1802179 (Refugee)

[2018] AATA 1524

1802179 (Refugee) [2018] AATA 1524 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802179

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Jason Pennell

DATE:9 April 2018

PLACE OF DECISION:  Melbourne         

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 April 2018 at 10.56am

CATCHWORDS

Refugee – Protection visa – Pakistan – Imputed political opinion – Opposition to the Taliban – Awami National Party – Particular social group – Informant for the military – Forced Taliban recruitment – Kidnapping – Threats of killing – Internal relocation – Credibility issues

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 189, 499

Migration Regulations 1994, Schedule 2

CASES
Januzi v SSHD [2006] 2 AC 426
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZSCA (2014) 254 CLR 317
MIEA v Guo (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

SZATV v MIAC (2007) 233 CLR 18

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 January 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 8 November 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3. The applicant appeared before the Tribunal on 21 March 2018 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Criteria for a protection visa

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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.

3. 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.[1] 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.[2]

   [1] s.5H(1)(a) of the Act

   [2] s.5H(1)(b) of the Act

4. 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.

5. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicants’ migration history

1. [In] July 2012 the applicant’s application for [an offshore humanitarian] visa was refused. [In] February 2013 the applicant’s first student visa [application] was refused. [In] April 2013 the applicant second [student visa] [application] was refused. [In] December 2013 the applicant was granted a visitor [visa]. However, in that application the applicant claimed to be a [Country 1] passport holder. [In] December 2012 the applicant’s application for a [different visitor] visa was refused. [In] May 2016 the applicant was granted a [further] visitor [visa]. However, in that application the applicant claimed to be [a Country 2] passport holder.  [In] May 2017 a [further visitor] visa was refused to an individual named [Alias A] who claimed to be a [Country 3] passport holder. At the time of the applicant’s arrival in Australia he had in his possession copies of a [Country 3] passport and driver’s license bearing his likeness and in the name of [Alias A].[3] 

   [3] Copies of the [Country 3] passport and driver’s license bearing his likeness and in the name of [Alias A] are included in the Department's file ([number]).

2. The applicant arrived in Australia [in] November 2017. The applicant travelled to Australia using a boarding card in the name of his Australian citizen brother [named]. The applicant did not have a valid visa for entry upon his arrival in Australia and when challenged presented his own Pakistani passport. [In] November 2017 the applicant was refused immigration clearance and detained under s.189 (1) of the Act. [Later in] November 2017 the applicant made application for a Safe haven Enterprise Visa (subclass 790).

Country of Reference

1. The Department's file ([number]) contains a photocopy of the applicant's passport No [number] issued on in Pakistan [in] 2016. It shows he was born on [date] in Swat, Pakistan.  There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.

2. Accordingly, the Tribunal finds that the applicant is a citizen of Pakistan and the applicants protection claim will be assessed against Pakistan as the country of reference and 'receiving country' respectively.

3. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

The applicant’s protection claims

1. The applicant claims that he is at real risk of persecution if returned to Pakistan by the Taliban by reason of his work with [Agency 1], his extensive [professional] training, his involvement in the Awani National Party (‘ANP’) and his willingness to resist terrorist groups.   

2. The applicants claims for protection are detailed his statement of claims dated 9 March 2018, further submission dated 18 March 2017 and 27 March 2018. The applicants claims have been detailed in the  in the delegates decision dated 24 January 2018 and by his oral evidence provided at the hearing as follows (‘written claims’):

   (a)The applicant claims that as a result of his traumatic experiences he has great difficulty in recalling specific dates and details. He claims that his mental health has deteriorated because of the tension and anxiety due to the attacks and his time in detention.

   (b)The applicant is Pashtun and a Sunni Muslim. He was born in [Village 1], Swat Valley, Khyber Pakhtunkhwa. He grew up in [Village 1] with his parents and siblings. His father continues to live in [Village 1] and is retired. However, his mother passed away in or about [year]. He has [specified siblings]. He says that [a large percentage] of the population of the village are his relatives.

   (c)The applicant’s family are supporters of the Awami National party (ANP). In March 2008 his mother’s sister’s husband, [Mr A] was kidnapped for a ransom by the Taliban (Tehrik-i-Taliban Pakistan or TTP). His family paid a ransom and he was released after [number] days. In July 2008 his mother’s brother, [Mr B], was killed by the Taliban. The applicant believes that he was killed because of his involvement in the ANP and his association with the police. The applicant claims that his mother’s cousin [Mr C] was a high profile member of the ANP in Karachi. In [year] he was assassinated in Karachi by the Taliban for opposing them. In or about 2015 or 2016 the Taliban fired at the home of another uncle, [Mr D]. His cousin [Mr E] was elected Nazim or local mayor in 2015.

   (d)After completing high school the applicant studied [subject]. He started a [business] in in [Village 1] in or about 2007. At about the same time he also began work at [Agency 2].

   (e)The Applicant’s evidence was that in or about 2008 a Taliban fighter came to his [business] [requesting professional assistance for a colleague]. The applicant said that he refused to [assist them] due to the fact that it was not within his expertise and that it was a police matter. Approximately, two hours later a group of Taliban kidnapped the applicant from his [business] and forced him to [assist]. The applicant says that he was detained by the Taliban for approximately two days. He said that while he was detained he was beaten, his arm was cut and [he sustained another specified injury]. The applicant evidence was that upon being released he was told by the Taliban that they would give him a chance to consider joining them and if he did not they would kill him.

   (f)As a result the applicant closed the [business] and travelled to [Village 2] to stay with a friend. The applicant’s evidence to the delegate was that while he was in [Village 2] the Taliban called him on the mobile phone and threatened him that if he did not join them they would kill him. The applicant returned to [Village 1] after approximately two months.

   (g)In or about 2008 the applicant claims that the Taliban:

   (i)       came to his home and demanded guns and money. The applicant and his family were forced to reallocate to Mingora briefly before returning home to [Village 1]. He claims that while he was in Mingora the Taliban called him on the mobile telephone and once again threatened to kill him if he did not join them.

   (ii)      assaulted the applicant and his friends when they were playing, claiming they should refrain from playing the game as it was a foreign sport.   

   (iii)     stopped the applicant while he was driving to his sister house in Mingora. He said that they forced him to destroy a cassette recorder in his car and promise not to listen to music again.

   (iv)          threw dead [animals] onto the applicants property, and threated that of he did not join the Taliban they would kill him in the same manner that they killed the [animals]. The Taliban also cut the electricity supply to the applicant home and threw stones at his home.

   (h)In early 2008 the applicant’s mother fell ill and the applicant drove her to the hospital. He was stopped at a Taliban checkpoint and told that it would be unlikely that the army would allow them past their checkpoint, but let him continue. The army did in fact stop the applicant. As a result he contacted a close friend, [Mr F], who had influence with the army, to facilitate his trip to the hospital.  [In] July 2009 the Taliban kidnapped the applicant and his friend [Mr F]. The Taliban asked the applicant to explain why the army had allowed him to pass suspecting him to be an army informant. He explained that the army had allowed him to pass because his mother was ill. The Taliban released the applicant the following day. He had been beaten by the Taliban and upon his release he felt unwell. After a few days the Taliban dumped [Mr F’s dead] body by the road side in nearby [location]. 

   (i)In or about 2009 the army commenced military operations against the Taliban forcing the applicant’s family to relocate to Mardan. The family registered as internally displaced persons (‘IDP’) but chose to rent a house rather than stay in an IDP camp.  The applicant claims that he continued to receive threats or the Taliban while in Mardan.

   (j)After some time the applicants family returned to [Village 1]. He claims that the army requisitioned a number of houses on [Village 1] and asked the applicant to identify homes belonging to Taliban members. The applicant claims that he provided army officers information but refused to accompany them to look for homes. The applicant was asked to join the village defence committee, but the applicant declined. The applicant believes that the Taliban knows of his assistance to the military.

   (k)From October 2009 to September 2011 the applicant completed two years education in [subject] at [College 1]. The applicant provided copies of certificates for [College 1] that indicated that he completed both a practical training and diploma course in [subject] during this period. In 2012 he claims that he started working as [an Occupation 1] at [Agency 2] and assisted in a private [business]. While working as [an Occupation 1] the applicant claims that the Taliban offered to make him a commander if he joined them and to kill him if he refused.

   (l)The applicant claims that in or about 2015 he volunteered in the army [support services] for two to three months in which he travelled in convoy with the army and provided [assistance] to civilians.  

   (m)In or about 2016 the applicant started work as a [Program 1] Monitor for [Agency 1]. The applicant’s evidence was that the Taliban was opposed to this work because they regard [Agency 1] foreigners and do not trust them. The applicant said that he received threatening phone calls and two threatening letters from the Taliban demanding that he stop working for [Agency 1] and that they would kill him if he refused. 

   (n)The applicant has been trying to leave Pakistan since 2009 or 2010. The applicant’s brother had been visiting Pakistan due to the fact that [another] brother [named] had died after an illness. The applicant travelled to [another country] and once there took his brother’s boarding pass and travelled to Australia. He claims that his life is in danger and that if he returns to Pakistan he will be abducted and killed by the Taliban or other extremist groups. He claims to be well known in the community and recognisable by the Taliban.  

   (o)The applicant’s evidence to the Tribunal was that he was not a member of the ANP and that he had never held or stood for an official position within the ANP. However, he provided photos of him with members of his family wearing the red hats of the ANP. The applicant’s evidence was that while he was not a member of the party he was closely aligned to the ANP by through his family’s connections to the ANP. As a result he fears harm for his imputed political opinion in opposition to the Taliban and other Sunni militants as a result of his family connections with the ANP and his membership of particular social groups, being an employee of [Agency 1] and as an informant for the military.

3. In support of the applicants claim he provided the following documentation:

   (a)Statement of Claims dated 9 March 2018;

   (b)Written submissions dated 9 March 2018, 20 March 2018 and 27 March 2018;

   (c)[College 2] Detailed Marks Certificate dated [June] 2009;

   (d)[College 2] Renewal of Diploma dated [in] July 2009;

   (e)[College 2] Pakistan, Diploma in [subject] Session 2006-07;

   (f)Board of Intermediate and Secondary Education Secondary School Certificate dated [year];

   (g)Birth certificate;

   (h)N.W.F.P Swat District  Domicile Certificate No [number];

   (i)[Training program] Certificate dated [in] November 2015;

   (j)[College 3] Diploma in [subject] session 2010-2011;

   (k)[College 3] [subject] results;

   (l)Board of Intermediate & Secondary Education [location] Swat Session [year] No [code];

   (m)[College 4] dated [May] 2020;

   (n)International Certificate of [Qualification] dated [in] October 2017;

   (o)[College 5] dated [in] December 2006;

   (p)[College 1] Course of Completion Certificate  [subject] 1 October 2009 30 September 2011;

   (q)[College 4] Diploma in [subject]  Serial No [number];

   (r)[Agency 3] Experience certificate dated [in] December 2006;

   (s)[College 1]  Course Completion Certificate [subject] [dated from] January 2010 to [December] 2010;

   (t)[College 1]  Practical Training Certificate 1 [between dates in] 2010;

   (u)UNHCR Temporary Card for IDPs;

   (v)UNHCR Registration and Ration card for IDPs;

   (w)Various photos.

COUNTRY INFORMATION

1. In considering the applicants claim the Tribunal has considered the country information available in relation to Pakistan, including the Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 1 September 2017 (the DFAT Report’).

Security Situation

1. The DFAT Report states that Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. [4]  It states that the security situation can vary across the country but notes that Khyber Pakhtunkhwa and the FATA experience relatively higher rates of militant and sectarian violence.[5]

   [4]    Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 1 September 2017 (‘DFAT Report’) @ p.8

   [5]    DFAT Report @ p.8

2. The DFAT report states that:[6]

   2.31In June 2014, the Pakistan Armed Forces launched Operation Zarb-e-Azb, a major offensive against terrorist groups across the country. Operation Zarb-e-Azb initially targeted terrorist groups in North Waziristan in the FATA , including the Tehreek-e Taliban Pakistan (the Pakistani Taliban or TTP), and gradually spread to other parts of FATA and Khyber Pakhtunkhwa province, with smaller, intelligence-based operations taking place across the country. The term Zarb-e-Azb has also expanded to refer to operations by the army and the Rangers, a paramilitary security force, in Balochistan and Karachi against various other terrorist, separatist and criminal groups. The operation reportedly resulted in the deaths of 3,500 suspected terrorists and 490 military personnel during its first two years.

   2.32In December 2014, an attack on a school in Peshawar resulted in the deaths of 140 people, including 132 children. The attack led to the government introducing a National Action Plan (NAP), which, along with Operation Zarb-e-Azb, forms a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. Among other measures, the NAP: ended Pakistan’s unofficial moratorium on the death penalty; established military courts to try suspected militants; clamped down on sources of finance for militant organisations; took measures to restrict hate speech; and committed to implementing administrative and development policy reforms, particularly in the FATA.

   2.33Operation Zarb-e-Azb and the NAP are credited with a significant reduction in the number of violent attacks in Pakistan. According to the South Asian Terrorism Portal, more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013. Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians. More than 20,000 civilians have died in terrorism-related violence since 2007. These statistics largely derive from news reports, and may understate the number of casualties.

   2.34The government and military operations have disrupted the activities of militant groups and thousands of militants have been killed, including the high-profile leader of Lashkar-e Jhangvi (LeJ), Malik Ishaq, in 2015. Military courts have tried and convicted thousands of people with links to terrorist organisations. However, militant groups remain active across Pakistan, despite their more limited access to former safe-havens in Khyber Pakhtunkhwa and North Waziristan. These groups continue to attack government and sectarian targets. Groups such as the TTP have splintered into several offshoot organisations; while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats.

   2.35Operation Zarb-e-Azb initially led to the displacement of around 1.6 million civilians, primarily in FATA and Khyber Pakhtunkhwa. According to the UN Refugee Agency (UNHCR), there are around 750,000 registered internally displaced persons (IDPs) in Pakistan, the vast majority of whom are living in host communities (less than one per cent are living in camps). DFAT understands that large numbers of IDPs have returned to their villages following the improvements to the security situation, although there are credible reports of houses and cropland having been destroyed in the fighting. Operation Zarb-e-Azb continues to restrict people’s movement in and around the FATA and western Khyber Pakhtunkhwa. While designed to hamper the mobility of militants, it also has a significant impact on the ability of the local populations to access services, livelihoods and markets.

   2.36Several interlocutors in Pakistan told DFAT that the underlying conditions for militancy—particularly weak judicial and law enforcement institutions and economic under-development—have not been addressed, and speculated that violence would likely increase again after a period of relative calm.

Militant Groups[7]

[6]    Ibid

[7] DFAT Report @ p.11

1. Independent sources indicate that although military authorities now control the Swat Valley, terrorist attacks against Pakistani military operations continue to occur in the area and that there was a deterioration in the security situation in Swat during 2012[8].  Despite military claims to have cleared the Taliban from Swat after the 2009 offensive, there are many indications that militants are still active in the area.[9] There have been complaints by residents that, although arrests have been made, no further action has been taken against militants.[10]

   [8]    Buneri S 2012, ‘Pakistan’s Swat Valley: Taliban Gone But Peace Remains Elusive, Pulitzer Center on Crisis Reporting < Department of Foreign Affairs and Trade 2012, ‘Travel Advice: Pakistan’, Smarttraveller website, 16 November Security Forces Detain Five in Nowshera Over Attack on Malala’, 2012, Dawn Newspaper, 12 October, ‘Pakistani Army Strategy in Question After Attacks’, 2012, Dawn Newspaper, 22 October, Khaliq. F, 2012, ‘Reviving Tourism: Impressed on Swat Valley, EU Envoys Stress on Better Security, Communications’, Express Tribune, 22 April,   Khaliq, F. 2011, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September <

   [10]   Buneri S 2012, ‘Pakistan’s Swat Valley: Taliban Gone But Peace Remains Elusive, Pulitzer Center on Crisis Reporting <

2. According to the South Asia Terrorism Portal’s Khyber-Pakhtunkhwa Assessment for 2012, “militants appear to have established an upper hand in the region in their fight against the state’s forces”. SATP gives the following figures for the death rate in KPK as a whole in 2011 and 2010:

   ‘[A] total of 1,206 persons, including 511 civilians, 364 militants and 331 SF [security force] personnel, were killed in 242 incidents of killing recorded in 2011, marginally down from 1,212 persons, including 607 civilians, 509 militants and 96 SF personnel killed in 213 such incidents in 2010.’[11]

   [11]   South Asia Terrorism Portal (SATP) 2012, Khyber Pakhtunkhwa Assessment – 2012 < > 

3. The 2013 Assessment[12] details numerous attacks  by the TTP in Khyber-Pakhtunkhwa  and notes:

   ‘The SFs [security forces] are the prime target of TTP attacks. However, members of various Lashkars (militia), who are assisting SFs in anti-militancy operations, are also being systematically targeted. A car-bomb attack, targeting an anti-TTP militia headquarters in Darra Adam Khel tribal region in the south of Peshawar, killed 18 civilians and injured another 40 on October 13, 2012.’

   [12]   

4. It notes that there has been a decline in fatalities as well as attacks throughout 2012 though the Islamist extremists demonstrably retain significant capacities to strike. Further:

   ‘Though overall militancy in the Province has declined significantly, cross-border attacks by runaway militants from the Swat Valley have increased. Major General Ghulam Qamar, the operation commander in Swat, on September 6, 2012, disclosed that the Army had repulsed 17 major attacks by militants from across the Afghan border since February 2012, and that 260 attackers were killed, while 40 security personnel lost their lives in these attacks. General Qamar also noted that, since February 2012, 105 exchanges of fire with terrorists trying to infiltrate to Pakistan territory from Afghan side had occurred.

   … TTP Swat chapter 'spokesman' Sirajuddin claimed, “Maulana Fazlullah is leading TTP attacks from Afghanistan’s border provinces and is in touch with fighters in Malakand division... We regularly move across the porous border.’

5. The assessment concludes “While there is limited evidence of some improvement in the efficiency and effectiveness of responses, the threat of terrorism in Pakistan, and in KP in particular, remains dramatic, and the gains of the recent past are, at best, fragile.”

6. The US Department of State (‘USDOS’) latest human rights report states that

   ‘During the year militant and terrorist activity continued in different KP and FATA areas, and there were numerous suicide and bomb attacks in all four provinces and FATA. Security forces reportedly committed extrajudicial killings. Militants and terrorist groups, including the TTP, a militant umbrella group, targeted civilians, journalists, schools, community leaders, security forces, and law enforcement agents, killing hundreds and injuring thousands with bombs, suicide attacks.’[13]

   [13]  US Department of State 2013, Country Reports on Human Rights Practices for 2012 - Pakistan, Section 1.d

7. The January 2012 article by the Pulitzer Center on Crisis Reporting, reporting on the Taliban in Swat[14], states that the “region is still in the grip of fear and uncertainty”, and that militants are still active in the area.  A report by Fairfax correspondent, Ben Doherty, on the situation in the Swat valley also describes the peace as “fragile” and “for now”, noting that locals still fear the return of the Taliban.[15]

   [14]  Buneri S 2012, ‘Pakistan’s Swat Valley: Taliban Gone But Peace Remains Elusive, Pulitzer Center on Crisis Reporting <

   [15]  Doherty, B. 2012, ‘Peace returns to the Swat Valley’, Brisbane Times

8. The Tribunal has also had regard to the independent country information provided by the applicant from the International Crisis Group[16] and other media reports[17] of targeted attacks on persons associated with Peace Committees. As well as information he provided at the hearing regarding attacks in Swat.

   [16]  Pakistan: Countering Militancy in PATA Asia Report N°242 15 January 2013

   [17]  Radio Free Europe Radio Liberty: Roadside Bomb Kills Pakistani Party Official 14 April 2013, Bombing kills six n northwest Pakistan 3 November 2012, Bomb near Pakistan  market kills 16, injures dozens 13 October 2012; Anti-Taliabn peace committee chief killed in Lower Dir, 4 November 2012.

9. The DFAT Report notes that militant groups such as Tehreek-e Taliban Pakistan (TTP) and Lashkar-e Jhangvi (LeJ) continue to operate across Pakistan despite government and military operations disrupting their activities.[18] The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into a number of separate groups following the beginning of the crackdown. In early 2017, a number of these splinter groups re-joined the TTP, however, or pledged support for its leader, Mullah Fazlullah. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned.

Pashtuns

[18]  Ibid

1. Pakistan is an ethnically diverse nation, home to a number of distinct ethnic groups usually divided along linguistic lines. Pakistan’s Constitution and formal legislative framework do not explicitly discriminate against particular ethnic groups. Section 28 of Pakistan’s Constitution provides that ‘any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and, subject to law, establish institutions for that purpose’. In addition the Constitution provides for specific safeguards against discrimination on various matters, including public funded education, access to public spaces and public sector employment.[19]

   [19]  s.22, s.26 and s.27 of the Pakistan Constitution

2. The DFAT report notes that in practice, ethnicity has been a source of communal tension throughout Pakistan’s history. The steady migration of Pashtuns from Khyber Pakhtunkhwa and the Federally Administered Tribal Areas (FATA) to Karachi has reportedly contributed to violence between the armed wings of major political parties, including the Mohajir-based Muttahida Qaumi Movement (MQM), the Sindhi-based Pakistan People’s Party (PPP), the Pashtun-based Awami National Party (ANP), and the Sunni militant group Tehreek-e Taliban Pakistan (TTP). In Balochistan, separatist groups such as the Baloch Liberation Army (BLA) have targeted and killed ethnic Punjabi settlers and others as part of their campaign for independence.

3. Pashtuns are characterised by their use of the Pashto language and its many dialects. Pashtun culture emphasises tribal and family relations, as well as customary norms collectively referred to as Pashtunwali. Pashtuns are overwhelmingly (but not exclusively) Sunni. They are represented at all levels of society in Pakistan and historically, have dominated employment in the transport sector in Pakistan and Afghanistan. They are well represented in Pakistan’s security forces.

4. Approximately 30 million Pashtuns live in Pakistan, making them the second-largest ethnic group in the country (behind Punjabis). Pashtuns traditionally live with members of their own tribes and sub-tribes in Khyber Pakhtunkhwa and the FATA, although many have migrated to urban areas. The largest Pashtun communities are in Karachi (approximately 7 million out of Karachi’s total population of 20-24 million), followed by Peshawar (approximately 3.5 million out of a total Pashtun population across Khyber Pakhtunkhwa of around 22 million). Pashtuns also live in Balochistan, Islamabad, Lahore and other urban areas in Pakistan.

5. The DFAT Report advises that members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty obtaining identification. Since the commencement of Operation Zarb-e-Azb and the National Action Plan (NAP), large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities—due largely to the fact that the TTP’s support base is primarily Pashtun. Hundreds of Pashtuns were also arrested in the lead-up to a proposed (later cancelled) large-scale political protest led by Pakistan Tehreek-e-Insaf (PTI) in early November 2016. PTI has its base in Pashtun-dominated Khyber Pakhtunkhwa province. Members of the Pashtun community told DFAT that community leaders are typically able to secure the release of Pashtuns who have been arrested without firm evidence of wrongdoing.[20]

   [20] DFAT Report @ p.13

6. The security situation for Pashtuns has improved in line with the general improvement in security across Pakistan. Pashtun-majority areas have traditionally experienced disproportionately high levels of tribal, intra-communal and politically motivated violence, and a high concentration of military operations.[21] However, DFAT assesses that Pashtuns do not face a higher risk of violence than other groups based on their ethnicity. Pashtun community leaders in Lahore told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country.[22]

Internal Relocation

[21] Ibid

[22] Ibid

1. Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. The DFAT Report notes that country’s last census in 1998 showed the high level of internal migration; almost three million people lived in a different province to the one in which they had been born, and nearly 11 million lived in a different district. DFAT understands that large-scale internal movements have continued since the census in 1998.[23]

   [23] DFAT Report @ p.38

2. Operations by security forces have forced many people to relocate in recent years, particularly in the FATA and Khyber Pakhtunkhwa. Credible sources in Pakistan told DFAT that the majority of these people have now been able to return to their homes, although in many cases their homes and fields had been destroyed in the security operations. DFAT understands that as of November 2016 around 600,000 people remained displaced as a result of security operations and natural disasters. A further 5,000 families are estimated to have been displaced from Pakistan to the Afghan city of Khost, near the Pakistan border.

3. Large urban centres such as Karachi, Islamabad and Lahore tend to have ethnically- and religiously-diverse populations, and offer a level of anonymity for people seeking refuge from violence by non-state actors. However, groups such as the Ahmadis, who face significant levels of official discrimination, face similar issues in all parts of the country.

4. Lahore has a population of around 10 million people with a significant number of ethnic groups, particularly Pashtuns. The DFAT Report notes that while security incidents can occur (such as the 2016 Easter Sunday attack) the security situation in Lahore tends to be better than other areas. The DFAT Report states that representatives of the Pashtun community have stated that Lahore was safer for Pashtuns than other parts of the country.[24]

   [24] Op Cit p.38

5. Islamabad has a population of around two million people which includes a large number of internal migrants from all parts of the country. There is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare. Such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders.

6. Karachi’s population is estimated at between 20-24 million people, making it Pakistan’s largest population centre. Security operations in Karachi have significantly reduced the level of militant and sectarian violence in recent years, although attacks are more frequent in Karachi than in Lahore or Islamabad. According to the SATP, around 250 people died in terrorism-related incidents in Karachi during 2016. This includes suspected militants killed in encounters with police. The relatively high number of casualties from insurgent, sectarian and criminal violence in Karachi is due in part to the city’s large population. A significant number of internal migrants live in poor conditions on the outskirts of the city.

Prevalence of Document Fraud

1. The DFAT report advises that document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as National Database and Registration Authority (‘NADRA’). It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[25]

   [25] DFAT report @ p.42

2. More broadly, DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common. People have also been known to pay news organisations to publish false stories in newspapers.[26]

CONSIDERATION OF CLAIMS AND EVIDENCE

[26] Ibid

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim[27]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[28]

   [27] s.5AAA Migration Act 1958.

   [28]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[29] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [29]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[30] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

Accepted Facts

[30]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. Based on the oral evidence provided by the applicant at the hearing the Tribunal accepts and finds that:

   (a)The applicant is Pashtun and a Sunni Muslim.

   (b)The applicant was born in [Village 1] village, Swat Valley, Khyber Pakhtunkhwa.

   (c)The applicant grew up in [Village 1] with his parents and siblings.

   (d)The applicant’s father continues to live in [Village 1] and is retired.

   (e)The applicant’s mother passed away in or about [year].

   (f)The applicant has [specified family members].

   (g)The applicant commenced a [business] in [Village 1] in 2007.

   (h)The applicant commenced work as [an Occupation 1] at [Agency 2] and assisted in a private [business] in 2012.

Applicants Mental Health

1. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. In this case the applicant claims that he mental and physical health has suffered as a result of him being in detention in Australia. He says that while he was in detention he was [assaulted] by another detainee which, he says, has further affected his trauma. The applicant states that he has difficulty remembering dates and events and providing a coherent explanation of his movements throughout Pakistan. Further, he says that he has been experiencing sleeping problems and is currently receiving a mental health assessment while in detention.

1. In addition, the applicant says he has had on-going [specified health issues]. The applicant says that he has consulted a doctor many times, including having a CT scan performed, in relation to his condition. The applicant did not provide any medical evidence to support his claim in relation to his alleged ongoing [health problems]. 

2. As a result of his mental condition the applicant says that his memory has deteriorated significantly and that he is unable to provide straight forward answers to questions in relation to his claims. The applicant submitted, both through his agent at the hearing and by his written submission’s dated 20 March 2018, that [Mr G], a counsellor Advocate at [a support agency], had observed that he becomes vague, distracted and distressed when describing his traumatic experiences. The applicant also submits that [Mr G] observed that he has experienced social isolation while in detention and presents with psychological symptoms of poor sleep and nightmares. [Mr G] did not provide any evidence to the Tribunal in support of the submissions made by the applicant.

3. However, contrary to the observations of [Mr G], at the hearing the applicant did not display any signs of being vague, distracted or distressed when giving evidence about his experiences in Pakistan.  He provided plausible, emotionally compelling and persuasive answers to the Tribunal’s questions about his claims for a protection visa. In particular, he provided detailed answers in relation to his family, education (including the documentation evidencing his qualifications in [subject] and as [an Occupation 1]), work and the events surrounding his alleged kidnappings by the Taliban.

4. Finally, despite the alleged observations by [Mr G], the Tribunal notes that the applicant concedes that he has not been diagnosed with any psychological condition.[31] No medical evidence was produced by the applicant in support of his mental or physical condition.   

   [31] Applicants submissions dated 20 March 2018 @ p.4

5. Therefore, while the Tribunal accepts that being in detention would cause the applicant to suffer mentally and emotionally, in the absence of any medical evidence in relation to either his physical or mental condition and having regard to the evidence provided by the applicant, the Tribunal does not accept that his memory has not deteriorated significantly or that he is suffering from a mental illness. As such, the Tribunal finds that he is able to provide straight forward answers to questions relating to his claims for a protection visa.   

Education and Employment

1. The applicant evidence was that he attended High School in [Village 1] and subsequently attended [College 2] and [College 1] at which he obtains qualifications in [subject] and as [an Occupation 1] respectively. The education records provided by the applicant refer to months, sessions or years rather than specific dates making it difficult to determine a precise timeline as to when he attended each institution.

2. The DFAT Report notes that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common in Pakistan. The validity of applicant’s certificates relating to his [occupational] qualification was questioned by the Tribunal due to the fact that the date on one certificate appeared to be inconsistent with the applicant’s attendance and completion of the course. The Course Completion Certificate from [College 5] relating to the applicant [occupational] qualification is dated [in] December 2006 but shows the applicant having completed the course over 2 years being sessions in 2005 to 2007.

3. The applicant said that he received the certificate before the completion of the course. He explained that he had completed the [subject] course at the end of 2006 in Peshawar. However, he failed two subjects and was therefore required to repeat them in 2007. As a result he received the certificate prior to completing the two remaining subjects. While studying to these subjects for the second time he resided in the Swat Valley and travelled to Peshawar to sit the exam. The applicant was not able to explain why an educational institution would issue a certificate of completion prior to the student passing all the required course subjects.

4. Nevertheless, despite the Tribunals concern in relation to the certificate from [College 5], the course certificates from [College 2] and [College 1] indicate that he has completed the courses as claimed. As such the Tribunal it is prepared to give the applicant the benefit of the doubt and accepts and finds that in or about 2007 he completed a Diploma in [subject] from [College 2] and completed a Diploma course as [an Occupation 1] from [College 1] in or about 2010.

Harm by the Taliban

1. The applicant’s evidence was that in or about 2007 he commenced a [business] in [Village 1]. He said that he operated the [business] from a shop in the village for approximately one year. When asked the address he said there was no formal address because the village was too small.

2. His evidence was that in or about 2008 a member of the Taliban visited him [requesting professional assistance]. He said that he refused to [assist] because it was not within his expertise and that it was illegal. He said that approximately 2 hours later he was taken from the [business] by a number of Taliban members to another location upon which he was taken to a room and told to [assist them as requested]. He says that refused to provide any help [as requested] upon which he was beaten. He says that his arm was cut and he received a [specified injury]. The applicant says that they then released him upon which they he was threatened that if he did not join them they would kill him. 

3. The applicant returned home to [Village 1] and then went to stay in [Village 2] for a few months with a friend. The applicant says that while in [Village 2] the Taliban telephoned him and threatened him that if he did not join them they would kill him.

4. The applicant’s evidence in relation to his abduction from the [business] was generally unconvincing. For an event that must have been both confronting and frightening to the applicant, he described the events of his abduction in the broadest of terms. His evidence lacked the necessary detail and specifics that one would expect from a person who finds themselves in such a confronting and stressful situation. Even taking into account the passage of time and the emotional and psychological effects of being in detention, it is reasonable to have expected that the applicant would be able to recall the specific details of his abduction.  Instead the applicant was not able to provide specific details in relation to his abduction including the precise details of the [request for assistance], the number of men who came to take him from the [business], where he was taken by the Taliban, how long it took to get there and where he was left by the Taliban on his return to [Village 1],   

5. Finally, the applicant did not provide any independent evidence of his abduction. The applicant’s evidence was that he did not discuss his abduction by the Taliban with his family or anyone else upon his returned to [Village 1].  The reason he gave was that they ‘they already knew’ about him being abducted. In the Tribunals view, even if they knew that he had been abducted, given the gravity of the event it would be extremely unlikely that the applicant would not to tell his family or close friends about the fact that he had been taken by the Taliban.

6. The applicant’s evidence was that during the various attacks listed above in 2008 he received phone calls from the Taliban in which he was told that if he did not join them he would be killed. Despite claiming that he received phone calls from the Taliban he was not able to inform the Tribunal how they had his phone number. It appears to the Tribunal that the applicant has embellished his encounters with the Taliban as it seems unlikely that the Taliban would repeatedly attempt to recruit him by threatening to kill him, repeatedly telephone him to threaten him, throw stones on his house, cut his electricity and threw dead [animals] on his house without acting on the threats made. In all the circumstances the applicant’s account of the threats made against him is not plausible.  

7. In addition, the circumstances surrounding the applicant’s abduction with his friend, [Mr F] seem to indicate that he was a person who was of no interest or threat to the Taliban at that time. Despite being a friend of [Mr F], who the applicant says was associated with the army, the applicant was released by the Taliba and able to return home.

8. The applicant’s behaviour is not consistent with his claimed fear. Despite the threats by the Taliban he continued to live in [Village 1] and work in the [business] up until the time he left for Australia. While the applicant did leave left [Village 1] for [Village 2] and Marden from time to time he continued to return to [Village 1]. The Tribunal has difficulty in accepting that he would stay in [Village 1], in circumstance were it was he faced the greatest and his return would have antagonised the Taliban. In such circumstances the Tribunal finds that the applicants account of the threats made against him are not plausible. 

9. Finally, in September 2011 the applicant applied for [an offshore humanitarian] visa which was refused in July 2012. In that application the applicant provided three letters of support outlining his fears of harm in Pakistan. Each of letters were drafted in similar terms and attested to the fact that the applicant and his family feared harm from the Taliban because they had killed his maternal uncle and kidnapped for ransom his aunt’s husband. The applicant made no mention of the fact that he had been targeted by the Taliban because of his work in the [business], that he had been harassed by the Taliban, that the Taliban had thrown rocks at his house, cut his electricity off, threw a dead [animal] onto his property, assaulted and injured while playing [sport], that they had stopped his car and forced him to destroy a tape recorder, that he had been kidnapped twice by the Taliban or that his friend had been [killed] during the course of the second abduction. The fact that the applicant did not raise these claims in 2011 ads to the doubt in the Tribunals mind about the credibility of the applicants claims.      

10. Taking into account all the concerns outlined above the Tribunal is not persuaded that the applicant was threated, harassed or harmed by the Taliban as claimed. Accordingly the Tribunal does not accept the applicant’s evidence and finds that he was not kidnapped from either his [business] or with his friend [Mr F] as claimed. In addition the Tribunal does not accept the applicant’s evidence in relation to the Taliban attempting to recruit him and threatening to kill him if he refused to join them.

11. As a result, the Tribunal finds does not accept that the applicants claim that he was targeted by the Taliban by reason of his [professional] training or his willingness to resist their advances join them.

12. Accordingly, the Tribunal finds that the applicant was not personally targeted by the Taliban as claimed and as such finds that the applicant does not face a real chance of serious harm in the event he returns to Pakistan.  

[Agency 1]

1. The applicant claims that he was responsible for monitoring [a Program 1] in the Tehsil (sub-district) [named] region of the SWAT Valley. His evidence was that he monitored the attendance and performance of all the  [Program 1 workers] and monitored whether the [programs] were monitored properly. He would then report his findings to the [Program 1] control room regarding any discrepancies. As part of his job the applicant would visit village areas and meet with officials and families affected by [Program 1] to determine if the workers had actually administered the [program] as required.

2. The delegate in his decision confirms that the applicant was not an employee of [Agency 1] but had been contracted on [number] separate occasions for a period of 10 days at a time (i.e. [total number] days) over a 12 month period. The photos provided by the applicant which included the UNHCR Temporary Card for IDP’s and registration & Ration Card for IDPs appear to support the fact that the applicant was engaged on a temporary basis.

3. The applicant was engaged by [Agency 1] from March 2016 to April 2017. The applicant did not travel to Australia until November 2017. There was no evidence that the applicant had been targeted by the Taliban as a result of his work with [Agency 1] for April 2017 to November 2017. While the Tribunal accepts that [Agency 1] workers have been subjected to attacks by the Taliban, there was no evidence that the applicant had been threatened or harassed by the Taliban while working for [Agency 1] and up to the time that he departed for Australia. Further there is no evidence that during this period of time that the applicant held a fear of being harmed by the Taliban as a result of his work with [Agency 1].

4. Accordingly that Tribunal does not accept that the applicant was subjected to any harm as a result of his work with [Agency 1] and finds accordingly. As such it finds that there is no real chance that the applicant will be subjected to serious harm by reason of his work with [Agency 1] in the event he is returned to Pakistan.  

Assistance to the Army

1. The applicant claims that in or about 2009 army officers requested that he identify homes belonging to Taliban members. The applicant’s evidence was that he provided the army information but did not accompany the officers to look for homes. In 2009 the applicant would have been relatively young, being [age] years old. The applicant at the hearing did not elaborate greatly on his involvement with the army beyond the evidence he had already provided to the department. He did not offer any reason as to why he was selected to assist the army over other members of the village. In addition, the applicant did not offer any explanation in his submissions or at the hearing as to the delegate’s observation that his involvement with the army was not raised in his application for [an offshore humanitarian] visa in 2011. Nevertheless, the Tribunal accepts that the applicant did provide information to the army as claimed.

2. In addition, the applicant claims that he was invited to join the village peace laskcar. The Tribunal accepts that this is plausible and finds that he was invited to join the village peace laskcar.

3. The applicant also claims that he volunteered in the army [support services] for two or three months. The tribunal accepts and finds that the applicant travelled in convoy with the army and provided [assistance] to civilians.

4. The level of assistance provided by the applicant to the army is very low. There was no evidence of how the Taliban would have become aware of his involvement with the army. In addition there was no evidence of the applicant having been threatened as a result of his involvement with the army as claimed. Accordingly the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in the event that he returns to Pakistan.

Applicants profile with the Awami National Party (ANP)

1. The applicant has consistently claimed that his maternal uncle was killed and another kidnapped by the Taliban, having first raised the claim in his application for [an offshore humanitarian] visa in 2011. As a result the Tribunal accepts and finds that in March 2008 the applicants mothers sister’s husband, [Mr A], was kidnapped for ransom by the Taliban and that in July 2008 his mother brother, [Mr B] was killed by the Taliban.

2. In addition, the Tribunal accepts the applicant evidence that his mother’s cousin, [Mr C] was a high profile member of the ANP in Karachi and that in [year] he was assassinated by the Taliban. In addition the Tribunal finds and accepts that in or about 2015 the Taliban fired at the home of another uncle [Mr D] and that in 2015 his cousin [Mr E] was elected Nazim or local mayor.

3. In his statement of claim dated 9 March 2018 the applicant states that his family are heavily involved in the ANP and that he was considered a prominent member of the party while he was in Pakistan. He claimed to have a letter of support from the ANP and provided a photo taken with party members (said to be then MPA [named]) being presented with an ANP red hat. He states that he actively took part in ANP activities and would follow his cousin [Mr E] for such activities since his election in 2015. He states that he took part in election campaigns, rallies and corner meeting organised by the ANP. He says that in or about 2017 he was voted by the party as a [nominated position] candidate for the party. He says there is to be a vote in 2018 to see if he is to be selected by the ANP to take part in the local elections.   

4. However, despite the applicant’s claims of his involvement with the party he was not able to provide the Tribunal with any independent evidence of his involvement with the ANP. In fact the applicant’s oral evidence to the Tribunal was never a paid up member of the ANP and that he had never held or stood for an official position within the party. Rather, the applicant claimed that he could be at risk as a result of his family’s profile. This could be characterised as either he would be imputed with an anti-Taliban political opinion on the basis of his family’s public opposition to the Taliban or that he would be persecuted because of his membership of the particular social group of his family.

5. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person’s membership of the particular social group. The Tribunal accepts that there are common characteristics that unite members of a family including shared ancestry and values and that the applicant’s family is a particular social group within the meaning of the Convention so that the harm the applicant fears is for reasons of his membership of a particular social group.

6. However, in this case, it appears that the applicant has embellished or exaggerated his claim as to his involvement in the ANP. The Tribunal accepts that his family had ANP connections and as a result it is not implausible that he would have some involvement in the ANP. However, based on the applicant’s oral evidence and in the absence of any independent evidence as to his involvement in the party, the Tribunal does not accept that he was involved in the ANP to the extent as claimed.  Rather, the Tribunal finds that he was not an active member or supporter of the ANP and that he did not take part in election campaigns, rallies, corner meetings or that he held any position in the party including as a [nominated position] as claimed.

7. As a result of the Tribunal finds that there is not a real chance that he will be imputed with an anti-Taliban political opinion. While the applicant’s village is small and members of his family have been targeted as a result of their involvement in the ANP, the applicants involvement in the ANP appears to be on the periphery and at best he has only a minor role. As such, the Tribunal does not accept that there is a real chance that the applicant will be known to the Taliban and other militant extremists. Accordingly, the Tribunal finds that the applicant does not face a real risk of serious harm from the Taliban as a result of his family’s involvement in the ANP.

8. Accordingly the Tribunal finds that the applicant will not suffer a real chance of serious harm in the event he is returned to Pakistan by reason of his alleged association with the ANP.

1. Therefore, having considered both ss.5J(1)(a) and 5J(1)(b), alongside the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that there is not a real chance the applicant will suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.

2. In all the circumstances the applicant does not have well-founded fear of persecution based on his claim of his profile within the ANP and as such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Does the applicant’s alleged persecution relate to all areas of Pakistan

1. In the alternative, if  there was a real chance the applicant would suffer serious harm on his return to Pakistan (which the Tribunal has specifically found there is not) then it finds that that there is not a real chance that the persecution claimed would relate to all areas of Pakistan.[32] As such, the Tribunal finds that it would be reasonable for the applicant to relocate to a city such as Islamabad, Lahore or Karachi to avoid the risk of such harm.

   [32] s.5J(1)(c) of the Act.

2. The harm the applicant claims he will suffer is based on the fact that Taliban are prevalent in the areas around his village in the Swat Valley of Pakistan. However, based on the country information the risk from the Taliban and other militants is much less in the larger city centres such as Islamabad, Lahore or Karachi. In addition, the applicants claim that as a Pashtun he will experience discrimination and persecution[33]  in other parts of Pakistan is not supported by the country information.  

   [33] ibid

3. As such, the Tribunal finds that there is not a real chance the applicant will suffer serious harm in all areas of the applicants receiving country of Pakistan and that the applicant will be able to relocate to areas such as Islamabad, Lahore or Karachi.

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for these purposes.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading and treatment or punishment. The applicant claims that his know to the Taliban and has been targeted as a result of his [professional] training and his reluctance to join them. In particular, the applicant claims that he has been kidnapped and threatened to be killed by the Taliban. In addition, he claims that as a result of his work with [Agency 1], his association with the ANP and his work with the army he will be targeted and harmed or killed by the Taliban. However, the Tribunal, for reasons set out above, has found that the applicant does not face a real chance of serious harm if he returns to Pakistan.

3. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[34] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It therefore follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Pakistan as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

Is reasonable to relocate to Islamabad, Lahore or Karachi ?

[34]  MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

1. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. The High Court approved of the following explanation:

   [I]f a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.[35]

   [35]   Januzi v SSHD [2006] 2 AC 426 at 440, cited with approval in SZATV v MIAC (2007) 233 CLR 18 at [19]; the Court declined to reconsider its approach in MIBP v SZSCA (2014) 254 CLR 317 per French CJ, Hayne, Kiefel and Keane JJ at [23]-[24]; see also Gageler J at [40]. The joint judgment in SZATV indicated at [20] that the reference in that passage to the unavailability of protection is best understood as referring not to the phrase ‘the protection of that country’ in the second limb of the definition, but to the broader sense of the term identified in MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [20], namely, the international responsibility of the country of nationality to safeguard the fundamental rights and freedoms of its nationals. In SZATV, Kirby J observed that other textual foundations for the relocation test had also been suggested: at [50]-[63].

2. At hearing the Tribunal discussed with the applicant the possibility that he could safely relocate to another city such as Lahore. The applicant submits that based on the country information relocation is not available to him.[36] In addition, he says that as a Pashtun relocation to another part of Pakistan away for his Tribal networks would not be reasonable as he would suffer discrimination and persecution[37]

   [36] Applicants submission dated 27 March 2018 p.5

   [37] ibid

3. However, contrary to the applicant’s submissions, the country information appears to support the applicant’s ability to relocate to cities such as Islamabad, Lahore or Karachi. Tribunal acknowledges the applicant would face difficulties and challenges in relocating to another city, but the applicant is single, young and holds qualifications from local institutions making easier for him to access paid employment. The applicant is resourceful having previously conducted his own business and obtain gainful employment in Pakistan. Any difficulty the applicant would incur in finding work based on his particular circumstances does not amount him facing a harm that will amount to serious harm in the sense that the he would be denied the ability to earn a living or that his capacity to subsist and access to basic services would be denied.

4. As to the applicant’s mental health the Tribunal has already found that in the absence of any medical evidence and in light of the applicant’s own evidence, the applicant is not suffering from any mental illness that would be affected by his relocation to a major city in Pakistan such as Islamabad, Lahore or Karachi.

5. Therefore, the Tribunal finds that there is not a real risk the applicant will suffer significant harm in areas such as Islamabad, Lahore or Karachi. As such the Tribunal finds that it would be reasonable for the applicant to relocate to Islamabad, Lahore or Karachi to avoid the real risk of significant harm.

6. At no stage did the applicant advance any other reason, such as his race, nationality or religion, in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

7. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm as required by s36(2)(aa).

CONCLUSIONS

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a) and 5J(1)(b). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa

Jason Pennell
Member