1807156 (Refugee)

1807156 (Refugee) [2024] AATA 4175 (16 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Leske (MARN: 0960234)
CASE NUMBER:  1807156
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Andrew Verduci
DATE:16 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 July 2024 at 9:40am
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – applicant was in a relationship with a girl whose family were part of the Taliban – imputed political opinion – an imputed opponent of the Taliban and other Sunni militants – a particular social group – being a person known to and targeted by members of the Taliban – a target of an honour crime – a failed asylum seeker – mental health – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 424, 499
Migration Regulations 1994, Schedule 2
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

The applicant is a citizen of Pakistan. He lodged an applicant for a protection visa on 8 March 2017 which a delegate of the Minister for Home Affairs refused to grant on 28 February 2018 under s 65 of the Migration Act 1958 (Cth) (the Act).This is a review in relation to that decision.
Compliance interview
The applicant arrived in Australia as a crew member of a [vessel]. He deserted his ship by jumping overboard [in February 2017]. He was located, detained and interviewed by officers from Australian Border Force on or around [date] February 2017.
He gave a number of answers during this interview that are discussed further below.
Protection visa application
I have summarised the written claims made in his protection visa application. They are:
·He was in a relationship in Pakistan with a girl named [Ms A]. Her family were members of the Taliban. They would only give permission for him to marry [Ms A] if joined the Taliban. He refused to join the Taliban.
·[Ms A] was shot and killed by members of her family for bringing shame and dishonour on them. He fled to another part of Pakistan to avoid her family but they continued to telephone and threaten him.
·[Ms A]’s family gave his photo to the Taliban and made threats to find and kill him. He fled Pakistan by leaving on a [vessel].
The delegate found the applicant’s claims implausible and concluded that they were not credible. In particular, the delegate did not accept that the applicant’s girlfriend was shot by her father and brother and subsequently died; that he visited her at hospital and took photographs of her; that he travelled to SWAT and to Karachi to avoid being harmed by her family; and that he fled Pakistan by ship which he later deserted because of threats from her family.
Review application
The applicant applied for review of the delegate’s decision with this Tribunal on 16 March 2018. The length of time it has taken his application to be considered is regrettable, although I do record that the application was only constituted to me on 21 February 2024.
The applicant provided a copy of the delegate’s decision to the Tribunal. He also provided numerous documents prior to the hearing, including but not limited to:
·A copy of a First Instance Report for an event occurring on 5 February 2021 with accompanying translation;
·A written statement by the applicant dated 12 May 2022;
·Medical reports from [Organisation 1], [Organisation 2] and [a] Medical Centre; and
·Statements of support from the [an association] and Mr [B], a family friend.
In his written submission dated 27 March 2024, the applicant particularised his fear as being based upon:
·Political opinion, as an imputed opponent of the Taliban and other Sunni militants;
·His membership of a particular social group, being a person known to and targeted by members of the Taliban;
·His membership of a particular social group, being a target of an honour crime and the partner of a person who was killed in an honour crim; and
·His membership of a particular social group, as a returned from the West to Pakistan.
The same factors above were also said to give rise to the applicant facing a real risk of significant harm for the purposes of the complementary protection criteria.
The applicant appeared before me on 3 April 2024 and 29 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. He was represented in relation to the review and his representative attended the Tribunal hearings.
The applicant provided material at the start of his first hearing which included a timeline of terrorist activities in Khyber Pakhtunkhwa, Pakistan in 2024.
Additional material received after the first hearing included the applicant’s comments and response to information put to him at the first hearing under s 424AA of the Act, as well as an additional written submission, an updated medical report and a document purporting to be an attested First Incident Report (FIR).
A submission about the stigmatisation of people with mental health conditions was received after the second hearing.
Mental health and vulnerability
There is considerable information before me regarding the applicant’s mental health. The report from [Organisation 1] dated 17 May 2021[1] is based on counselling sessions over a three-year period and refers to symptoms consistent with Post Traumatic Stress Disorder, hypervigilance, restlessness, lack of ability to focus, forgetfulness, racing thoughts and unwanted thoughts on a regular basis. His presentation during his counselling sessions included an avoidance of talking about distressing memories and no recollection of dates such as when his girlfriend was shot or he arrived in Australia.
[1] The date of report is 17 May 2021, however the report is also dated 5/10/21 in the top left corner.
A follow up report was prepared by [Organisation 1] on 29 November 2022. This report refers to a continued presentation of symptoms consistent with PTSD, including hypervigilance, fear, forgetfulness, racing thoughts and dissociation on a regular basis. It describes the applicant as appearing restless, having a limited ability to stay focused, being psychologically fragmented with frequent dissociative episodes and not being connected to conversations during his counselling sessions.
A letter from [a] Medical Centre dated 27 March 2023 describes the applicant as suffering from PTSD and Major depressive disorder, being on anti-depressants and seeing a psychiatrist at [Organisation 2]. It lists the applicant’s current medication as at the time it was written.
Further material was received after the first hearing including a report from [Organisation 1] dated 15 April 2024 which I have also had regard to and placed some weight upon. I have also had regard to the applicant’s evidence that talking about [Ms A]’s death brings up feelings of guilt and stress, and that he was distracted during the hearing and found the hearing difficult to get through.
I was assisted by material regarding the applicant’s health being submitted before and after the first hearing. It allowed for reasonable steps to be taken during the hearings to ensure that he was afforded a real and meaningful hearing and I have considered his evidence in the context of all the available medical evidence. I have also assessed, and have continually re-assessed, the applicant’s evidence in light of the medical reports and surrounding material.
I found the applicant to be engaged throughout both hearings and responsive to me, the interpreter and his surroundings. He would occasionally respond to my questions in English but predominately spoke through the interpreter. He did not appear agitated or dissociated and was able to recall dates and specific events promptly and with reasonable detail. We adjourned for breaks throughout the first hearing to reduce mental fatigue and the second hearing was only of a very short duration.
When I indicated to the applicant’s representative during the first hearing that my experience with, and observations of, the applicant were somewhat different from those described in the reports, he acknowledged that had been the case and suggested it may be a benefit of the applicant’s continued counselling and treatment. At the time of the first hearing, it was noted that the more detailed counselling reports from [Organisation 1] and [Organisation 2] were from 2021 and 2022 and that the applicant’s ongoing treatment appeared to be having a positive effect[2].
[2] For the avoidance of doubt, I do not take the applicant’s appearance before me at his hearings as an indication of his mental state during his detention interview on [date] February 2017.
The applicant was able to give evidence, explain and clarify detail and recall dates and specific events to a degree with which I was satisfied. My difficulties accepting relevant parts of his evidence are not explained by inconsistencies in specific dates or minute detail and I do not accept that he was confused or mistaken about the issues being discussed during the hearings. I am concerned about the plausibility of certain events occurring in the way described and/or his failure to mention an important event, even if he was unclear on its timing or sequence.
It was also discussed that, whilst I would have appropriate regard to the professional opinions and diagnosis in the various reports, the factual matters underpinning them, which are based on a self-narrative of the applicant’s claimed experiences, required findings of fact to be determined by me.
In his submission dated 19 April 2024, the applicant’s mental health was raised as a practical barrier to relocating within Pakistan for the purposes of considering the complementary protection criteria. Information was provided to support the proposition he would be unable to sustain himself outside his home area in Khyber Pakhtunkhwa due to his mental health. However, I find that the applicant will return to his home area in [City 1], Khyber Pakhtunkhwa, Pakistan where he has lived nearly all his life. He will live there with the support of his family and without the real chance of serious harm or real risk of significant harm. Accordingly, the principle of relocation, and its potential affect on the applicant’s mental health about ability to sustain himself outside of Khyber Pakhtunkhwa, does not arise.
Looked at more broadly, however, I have also considered whether the applicant faces a real chance of serious harm, or a real risk of significant harm, because of his mental health.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
I accept that the applicant is a citizen of Pakistan, a Pashtun of Sunni faith, and that he was employed as a [Occupation 1] on [vessels] since approximately 2010. His work included an international sea voyage between [date] December 2014 and [date] November 2015. He has provided oral and documentary [evidence] which supports this. His last voyage as a [Occupation 1] departed [Pakistan in] August 2016 and arrived [in] Australia on approximately [date] February 2017. He deserted this ship when it was docked [by] jumping ship and swimming to land with a bag of clothes and belongings. This is consistent with the evidence of him being located, detained and interviewed by officers from Australian Border Force around the same time.
I do not accept that the applicant was in a relationship with a girl whose family were part of the Taliban, that his girlfriend was killed by her own family because of his relationship with her, or that her family and/or the Taliban are looking for him.
Compliance interview
The applicant was located and detained by Australian Border Force officers after he deserted the [ship] on which he had arrived. A compliance interview was conducted on [date] February 2017. It records that the interview was conducted via an interpreter.
The question ‘Is the [applicant] suffering from any health issues or taking any medication?’ has a cross in the ‘No’ box.
The interviewing officer read the following statement to the applicant as a part of completing Part B of the compliance interview:
·“…The purpose of this interview is to obtain information about your personal circumstances. It is important that you answer these questions accurately and honestly as the answers you give will assist the Department in making any future decisions regarding your immigration status. I will write your answers to my questions on this form.
The department is collecting your information for the purposes of this compliance operation and it is done so in accordance with the Privacy Principles. Your personal information is protected by law, including the Privacy Act 1988…”
The applicant’s answers to the compliance questions are handwritten in the form. Some of that handwriting is illegible, but, relevantly, I understand it to include the following record of answers (noting that the record seems to switch between the applicant being referred to in the first or third person):
·He can’t even complain, they would kick us out of the company
·Best option for me is to get off the ship here
·Do some job or something
·What available job to do in Australia, I would do
When asked ‘[a]re you intending to apply for any visa in Australia’, a cross was put in the box next to the words ‘do not know’ and the comments ‘don’t ha[ve] anything in my mind at the moment’ were added.
When asked ‘[a]re there any reasons why you cannot return to your home country? What are those reasons?’, there is a cross next to the box ‘Yes’ and the comments added ‘my father would be angry and there are problems at home as well’.
When asked ‘[a]re you willing to depart Australia (If yes, when? If no, why?)’, there is a cross marked in the box ‘No’. and the comments added ‘not at the moment’.
When asked ‘is there anything you wish to add to any of the questions asked or further information that you wish to provide?’, the following answers are recorded:
·I really need your help
·I want to do anything that is available to work, but I don’t want to go back to [the] ship
·If you can help me, I got a situation and don’t want to [go] back
·I’m [illegible] stress at the moment, I want you help.
I discussed relevant particulars of this information with the applicant during the hearing and invited him to give comments and a response under s 424AA of the Act. The information is relevant because he did not seem to have explicitly mentioned his former partner [Ms A], did not refer to her honour killing and did not claim to fear any harm from the Taliban. I explained that the information may lead me to find that he was not in a relationship with a woman who was killed by her family because of his relationship, or that members of the Taliban were looking for him as a result. This would be the reason, or a part of the reason, for affirming the decision under review. He requested an adjournment of seven days to give his response, which I granted.
The applicant’s written comments and response describe being handcuffed and told by people, including police officers and Border Force officials, that he had done something very bad and would be punished in Australia. This is expanded upon in a further written submission that highlights the lack of advice available to the applicant at this time about the protection visa process and the impact his mental health might have had in relation to the answers that he gave. The submission contents that it would be unreasonable to rely upon information given during this interview when considering the applicant’s claims and credibility.
I do not accept that the applicant failed to mention [Ms A], her family, her honour killing or his interest to the Taliban because he was in a vulnerable state, under immense stress or scared of the police and/or Border Force officers. Whilst it was not an interview for the purposes of making protection claims, he was warned that he needed to give answer accurately and honestly and that his answers would assist the Department make future decisions about his migration status. I consider that the absence of an express reference to [Ms A], her family and/or the Taliban is significant and undermines the credibility of his evidence about these claims.
I have also considered his answers which include having ‘problems at home’, that his ‘father will be angry’ if he returns and he has a ‘situation’ that he does not want to go back to. I have considered these in the context of all his answers at the compliance interview, which include not having an application for another type of visa (eg, a protection visa) in mind, that he fears being kicked out of the company if he complains about conditions on the ship and that wants to do any work that is available in Australia. Having considered this very carefully, and in the absence of clearer reference to [Ms A], her family and/or the Taliban, I do not accept that the situation or problems in Pakistan that he was referring to during this interview were a reference to his claimed relationship with [Ms A], her family and/or the Taliban. To the extend he indicated that there are problems at home or with his dad, they do not relate to claimed relationship with [Ms A] and/or his fear of harm from her family and/or the Taliban. The applicant has provided no other context in which to consider these statements.
Relationship with [Ms A]
I do not accept the applicant’s account of his first meeting with [Ms A] and the development of their relationship.
I find it implausible, and I do not accept that, if that if he lived in the same village as [Ms A], only 5-6 minutes walking distance between them, he would never have heard of, seen, or met her prior to his uncle’s wedding in January 2014 and that he would know nothing about her or her family.
If [Ms A]’s family were members of the Taliban as claimed, I also do not accept that they would have allowed her to attend the applicant’s uncle’s wedding without a male guardian or chaperone. I find it implausible and inconsistent with country information that she would be allowed to go to large social event, like a wedding, with unfamiliar male members of the community and not be accompanied by a male relative or guardian.[3]
[3] DFAT Country Information Report: Pakistan, published 25 January 2022, (DFAT Report) at [3.89] - [3.100].
According to the delegate’s decision, the applicant said that he gifted [Ms A] a mobile phone so that they could stay in contact. In his written statement dated 12 May 2022, he said that they spoke for a little while at the wedding and she gave him her mobile number before they finished. In his oral evidence to me during the hearing, he said that she asked him for his telephone number at the wedding, which he gave her. The applicant addressed these inconsistencies by saying that the swapped telephone numbers at the same time but that he definitely did not give her an actual telephone.

During the course of 2014, he claimed to have met with [Ms A] in secret a small number of times. They would see each other in a nearby farm or field. If he thought it was necessary to meet and keep their relationship a secret, I do not accept that they would choose to meet in areas so close to where they each lived and risk being seen by either their own families or other local villagers who may have talked to their own families. The applicant’s explanation that they would be careful does not satisfactorily address my concerns about this.
It was in approximately April 2016 that he first told his family he was in a relationship with [Ms A] and wanted to marry her. Whilst this seems a reasonable period of time to have developed their relationship and be considering marriage, it is in the context of the applicant being away at sea from [December] 2014 until [November] 2015 and having only very limited contact with her before, during and after his return. I do not accept that a few meetings in person in a farm or field before and after he left, and limited contact by telephone whilst he was way at sea, is a credible basis for deciding he was ready to marry her in April 2016.
The applicant says that he learnt about [Ms A]’s family’s involvement in the Taliban when his own mother approached her family about a marriage in April 2016. Her family’s approval was conditional upon the applicant joining the Taliban. He also said that he had heard rumours about her family being involved in the Taliban prior to this but did not believe them. It is already implausible that he would not have known about people living so close by being Taliban members, but I am further concerned that, upon haring rumours about his partner’s family, he never thought to ask her whether or not the rumours were true. Given the applicant’s claim to feel so strongly against the Taliban, and the significance of her family being members, I do not accept that he would not have raised the rumours or asked [Ms A] any questions about it in order to avoid offending her. It is also unclear why she would be offended when he also claimed that she would complain about her own family.
If the applicant and his family were scared and fearful of [Ms A]’s family after this meeting, I have concerns about his evidence to me during the hearing that his mother kept in telephone contact with her family afterwards and that he begged her to make a second a request for marriage after the conditions that had been placed on the first request. First, this second attempt for marriage was not mentioned in his statement dated 12 May 2022. Secondly, it is inconsistent with his claim to have become fearful of her family when he learnt they were members of the Taliban.
I do not accept that the applicant’s evidence about these matters was a result of his mental health or a misunderstanding about the questions being asked during the hearing. I repeated his evidence back to him and sought clarification during the hearing about this evidence, and he was clear that he requested his mother to contact [Ms A]’s family about marriage a second time because that was what [Ms A] and he still wanted after the first proposal was refused. He gave a cogent response during the hearing that his mother made a second attempt at a marriage proposal because [Ms A] ask him and was pushing him to try because she did not like her own family.
Upon supposedly learning that [Ms A]’s family were members of the Taliban, and that marriage to [Ms A] would involve the applicant joining as well, I do not accept that the applicant or his family would continue to discuss marriage with [Ms A]’s family. I do not accept that he would have made a second request for marriage because of his love for [Ms A] having regard to all the circumstances he has described.
[Ms A]’s death and hospital visits
Honour crimes and honour killings occur in Pakistan.[4] However, I do not accept that the applicant was in a relationship with a woman who was shot by her family whilst he was at the bazar planning their escape. The applicant says that he was unable to escape with [Ms A] sooner because he was worried that someone from her family or village would see them. This concern about other villages observing what they were doing speaks to the intimate nature of they lived and the ease at which they could be observed by others around them. This is inconsistent with his evidence to have never met [Ms A] prior to this uncle’s wedding and to have had no knowledge of her or family. It is raises doubts about the ease at which the applicant and [Ms A] could or would have secret meetings in person in a nearby farm or field.
[4] DFAT Report, at [3.89] – [3.100].
Having heard that his partner had been shot by Taliban members of her family, it is implausible that the applicant would visit her in hospital not once, but twice. I do not accept that he would risk an encounter with her family at the hospital, or that he was able to avoid such an encounter because he had a friend working at the hospital and told him when it was clear. Even accepting that there might be no family present at a time that he arrived, there would be no way of ensuring that no-one else arrived after he was there or would observe him coming or going. Having already been told that [Ms A] was shot, I do not accept that he would risk going to the hospital in these circumstances with the hope that he could take her with him and flee.
I have considered the photographs said to be of [Ms A] in hospital. Whilst I accept that they are photographs of a woman in a hospital like setting, I do not accept that they depict what the applicant claims. When asked during the hearing what he did at the hospital, he said that he saw her in bed, only stayed 4-5 minutes and did not say or do anything. He said he went back again the next day and she opened her eyes but could not talk. He only stayed for 6-7 minutes. He did not claim to have taken photographs of her on either occasion until I asked him specifically about them. I do not accept that he misunderstood my questions during the hearing, a suggestion that was raised in his written evidence after the hearing. It was an open-ended question about what he did in the very short time he was in the hospital with her on two occasions. The delegate had expressed concerns about his claim to have taken photographs and it is an important element of his narrative that I would reasonably expect him to address. I place some weight on his failure to mention it until specifically asked.
I have also had regard to the delegate’s decision which records that the applicant only visited the hospital on one day and took both photographs that day, a narrative which changed to him visiting on two days when it was suggested that the woman was wearing different clothes in each photograph. His oral evidence that she opened her eyes on his second visit is also inconsistent with his written statement that she was unconscious on both occasions and there was no improvement to her health on his second visit.
The applicant said that he fled to SWAT shortly after hearing of [Ms A]’s death and lived with his mother’s relatives. A friend told him over the telephone that [Ms A] had died and that her body was taken back to her family’s home. Her death was also announced at mosque. He was not in contact with his family during this time. Having claimed to have fled his family home and village because [Ms A]’s family had shot her and were looking for him, I do not accept that he would have no contact with own family to let them know he was ok and going to another region for his safety. Even if he did not want to call his family because they would worry, I do not accept that they would not call him to check on his safety in circumstances where he claims to have kept his existing mobile telephone number and received calls later on from [Ms A]’s own family. I find this implausible, and do not accept he would have no contact with his family, even if he were living in SWAT at an aunt’s home on his mother’s side.
Incident’s involving uncle in 2021
The applicant’s written statement raised a new claim and evidence about an incident said to have occurred on 5 February 2021. As this incident is said to have occurred after the delegate’s decision, I am satisfied this would be a reasonable explanation why the claim was not made, and the evidence was presented, before the delegate’s decision was made.
However, I do not accept that an incident occurred at mosque on 5 February 2021 as the applicant has claimed. I also do not accept that the applicant’s uncle was stopped and questioned about the applicant’s whereabouts the day before the incident at the mosque.
The applicant’s evidence to me during the hearing is that his uncle was stopped and questioned by [Ms A]’s family and/or members of the Taliban on one day and then shot in an act of revenge at mosque the following day.
The applicant’s written statement dated 12 May 2022 which introduced this new claim did not refer to events happening over two consecutive days. It describes, in some detail, the claimed attack on his uncle on 5 February 2021 at mosque. It does not refer to his uncle being stopped and questioned the day before the attack by people looking for the applicant. This is a significant event which I expect would have been raised earlier, particularly in a written statement made much closer in time to when the claimed events are said to have occurred. It has not been explained why this new detail was given for the first time during the hearing in circumstances which were said to be immensely stressful.
If [Ms A]’s family and/or the Taliban were searching for the applicant since he fled his village in mid-2016, I do not accept that they would wait until 2021 to approach members of the applicant’s family to enquire about his whereabouts. When questioned on whether anything had happened prior to this, the applicant’s evidence was that his father and brothers received calls from unknown numbers. They answered the calls three or four times and received threats about the applicant. If the applicant’s family lived in the same area as [Ms A]’s family, and his family are identifiable so that his uncle could be approached on the street and asked about the applicant’s whereabouts, I do not accept that people would wait this long to approach the applicant’s family, either to enquire about the applicant’s whereabout or to harm them as an act of revenge.
The timing of the claimed attack at mosque in 2021 also raises concerns. For the same reasons as above, I do not accept that [Ms A]’s family and/or the Taliban would wait until 2021 before taking some physical action against the applicant’s family. I am also concerned as to why they would approach the applicant’s uncle on the street one day to ask questions and nothing more, but the following day would seek to harm the applicant’s father and/or family at mosque.
I have concerns about the location of the mosque where the attack was said to happen in relation to the applicant’s family’s home. The applicant said that [Ms A]’s family members came to the mosque looking for the applicant’s father. When he was not there, they shot his uncle and family members instead. In his first written statement, the applicant claimed that his father was a regular attendant that these prayers but, because he was running late that particular day, the attackers targeted his uncle instead. In his later written statement dated 10 April 2024, he says that he believes they mistook his uncle for his father. Where the applicant claims that [Ms A]’s family had stopped and questioned his uncle on the street a day before, I do not accept that his uncle was shot in a mistaken belief he was the applicant’s father the very next day.
The applicant’s father came running to the mosque and saw the attackers as they were leaving through a rear door. When asked how close the mosque was to his family home, he said it was next door. I questioned the applicant on why the attackers would go to mosque to harm his father if he lived right next door.
I am concerned about why they would seek to attack his family in public at the mosque when their house is next door. I am not satisfied that the attackers may have thought this an easier option and that the applicant cannot know what was in the mind of his attackers. I have considered and place some weight upon his written evidence given after the hearing that his family’s home is inside a gated compound where attackers could be shot if they entered, but I am also concerned why this evidence was not given earlier during the hearing. I also find it implausible that there would be no further attacks on the applicant’s father. If [Ms A]’s family were prepared to shoot at the applicant’s family at mosque in 2021 as an act of revenge, I do not accept that [Ms A]’s family and/or the Taliban would make no further attempts to injure the applicant’s father because he would not leave the compound unless it was extremely important, and even then only with an escort from other people that he lives with.
The applicant provided a digital copy of a document said to the be a First information Report together with a translation. His cousin sent him a digital copy of the document and he does not have the original. I expressed some concern about the lack of an original document, together with the prevalence of document fraud in Pakistan.[5] I have considered his response that it is the document sent to him by his cousin and that it is not false. Following the hearing a digital copy of a document said to be an attested version of the same FIR was submitted. It was not explained when the wet stamp was added to the document or why it was not submitted as evidence earlier than it was. I have given these documents some weight, however they do not overcome my concerns about document fraud and the matters I have addressed above and below.
[5] DFAT Report, at [5.52] – [5.55].
If [Ms A]’s family wanted to extract revenge on members of the applicant’s family, I do not accept that they would wait so many years with no, or very minimal, contact. I do not accept that after waiting so many years they would stop his uncle on a street and only ask about the applicant’s whereabouts and then let him go without any physical harm. I do not accept that they would go looking for the applicant’s father the next day at mosque instead of next door at his home, even if his house has gates and high walls. I do not accept that gates and high walls would act as a deterrence, or that it would not otherwise be more reasonable to target his father coming out of the gates, instead of attacking people at mosque when his father was not even there. I do not accept that his uncle or members of his family were shot, either on purpose or by mistake, because the applicant’s father was running late to mosque that particular day.
In summary, I do not accept that the applicant was in a secret relationship with [Ms A], that a marriage proposal was rejected by her family because the applicant would not join the Taliban, or that she was shot and killed by her family for being in a secret relationship and/or for bringing shame to her family. It follows that I do not accept that he visited her at hospital before she died or that he fled to another area of Pakistan to avoid her family. I do not accept that [Ms A]’s family made threatening telephone calls to the applicant and/or his family, that his brothers fled their home and his family blame him, or that his own family was the target of an attack at a mosque in 2021. I do not accept that the applicant fled Pakistan on a ship to avoid [Ms A]’s family and/or the Taliban.
Accordingly, I do not accept that the applicant will be imputed as an opponent of the Taliban or other Sunni militants, that he is a person known to and targeted by members of the Taliban, or that he is and/or will be the target of an honour crime and/or the partner of a person killed in an honour crime.
I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future, for any reason relating to his claimed relationship with [Ms A].
Pashtun
I accept that the applicant is a Pashtun of the Sunni Islamic faith. He was born and lived nearly all of his life in [City 1], Khyber Pakhtunkhwa, Pakistan, except for periods at sea as a [Occupation 1].
There are an estimated 20-25 million Pashtuns in Pakistan, the second-largest ethnic group after Punjabis. This ethnic group forms around 15.4% of the Pakistani population.[6]
[6] ‘Ethnic Groups In Pakistan’, John Misachi, World Atlas, 30 July 2019 (accessed 24 April 2024)
According to the Department of Foreign Affairs and Trade: [7]
·Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA. Residents of Khyber Pakhtunkhwa have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats.
·Ethnic stereotyping and the association of Pashtuns with the Tehreek-e-Taliban Pakistan (TTP) has led to official discrimination and ethnic profiling. In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes.
·There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected areas such as Khyber Pakhtunkhwa. As of January 2022, overall DFAT assessed Pashtuns in areas such as Khyber Pakhtunkhwa to face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere, Pashtuns may generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same location. That risk increases if they come to the attention of authorities for any reason.
[7] DFAT Report: Pakistan, at [3.14] – [3.18].
I also accept that the security situation in Pakistan has declined over recent years. Tehreek-e-Taliban Pakistan and other domestic jihadist groups have carried out most of the recent attacks. The focus of TTP attacks is now against the Pakistani military and other government representative, representing a move away from the targeting of civilians.[8]
[8] DFAT Report: Pakistan, at [2.31] - [2.32] and [2.40].
I have also considered the country information submitted by the applicant, including but not limited to the annexure to his written submissions and the timeline of terrorist activities in Khyber Pakhtunkhwa, Pakistan in 2024 submitted at his hearing.
The weight of country information, including the reports submitted by the applicant, suggests that the focus of the TTP and other violent groups is against the Pakistani government, military and other security forces.
Some recent examples of this include:
·In May 2023 a police operation in Manglawar resulted in the arrest of two TTP operatives, and on 5 June 2023 police announced the group had been active in Charbagh and Manglawar areas, and had been infiltrating into Swat and extorting money from MPAs (Members of the Provincial Assembly), and police would address shortcomings in preventing such infiltration.[9]
·On 8 October 2023 two persons were killed and four others injured in a clash near Mingora, with police CTD stating the deceased were informers for the militants, and killed in an encounter with the security forces, while locals disputed this and said it was a clash over monetary issues.[10]
·On 8 June 2023 two police constables and a bank’s security guard were killed by unidentified gunmen in the Sabzi Mandi area in Mingora. The TTP claimed responsibility for this attack.[11]
[9] 'Militant, facilitator involved in Swat shootout in May arrested: KP IG', Murad Ali Khan, Dawn (Pakistan), 05 June 2023; Two terrorists arrested from Swat", Pak Observer, 6 June 2023,
[10] Khaliq, F. "Connecting the dots: What really went down in Swat", Dawn, 24 October 2022, .
[11] "Pakistani Taliban target police in northwestern province, kill 2 officers and guard at a local bank", Associated Press, 8 June 2023; '2 policemen, security guard martyred by gunmen in Swat’s Mingora', Zahid Imdad & Fazal Khaliq, Dawn (Pakistan), 08 June 2023, 20230609123329

I do not discount that civilians can be, and sometimes are, directly or indirectly targeted as well. I place some weight on the fact that the applicant is not a person associated with the Pakistani government or military, or any other security type force. I have also not accepted that he has a profile that has, or will, bring him to the attention of the TTP or others in the reasonably foreseeable future.
I have also had regard to, and placed some weight upon, the assessment by DFAT that Pashtuns face a moderate risk of violence. I also place some weight upon ‘moderate risk’ being used in the context of ‘sufficient incidents to suggest a pattern of behaviour’.[12] The existence of a pattern does not automatically translate into meaning that the applicant faces a real chance or a real risk of this harm occurring to him. Similarly, the assessment by DFAT of ‘low risk’ is used to denote an awareness of incidents but with ‘insufficient evidence to conclude that they form a pattern’.[13] I have also had regards to the applicant’s evidence that the Taliban is everywhere and no one is safe from them.
[12] DFAT Report, page 6.
[13] DFAT Report, page 6.
Having regard to the totality of the applicant’s evidence, including the claims, evidence and characteristics or profile about him that I have accepted, I find that he does not face a real chance of serious harm, or a real risk of significant harm, because he is a Pashtun now or in the reasonably foreseeable future.
Failed Asylum Seeker and/or Returnee from a Western Country
I accept that the applicant will return to Pakistan after having lived in Australia since 2017. I also accept that he is someone who will have had an application for a protection visa refused. I have also considered the applicant’s evidence to me at hearing that he is a Sunni Muslim who attended mosque in Pakistan and has continued to attend mosque and pray whilst in Australia.
The applicant does not claim to have departed Pakistan unlawfully, and I find that he did not. He left on a valid travel document and did not commit immigration offences under Pakistani law. As a voluntary returnee to Pakistan, I find that he will be processed the same as any other returning Pakistani citizen. As an involuntary returnee, I find that he will be questioned and released upon demonstrating that he departed Pakistan lawfully which is within his means to do. There is no suggestion he is a person who committed, or is suspected of committing, criminal offences in Pakistan or Australia. Upon return, I find that he will be processed and released within a few hours.[14]
[14] DFAT Report, at [5.25] – [5.31].
I do not accept that the applicant will be perceived as anti-government just because of his time spent in Australia. He has not claimed to have any other anti-government profile and I find that he does not. For the reasons above, I do not accept that the Taliban already bear animosity towards him. Accordingly, he does not already have a profile or existing problem with the Taliban that this would add to. As a practicing Sunni Muslim, I do not accept that he has, or will be perceived as having, liberal and/or anti-Islamic views.
I have also considered DFAT’s assessment that that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migration, or purely because they have lived in a Western country. Discrimination or violence can still occur in relation to the reasons a person attempted to migrate or because of their behaviour or opinions displayed whilst living abroad, however I give these matters less weight because of my findings that the applicant departed lawfully and has not publicly displayed anti-government or pro-Western behaviours or opinions whilst in Australia. The evidence before me does not suggest that the mere act of living abroad would be viewed negatively by members of the applicant’s community, such that returning to his community would lead to the real chance or real risk or serious or significant harm.
I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future as a failed asylum seeker and/or returnee from a Western country.
Mental health
I do not accept that the applicant faces a real chance of serious harm for an essential and significant reason mentioned in s 5J(1)(a) of the Act, or a real risk of significant harm, as a result of his mental health.
As stated above, I place some weight upon the professional opinions and diagnosis in the various medical and health reports that I have received. I also place some weight on these reports being based on the applicant’s own self-narrative and reporting. I must also consider these reports in the context of other findings I make, including on the matters or sub-stratum of facts that the applicant’s narrative is based upon.
I have considered the applicant’s oral evidence at his second hearing and the written submission. That evidence points to a lack of awareness about mental health and health care professionals in Pakistan, and the stigmatisation of people with a mental health condition. The stigmatisation in this country information seems to stem from the community’s misunderstanding about the causes of mental illness, including that it might be a punishment from God or passed on from one person to another. It suggests a lowering of self-esteem for an individual with mental illness that may cause a reluctance to seek professional assistance.
The submission also includes an extract of an ‘article by the Guardian’ relating to the targeting of a mentally ill man in the Punjab province, but it provides no citation or other context such as the date of the article or when the incident being described is said to have happened. The extract of the article states that ‘an angry mob stoned to death a mentally ill man in Pakistan’, but the sentence then continues to say it is in ‘the country’s latest case of blasphemy-related violence’. This suggests to me that the victim was targeted for blasphemy and not because of their mental health.
I also place some weight upon country information that suggests the overall standard and availability of health care in Pakistan is low, mental health disorders are reportedly common and options for treatment are limited. This includes Pakistan having fewer than 500 psychiatrists serving a population of 200 million.[15]
[15] DFAT Report, [2.10] – [2.16].
I also place some weight upon a 2019 community survey which indicates about 10 per cent of urban men and a quarter of urban women in Pakistan suffer from mental illness,[16] and information that suggests more than 90 per cent of people with common mental health disorders go untreated.[17]
[16] BTI 2020 Country Report – Pakistan, Bertelsmann Stiftung, 28 April 2020, p 16.
[17] DFAT Report, [2.14].
The available evidence leads me to conclude that the Pakistan government provides health care services for the treatment of mental health conditions. Those services are imperfect and may be insufficient to meet the needs of the community in general and the applicant more specifically.
The evidence does not demonstrate to me a discriminatory withholding of services, or a denial of access to the available services, for a reason mentioned in s 5J(1)(a) of the Act and I find that that there is not. Similarly, I find there is no withholding of services, or denial of access to the available services, that is carried out with an intention of inflicting significant harm to the applicant.
I accept that a degree of stigmatisation may arise in society, borne out of ignorance and/or a misunderstanding about mental health and mental health conditions. I also accept that he may not receive the same standard of health care that he currently receives in Australia. Considering the prevalence of people with untreated mental health conditions in Pakistan, together with my finding that the applicant has the ongoing care and support of his family, I find that he does not face a real chance of serious harm for an essential and significant reason in s 5J(1) of the Act, or a real risk of significant harm.
Conclusion
I have considered the applicant’s claim individually and cumulatively. That includes being a Pashtun male from the Khyber Pakhtunkhwa who has worked on board [ships] as a [Occupation 1], has lived in a Western country since approximately 2018 and who has mental health conditions. I do not accept that he was in a relationship with a woman named [Ms A] who was murdered in an honour killing by her family. I do not accept that he has a profile or has been of any interest to members of [Ms A]’s family and/or the Taliban, or that he and/or any member of his family was targeted by members of [Ms A]’s family and/or the Taliban. I do not accept that the applicant and/or members of his family were forced to flee to their home because members of [Ms A]’s family and/or the Taliban were looking for the applicant. I do not accept that he will be denied access to the mental health care that is available in Pakistan, or that he faces a real chance of serious harm or a real risk of significant harm because of his mental health condition.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
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, and I find that he does not.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Andrew Verduci
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.
…

[2024] AATA 4175

16 July 2024

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