1809486 (Refugee)

1809486 (Refugee) [2021] AATA 4514 (14 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809486
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Roslyn Smidt
DATE:14 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 October 2021 at 11:34 AM

CATCHWORDS
REFUGEE – protection visa – Pakistan – forced to join ISIS or Jamaat ud-Dawa – student returning from a western country – security situation in Pakistan – family members continued to reside in Sialkot – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Pakistan, applied for the visa on 31 May 2017. The delegate refused to grant the visa on the basis that the delegate found much of his evidence lacking in credibility and did not accept that he faced serious or significant harm on return to Pakistan for the reasons claimed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The applicant is a [age] year old single man of Sunni Muslim religion from Sialkot in Punjab Province in Pakistan where he lived all of his life. His parents, [brothers] and [sisters] continue to reside in Sialkot. His father owns a small [shop]. One of his brothers works at this business. The other works for a [different] business.
The applicant completed a Bachelor [degree] in Sialkot in May 2012. He was granted a student visa on 28 November 2013 and arrived in the country [in] December 2013. He returned to Pakistan [from] December 2014 [to] January 2015 and [from] August 2016 [to] October 2016. He applied for protection on 31 May 2017. His student visa was cancelled in June 2017.
SUMMARY OF CLAIMS
The applicant claims to fear that he will be forced to join ISIS or Jamaat ud-Dawa and fight in Syria, Iraq or Afghanistan and that he will be killed if he refuses to do. He also fears that he will face this harm from these groups because of he has lived and studied in Australia.
COUNTRY INFORMATION
The following overview is intended to provide context for the applicant’s claims. Unless otherwise stated it relies on information from DFAT’s 2019 Country Information Report on Pakistan.
The security situation in Pakistan is complex and volatile, and while there has been a significant downward trend in violence over a 10 year period, due in large part to government security operations, the country continues to face security threats from insurgent, separatist and sectarian militant groups. Balochistan and Khyber Pakhtunkhwa (KP) generally report the highest level of militant violence, but attacks can occur anywhere. According to DFAT, Punjab ranked fifth for such attacks in 2019 (4 attacks, killing 20). During 2018, security and law enforcement personnel suffered the highest number of attacks but political leaders and workers made up the highest number of victims.
Jamaat ud-Dawa (JuD) was established as a humanitarian relief and religious education organisation but operates as a front for Lashkar-e-Taiba (LeT), an armed Islamist group which was focussed primarily on uniting Indian administered Kashmir with Pakistan and establishing an Islamic Caliphate across the Indian subcontinent, but has also established links with groups in other areas. According to a 2016 Brookings report, disgruntled JuD members and some affiliated groups were joining ISIS in Pakistan, in part because the JuD traditionally avoided violence against the Pakistani state, instead focusing on India. Recent reports state that leaders of JuD have been arrested and jailed as part of Pakistan’s ongoing efforts to combat terrorism.[1]
[1] Australian National Security, Reconstituting Local Order in Pakistan: Emergent ISIS and Locally Constituted Shariah Courts in Pakistan, Brookings Institute, October 2016, 10/fp_20161129_pakistan_local_orders_web.pdf; Pakistan sentences three top JuD leaders for ‘terror financing’ 3 December 2020 >
According to the 2016 Brookings report cited above, ISIS propaganda literature began to appear in Peshawar and North Waziristan in about September 2014. The report notes that the Pakistani military were engaged in a strong campaign against anti-state militant groups at that time which impacted on the group’s ability to operate, but nevertheless it gained a number of followers and established links with many banned militant groups in the country.
According to reports, 8 militants with links to JuD and ISIS were arrested in Sialkot at the end of December 2015. According to the Brookings report, the cell was formed after 15 months of networking by ISIS and was attempting to expand its presence using social media, which the report described as a major source of recruitment worldwide for ISIS.
These arrests were also reported in the publication Dawn[2] which states that the cell had established infrastructure in the district in order to carry out operations across the country and were engaging in fundraising and recruitment. According to the article, the arrests broke the network in Sialkot.
[2] IS cell busted in Sialkot, claim officials, DAWN, 29 December 2015, >
According to DFAT’s 2019 Country Information Report, ISIS increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh. However, it was unclear whether the group directly commanded attacks in Pakistan or merely claimed attacks conducted by sympathetic militant groups which had pledged allegiance to the group.
According to a 2011 report[3], extremist Sunni groups have generally sought to recruit support from Punjab’s poorer southern districts where they can exploit resentments stemming from economic disparities. Madrasahs in these districts have played a major role in recruiting locals. According to the International Crisis Group[4], Sunni fundamentalist extremist groups are able to find willing recruits in southern Punjab owing to the prestige and financial rewards they offer. The December 2015 Dawn article cited above observed that the prime objective of ISIS was to fan hatred of Pakistan’s law enforcement agencies. In order to persuade people to join they would show them some video clips in which security forces were seen shooting a young man in Karachi. A 2018 report[5] on ISIS recruitment states that the group uses strategic targeting which involves carefully selecting individuals who are susceptible to radicalisation and exploiting their vulnerabilities. While this report focuses on western countries it suggests that ISIS uses sophisticated methods of recruitment which target those most likely to be open to joining the group.
[3]Lieven, A., Pakistan: a Hard Country, London: Penguin Books, 2011.
[4] ICG, "Pakistan's Jihadist Heartland - Southern Punjab", 30 May 2016, CIS38A80122212.
[5] Turner, Laura, "The Path to Terrorism: The Islamic State and Its Recruitment Strategies" (2018), Honors Scholar Theses. 585. >
In 2018 the European Asylum Support Office[6] noted evidence that LeT sought recruits from all sectors of society, most commonly through current LeT member’s families, mosques or madrasahs, speeches or literature. Those recruited to fight required the permission of their family.
[6]EASO, COI Query Response, Q127/128, >
In 2019 DFAT assessed that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.
THE APPLICANT’S CLAIMS AND EVIDENCE
Evidence to the Department
In a statement dated 31 May 2017 the applicant claimed that he first became aware that ISIS was active in Pakistan when he returned home for a visit in mid-December 2014. His family had become tense because of the situation but had not told him what was happening prior to his return because they did not want to worry him. His mother told him that ISIS had begun to distribute propaganda in Pakistan in about September 2014, including in Sialkot. However, his father reassured him that ISIS was not a serious threat and would not impact his family, friends or community, so he returned to Australia.
The applicant was scheduled to return to Pakistan [in] August 2016. Shortly before his flight in 2016 his brother advised him not to return but refused to explain why. Despite this, he returned to Sialkot. He learned that the situation had deteriorated and the authorities were investigating reports that ISIS was based in Sialkot and that JuD had sworn allegiance to the group. On his way home from the airport, his brother told him that his father had been contacted and harassed by people from JuD who wanted him to send his sons to fight with ISIS, and that his father had been threatened because he had sent the applicant to study overseas. His father was insulted at the bazaar by a group of hooded men who called him a coward and a disgrace for sending his son to study in Australia. The applicant said that he had sent most of his time in Pakistan in 2016 in hiding.
After the applicant returned to Australia in October 2016, ISIS contacted his family and told them they should send him and his brother to join the group. His father and brother were bashed and told they would be killed because they were resisting demands that his brother join the group. They also threatened to kill his father if he did not bring him back from Australia.
The applicant said he would not be protected in Pakistan in part because ISIS was taking over the government.
The applicant attended an interview with the delegate on 9 March 2018. According to the delegate’s decision, he repeated the substance of his earlier claims. He said that his family had been approached and harassed on about 3 or 4 occasions in 2014, 2015 and 2016 by extremist groups wanting to recruit the male members of the family to fight in Syria, Iraq and Afghanistan. He said that his father was harassed by 6 or 8 people at the local market in 2014. He said that his father was approached at his home and threatened on other occasions and his brother [Mr B] had experienced unspecified ongoing harassment. His family attempted to report their problems to the police in 2015, but they did not provide any real assistance.
The applicant claimed that his cousin [Mr A] was abducted at the end of 2016 by a group, which offered him financial incentives to join .He was released and given time to think about the offer. He said that this was the last time a member of his family was harassed.
The applicant confirmed that his immediate family continued to live in Sialkot and that his father continued to operate his [business]. His younger brother assisted his father in his business.
The delegate noted that the applicant’s last entry to Australia was [in] October 2016 but he had not applied for protection until 31 May 2017. He said that he had not been aware that he could apply for protection until a friend alerted him to the possibility.
The delegate found the applicant’s evidence vague, generalised and lacking in detail which she would have expected from someone providing honest evidence. She did not accept that he had provided an accurate account of the attempts to recruit him and his brother to ISIS/JuD. She found his failure to seek protection until May 2017, which was around the time his student visa was cancelled raised issues relating to his motivation for seeking protection. While she acknowledged the ISIS and JuD may have had a presence in Sialkot at the relevant time, she was not satisfied that they had harassed his family in the manner claimed or that they would have any interest in the applicant if he returned to Pakistan.
Evidence to the Tribunal
The applicant provided a copy of the delegate’s decision to the Tribunal.
On 30 September 2021 the applicant provided a statement which sets out his migration history. It states that his most recent student visa was cancelled in June 2017. This is confirmed by Department records.
The applicant repeated the substance of his earlier claims. He said that while he was in Pakistan in 2016, he learned that his family had been harassed by JuD, who were recruiting for ISIS. He said that this occurred on at least 3 occasions. The threats intensified when the group learned he was studying in Australia. On one occasion his father was intimidated by six hooded men on his way home from the bazaar. ISIS and JuD threatened to assault his family and destroy their home if they did not cooperate.
The applicant said that after he returned to Australia in October 2016 ISIS contacted his family to ask him and his brother to join the group. They hesitated and they were beaten and threatened with death. The applicant said that his brother [Mr B] had experienced ongoing threats and harassment and remained of interest to ISIS but provided no specific information on these threats.
According to a submission of the same date prepared by the applicant’s representative, ISIS and JuD have been actively recruiting in Sialkot and ISIS now has a base in the city that is supported by JuD, which has pledged allegiance to the group. Because the applicant is a young man with a Western education, he fears he will be targeted and possibly killed by ISIS/JuD. The submission repeats the substance of the applicant’s earlier claims but provides no evidence regarding any harassment or other problems faced by his family in Pakistan since October 2016.
In support of his claims the applicant provided:
·     A copy of DFAT’s 2019 Country Information Report.
·     A Brookings Institute article entitled ‘Terrorism in Pakistan has declined, but the underlying roots of extremism remain’, dated 15 January 2021. It notes that reports indicate that terrorism related attacks in Pakistan had declined from nearly 4,000 in 2013 to 319 in 2020. It deals mostly with the Taliban, but also states that ISIS was responsible for recent attacks in Balochistan and that the government had recently begun to take action against LeT.
·     An article from the Hindustan Times dated 4 September 2021, which reports that the leaders of Pakistan and the USA saw ISIS as a common enemy, but provides no information on the group’s activities in Pakistan.
·     An article from The Hill dated 31 August 2021 which states that Pakistan security forces had killed an ISIS terrorist in Balochistan Province.
·     Smart Traveller Advice on Pakistan which lists various problems in Pakistan and warns of particular risks in Balochistan, KP, where terrorist attacks are most common, and Karachi where there is a high level of crime.
The applicant attended a hearing of the Tribunal on 5 October 2021. Much of his evidence was vague and confused.
The applicant confirmed that he had not faced any problems prior to his departure from Pakistan in December 2013 and that while there was some evidence of an ISIS presence in Pakistan during his visit in 2014, he did not experience any problems during that visit.
I noted that the applicant had previously stated that his father was harassed at the local market in 2014. He said that this was incorrect and stated that this incident occurred a couple of months after he returned to Australia in January 2015. He said that this was the first time his father had been harassed. The men insulted his father for sending him to Australia to study, but they were masked and nobody knew who they were or whether they were associated with any particular group. I asked the applicant what his father had done after he was accosted in this fashion. He said that he returned home.
I asked the applicant if his family had experienced any other problems prior to his next visit in August 2016. He said that whenever his father went out people approached him and pressured him to send his younger brother to join ISIS. I observed that this appeared to be at odds with his earlier evidence which suggested that his father had only been harassed on a small number of occasions. He said that his family had not provided him with a full account of events because they did not want to worry him, but he thought that they were harassed once or twice a month, but maybe it was more or less frequently. He said that ISIS and JuD were very active in the area at the time and they were trying to recruit young men, and his brother told him a lot of other people were harassed, but he did not know anyone who this had happened to personally. He was not sure if any of his family members had been physically harmed during that time, but they were mentally harassed and the police had not provided them with any assistance.

I asked the applicant if he had been aware of these problems prior to his return in August 2016. He said that his brother told him not to come to Pakistan because many groups were trying to recruit members and they were pressuring families, but he had no idea that his family was being pressured or that threats had been made against him personally. I noted that this appeared to be at odds with his earlier evidence that his brother told him not to return but had refused to explain why. His response was confused. He appeared to repeat his earlier claim that he was not told about the problems in Pakistan prior to his trip, but also stated that he knew about the problems faced by his family. I observed that he appeared to be changing his evidence, which caused me to doubt the veracity of his claims and advised him that I had difficulty accepting that his brother would have warned him not to return without explaining why. He said that he did not know what his family members were thinking.
The applicant said that when he arrived back in Sialkot in 2016 ISIS and JuD were very active in the area, but he did not know the details. He did not experience any problems during his visit in 2016 because his family were concerned for his safety and he remained mostly in hiding. To the best of his knowledge, none of his family members experienced any problems either, but they did not always tell him everything.
I advised the applicant that it was my understanding that the first time anyone in his family was harassed was after he returned to Australia in 2015 and from then until his return to Pakistan in August 2016 his father and other family members were harassed on numerous occasions in the street. He confirmed that this was correct.
I asked the applicant what his family had told him about the situation after he returned to Australia in October 2016. He said that he spoke to them on a number of occasions. They told him it was not safe in Pakistan and he should not return, but they did not give him any information about what was happening. He said that he had not been able to concentrate on his studies and he received notification from the Department that his visa was cancelled. After that he called his family to tell them that he was thinking of returning home, but they told him it was not safe because people kept asking about him and telling his family he should come home and fight for them.
I asked the applicant if his brothers had experienced any problems during that time. He said that they were also pressuring his younger brother to join the group, but his father would not allow him to go. To the best of the applicant’s knowledge, no other family members experienced problems during that time. I observed that this appeared to be at odds with his earlier evidence which stated that his father and brother had been beaten after he returned to Australia. He said that they had told him about this and the death threats when he was in Pakistan in 2016, but they had not said anything about being attacked after October 2016.
I asked the applicant where his younger brother currently resided. He said that he still lived in Sialkot but he did not go out much, although he sometimes went to his father’s shop.
I noted that the applicant had previously claimed that one of his cousins had been abducted by extremists. He confirmed that this was correct. He said that they had offered him financial incentives to join, but he had not done so and he was released by his captors without being harmed. The applicant said that this had occurred before his second trip to Pakistan.
I noted that it appeared that despite significant efforts, neither the applicant’s brother nor his cousin had been forced to join ISIS or any other extremist group and nobody in his family had experienced serious harm because of this, which suggested that he was unlikely to face serious problems with extremists if he returned to Pakistan. He said that he would still be pressured to join and he would face mental stress and would not be able to move freely.
I asked the applicant if members of this family had experienced any problems other than those we had already spoken about. He said that he had told me everything he knew but his family did not always tell him everything. I advised him that I had difficulty accepting that his family would not have told him what had happened to them in Pakistan when he sought information for his protection visa application. He said that that his family had been mentally and physical harassed, but they did not have any documentary evidence. I observed that he did not need such evidence to provide a complete account of the problems faced by his family. He said that he had provided all of the information of which he was aware.
I asked the applicant if he feared harm in Pakistan from anyone other than members of ISIS and JuD. He said that he did not.
I noted that the applicant had previously stated that ISIS was taking over the government of Pakistan. I advised him that this was not my understanding and noted that the government had conducted a number of campaigns against extremist groups which had reduced the capacity of these groups to operate in Pakistan. The applicant said that the government was not being taken over by ISIS but they were unable to provide protection unless the victim could identify the individuals who were harassing them.
I advised the applicant that I was aware that extremist groups continued to operate in Pakistan, but it was my understanding that the presence and activities varied across the country. I advised him that the only evidence I had located on an ISIS presence in Sialkot related to the arrest of several members in December 2015, and more recent evidence suggested that the group was mainly active in Balochistan, Sindh and southern Punjab. I observed that it appeared that ISIS currently had little or no presence in Sialkot. He said that extremist groups continued to have a strong presence everywhere in Pakistan.
I advised the applicant that country information on recruitment practices of ISIS suggested that they relied largely on existing networks and were more likely to recruit in poorer areas or amongst people likely to be sympathetic to their cause. I observed that none of the evidence suggested that the group used force or threats to recruit young middle-class men who do not have a history of supporting their cause. The applicant maintained that his claims were true.
I advised the applicant that it was my understanding that many young people from Pakistan studied overseas and advised him that I had been unable to locate any evidence which suggested that people with this background were targeted by extremists. He maintained that his claims were true.
I advised the applicant that I was aware that there were continuing problems with violence and terrorism in some parts of Pakistan. However, I had significant doubts about his claims and in my view the evidence did not suggest that he would be targeted by extremists or that he would face a real chance of serious or significant harm in Sialkot as a result of the general situation in Pakistan. The applicant said that extremist groups would come after him and his family and would push them even harder if he returned to Pakistan.
FINDINGS OF FACT
In essence the applicant claims that he would be at risk of harm if he returned to Pakistan because members of ISIS and/or JuD are determined to recruit him to fight for them and because they disapproved of him because he has studied in Australia. For the following reasons I do not accept either of these claims.
In the first place, the applicant’s evidence regarding the problems which his family faced as a result of the attempts to recruit him and his brother to fight for ISIS was vague, inconsistent and generally unpersuasive. He claimed at different times that his father was harassed only three or four times, that he was harassed whenever he left the house and that he was harassed about one or twice a month between January 2015 and August 2016. He claims that his brothers were also harassed but he has provided no details of this despite having ample opportunity to do so. In his written submission to the Tribunal he claimed that his father and brother were beaten after he returned to Australia in October 2016. At the hearing he initially stated that he was not aware of any member of his family being physically abused but changed his evidence when I reminded him of his earlier claims and claimed that his brothers had told him they were physically abused at some time in the past while he was in Pakistan in 2016. He claims that his younger brother continues to be of interest to ISIS but he has not provided any details relating to any harassment after late 2016. And I find the claim that members of ISIS or JuD or any other group would continue to harass the applicant’s family in order to force or encourage his brother to join the group for over six years without succeeding in their campaign implausible.
The applicant sought to explain the problems with his evidence regarding the problems faced by his family by claiming that they did not tell him everything because they did not want to worry him. However, this does not explain why he has given differing accounts of events in Pakistan. Furthermore, I do not accept that he would not have sought and obtained a reasonably detailed account of events from his family when he decided to apply for protection. I find his failure to provide a reasonably complete and consistent account of the problems faced by his family in Pakistan a strong indication that he has not provide an accurate account of these events.
Secondly, the applicant’s claim that members of ISIS/JUD have had a significant and active presence in Sialkot since at least 2015 is at odds with the independent country information. According to the available evidence, a small ISIS/JuD cell in the city was destroyed when the members were arrested in 2015. No evidence was located which suggested that ISIS/JuD has had a significant presence in Sialkot after that time. More recent evidence indicates that government campaigns have reduced the presence and capability of both groups throughout Pakistan and that ISIS is mainly active in areas such as Balochistan, KP and southern Punjab.
More significantly, the applicant’s evidence regarding the manner in which ISIS/JuD attempted to recruit him and his brother is at odds with the independent information on the practices of these groups, none of which suggests that either group attempts to recruit middle-class men with no previous interest in their ideology to fight for them by threatening to harm them or their families. According to the evidence set out above, JuD would only accept recruits who wanted to fight if they had the permission of their families. While I acknowledge that not all of the activities of extremist groups or their methods of operation are known or appear in reports, in this case the evidence set out above comes from reliable sources and in my view contains sufficient detail to support a finding that the claims made by the applicant are implausible and lack credibility.
In reaching this conclusion I have considered the country information provided by the applicant. However, while it confirms that extremist groups continue to operate in Pakistan, none of it contains any information which contradicts the overview set out above or supports the applicant’s claims regarding the presence of ISIS/JuD in Sialkot after 2015 or their recruitment methods.
Thirdly, I find the claim that ISIS or JuD or any other group would persistently harass the applicant’s family over a period of more than six years in order to recruit him and his brother without any success and without carrying out their threats of violence and implausible.
Fourth and finally, I am unaware of any independent evidence which suggests that ISIS or any other extremist groups in Pakistan issue demands for students to return from western countries because they disapprove of such studies. As noted above, DFAT advice suggests that people returning to Pakistan after seeking protection abroad are not generally at risk of discrimination or violence. In these circumstances and in light of the other problems with the applicant’s credibility, I do not accept this claim.
While some of the issues raised above are minor and considered in isolation would not have caused me to reject the applicant’s claims in their entirety, most are significant matters. After considering all of the evidence, I do not find him to be a truthful or a credible witness.
I do not accept that members of the applicant’s family were harassed and pressured by ISIS or JuD or any other extremist group at any time in an attempt to recruit him and his brother or to force him to return to Pakistan because they disapproved of him studying abroad. It follows that I do not accept that his family warned him that these groups were looking for him or that they reported their problems with extremist groups to the police or that the applicant was in hiding for most of his 2016 visit to Pakistan. I believe that the applicant concocted these in order to support his application for protection in Australia.
CONSIDERATION OF CLAIMS
As discussed above, I do not accept that the applicant or any member of his family was harassed or threatened by members of ISIS or JuD or any other extremist group to force him to return to Pakistan so that he could be recruited or punished for obtained a western education in Australia. It follows that I do not accept that there is a real chance he will experience serious or significant harm on return to Pakistan because of these had threatened him and his family in the past.
I have also considered whether that extremist groups such as ISIS or JuD would seek to recruit the applicant if he returned to Pakistan or would seek to harm him because of his refusal to join the group or because he studied in Australia. However, according to the available evidence the ability to extremist groups to operate in Pakistan has reduced significantly in recent years and there is no credible evidence before me which suggests that ISIS or JuD or any other extremist group has a strong presence in Sialkot or that they are currently recruiting young men in Sialkot such as the applicant to join or fight for the group or that young men in Sialkot for refuse to join the group or who have a western education have been threatened or harmed. I do not accept there is a real chance that the applicant would be pressured or forced to join an extremist group if he returned to his home in Sialkot or that there is a real chance that he would be threatened or harmed by such an extremist group because he has studied in Australia.
After considering all of the relevant evidence, I am not satisfied that there is a real chance that the applicant will face serious or significant harm at the hands of ISIS or JuD or any other extremist group for any reason if he returns to Pakistan within the reasonably foreseeable future.
The applicant does not claim to fear harm from a group or individual in Pakistan other than ISIS and JuD. Nevertheless, I have considered whether there is anything in the evidence regarding the general situation in Pakistan which suggests that he would face a real chance of suffering serious or significant harm on his return. However, this is not the case.
While I acknowledge that Pakistan continues to face problems relating to political, sectarian and extremist violence, as noted above the level of violence has declined significantly in recent years. The applicant does not belong to a minority religious group, there is no suggestion that he has had any involvement in politics or that he is associated with any group listed as a likely target of political, sectarian or extremist violence. Sialkot is not located in one of the areas most affected by violence, such as Balochistan or KP. There is no credible evidence before me which suggests that any member of the applicant’s family has experienced harm of any kind at any time.
After considering all of the available evidence, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm for any reason if he returns to Pakistan within the reasonably foreseeable future.
DOES THE APPLICANT MEET THE REFUGEE CRITERION?
After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm for any reason if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution in Pakistan for any of the reasons set out in Australian law.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Pakistan for any reason. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
CONCLUSIONS
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 s.36(2)(a).
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).
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…

[2021] AATA 4514

14 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice