted by the Taliban and that he would be targeted by the Taliban if he returns to Pakistan.

Findings of fact
200. The evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal that:
·four members of the Taliban were apprehended in a guest house owned by the applicant’s father;
·the applicant reported the presence of members of the Taliban in the father’s guest house to his uncle and cousin;
·the applicant’s uncle and cousin were targeted by and killed by members of the Taliban because they reported the location of members of the Taliban to the authorities;
·the applicant was targeted and threatened with death by the Taliban, and he was the victim of any demands for money due to the apprehension of members of the Taliban on his father’s property, or for any other reason;
·the applicant’s father sold real estate held in his name in Karachi before moving to Swat to escape a risk of being harmed by the Taliban;
·the applicant owned and sold the house that is the subject of the sale agreement with the date [date February] 2016;
·the applicant paid money to the Taliban;
·the applicant was in hiding from the Taliban before he left Karachi to join the crew of the ship he deserted in [Port 1];
·the applicant’s uncle and cousin were members of the ANP;
·the applicant was a member of the ANP;
·the applicant was a political activist in Pakistan or that the applicant is likely to come to the attention of the authorities in Swat for political reasons;
·the applicant’s children were spoken to because the applicant has been targeted by the Taliban, and that some days later stones were thrown at the family home in Swat because the applicant has been targeted by the Taliban.

201. The evidence establishes the applicant is experienced in business, having run a shop, described by the applicant in evidence as famous, since leaving school. The applicant was a seaman repeatedly reemployed as a crewman. When he was not at sea, he ran the shop in Karachi.
202. The Tribunal accepts the applicant invested in the shop as a business, and jointly owned the business with his father. The title to the shop was in the name of the applicant’s father.
203. Shortly after arriving in Melbourne, the applicant has been consistently employed. At the date of the first hearing the applicant had accumulated approximately $60,000 in savings. He sends approximately $2000 to $3000 per month to his family in Pakistan, depending on their needs.
204. The evidence indicates the applicant is an able employee, capable of sustaining long- term employment in Australia. He is able to competently manage his financial affairs, accumulate significant savings and consistently provide financial support to his family in Pakistan.
205. The applicant’s evidence at hearing about his employment in Australia does not establish that his mental health has had a deleterious effect on his ability to work and to manage his financial affairs.
206. Considering the applicant’s successful business in Pakistan, his experience as a seaman, his long-term employment in Australia and his ability to manage his financial affairs, it is difficult to accept as credible the applicant’s reported assertion to [Mr C] (see the [Mr C] reports) that he regards himself as unskilled and that this would be a factor that would prevent him from finding work in Pakistan. The Tribunal does not accept the applicant is an unskilled person who for that reason would be unable to sustain himself in Pakistan.
207. [Mr C] opines that the applicant’s mental health will suffer if he is returned to Pakistan to the point that he will probably become extremely psychiatrically unwell. A difficulty with this opinion is that [Mr C] is not a qualified psychiatrist, and the Tribunal does not accept that he is an expert in the field of psychiatry. He is a clinical psychologist.
208. [Mr C]’s diagnostic overreach, combined with the concerns referred to in this decision about [Mr C]’s reports, means the Tribunal is not persuaded by his reports, considered in combination with the applicant’s evidence about his employment history, that the applicant’s mental health would result in the existence of a real chance he would be excluded from the workforce for reasons of his mental health or more broadly, he would suffer serious harm from state or non-state actors because of it.
209. The Tribunal has considered a report written by [Ms H], an employee of [Organisation 1]. The letter has the date 13 December 2022.
210. [Ms H] holds a Graduate Diploma in Counselling and Psychotherapy. No information has been provided about [Ms H]’s undergraduate qualifications or the educational institutional in which she obtained her qualifications. The Tribunal has noted her professional biography. [Ms H] has seen the applicant on two occasions, 22 November 2022 and 1 December 2022. The report provides a narrative of the applicant’s presentation. [Ms H] makes no diagnosis or prognosis in respect of the applicant. The Tribunal gives little weight to the report.
211. The evidence before the Tribunal does not satisfy the Tribunal that the applicant’s mental health is such that his behaviour would attract the attention of state or non-state actors in a way that would expose him to a real chance of serious harm.

212. The applicant is an ethnic Pashtun. Pashtuns are the second largest ethnic group in Pakistan. According to the applicant he was born, raised and educated in Karachi. According to his evidence he lived in the family home with his parents and later his wife and children in the Pashtun district of Karachi. His father was able to purchase a home, a separate guest house and a building in which the applicant operated a business that sold household goods. The shop was famous, and the guest house was well known. There is no evidence that the applicant or members of the household suffered discrimination or harm on the grounds of race, or of being excluded from basic services, such as medical treatment, or employment, or suffered business setbacks for reasons of their ethnicity.
213. According to the applicant’s evidence his parents, wife and children returned to Swat to live in the family home in 2014 or 2015. It is well established that Swat has a large Pashtun community. The evidence does not establish that the applicant’s wife, children, father, or mother have been harmed for reasons of their ethnicity or targeted by the military.
214. The evidence established the applicant is supportive of his wife and children in Swat and he has maintained communication with them. There is no evidence that the applicant would be unable to transfer his savings in Australia to Pakistan.
215. The Tribunal has given regard to the DFAT country information report and the country information the applicant provided to the Tribunal. To the extent there is a variation in the information the Tribunal prefers to the information in the 2022 DFAT report.
216. According, to the DFAT report, treatment options for mental health disorders are limited. Fewer than 200 psychiatrists are serving a population of 200 million people. There is no evidence of the applicant being referred to or receiving treatment from a psychiatrist in Australia. During the period the applicant was being counselled with [Mr C] neither he nor the applicant’s general practitioner deemed it necessary for the applicant to be treated by a psychiatrist.
217. The evidence indicates it is reasonably likely the applicant would have sufficient funds to access medical treatment and medication in Pakistan.
Finding
218. The Tribunal has considered the applicant’s claims individually and cumulatively and the evidence and country information that is material to those claims.
219. The evidence does not satisfy the Tribunal that the applicant would be subjected to a real chance of persecution that involves systematic and discriminatory conduct, such as denial of access to medical services; significant physical harassment; significant physical ill treatment; significant economic hardship that threatens his capacity to subsist; or a denial of capacity to earn a livelihood of any kind, where the denial threatens the applicant’s capacity to subsist.
220. The evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance that the applicant will be subjected to serious harm for reasons of his political opinion; his ethnicity; his membership of a particular social group being persons with a mental health condition; his membership of a particular group being persons targeted by the Taliban; for any other reason specified in s 5J(1)(a) of the Act; or for any other reason, if he is removed to Pakistan now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
221. Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other relevant reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out is s 5H of the Act.
Complementary protection
222. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
223. A person will meet that criterion if there are ‘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’.
224. Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.

225. The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 201 FCR 505.
226. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
227. In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A).
228. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
229. In summary, for the reasons given above the applicant does not satisfy the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
230. There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
231. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
Member

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2023] AATA 1100

6 February 2023

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Immigration

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Statutory Interpretation

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