1821622 (Refugee)

[2020] AATA 5149

1821622 (Refugee) [2020] AATA 5149 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821622

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE:28 October 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

Statement made on 28 October 2020 at 9:08am

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – political opinion – anti-TTP and anti-radical Islamic militant convictions and activities – particular social group – member of the Mangal tribe – tribal chief – ‘Malik’ designation – appointment of a Malik in absentia – departure from strict primogeniture in the transfer of the Malik designation – effectiveness of state protection – reasonableness of internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AFD17 v Minister for Immigration & Anor [2018] FCCA 1376
Appellant S395/2002 v MIMA (2007) 233 CLR 51
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

RELEVANT MIGRATION HISTORY

1. The applicant’s movement history is as follows:

   ·Granted [a] Student visa on 6 November 2008

   ·Entered Australia on [the] Student visa [in] November 2008

   oGranted [a] Student visa on 29 May 2009.

   oGranted [a] Student visa on 10 September 2010.

   oGranted [a] Student visa on 8 July 2011.

   oGranted [a] Student visa on 9 October 2012.

   ·Departed Australia for Pakistan [in] November 2012.

   ·Entered Australia from Pakistan [in] December 2012.

2. The applicant then applied for an XA-866 Protection visa on 21 August 2013.

IDENTITY

1. The applicant provided a copy of his Pakistan passport, bearing an issue date [in] 2012, to the Department with his application for protection.  There is no reason to doubt the validity of this document.  I have reviewed this passport and have had the opportunity to interview the applicant on three occasions.

2. On the basis of the information before the Tribunal, I find that the applicant is a citizen of Pakistan, which is also the receiving country for the purposes of the refugee and complementary protection assessments. 

WHAT IS THE BACKGROUND OF THIS APPLICATION?

Introduction

1. The applicant originates from [Town 1] in the district of Kurram, Khyber Pakhtunkhwa Province, Pakistan.  He applied for a protection visa on 21 August 2013. 

2. He seeks protection in Australia under s.36(2)(a) of the Act, and claims to hold a well-founded fear of persecution in Pakistan now and for the foreseeable future for the essential and significant reason of the prominent profile of his extended family; his own actual or imputed personal profile as an opponent of the Taliban in Pakistan; his actual or imputed profile as a tribal Malik since the death of his grandfather; and, as a failed asylum seeker.

3. He also seeks complementary protection in Australia under s.36(2)(aa) of the Act on the grounds that his mental and physical health conditions preclude him from being returned to Pakistan now or in the reasonably foreseeable future.

Delegate’s decision

1. In a written decision dated 13 December 2014, a delegate of the Minister refused to grant the applicant a protection visa.  The delegate summarised his reasons for refusing to grant the visa as follows:[1]

   [1]Delegate decision record, 24 January 2018, at (10).

   In summary, I have made the following findings in respect of the applicants material claims:

   ·     I accept that the applicant’s family relocated to Peshawar as the result of sectarian violence in [Town 1].

   ·     I do not accept that this applicant’s grandfather was a Malik or that he was killed for the reasons claimed by the applicant.

   ·     I do not accept that the applicant was or is a Malik.

   ·     I do not accept that the applicant was attacked on 25 November 2012.

   ·     I do not accept that the applicant received a threat letter.

   ·     I do not accept that the applicant’s brother was kidnapped.

   ·     I do not accept that the applicant has a profile that is of interest to the Taliban.

   Having considered the applicant’s Visa application; migration history in Australia; discrepancies in their claims; and interview testimony, it is far more probable, in my view that the applicants only applied for a protection visa in a bit attempt to remain in Australia. I therefore do not accept the applicant’s claims as credible or genuine. It is far more probable in my view that the applicant has applied for a protection visa in order to prolong his stay in Australia, rather than for the reason of possessing a well-founded fear of returning to Pakistan.

Previous review

1. Shortly after receiving this written refusal decision, the applicant applied to the Tribunal for a review of the delegate’s decision.  On 21 December 2016 the Tribunal, as previously constituted, affirmed the delegate’s decision (original Tribunal decision).

2. The applicant then applied for judicial review of the original Tribunal decision.  On 28 June 2018, the original Tribunal decision was set aside by Driver J of the Federal Circuit Court.  His Honour found that the Tribunal, as previously constituted, failed to make reasonable enquiry relating to a support letter written in relation to the applicant’s principal claim to have been designated a traditional ‘Malik’ on nomination of a senior member of the National Parliament.[2]  Importantly, this related to the original Tribunal decision finding that the applicant was not a ‘Malik’ for the purposes of the review.[3]

   [2]AFD17 v Minister for Immigration and Anor [2018] FCCA 1376, at [22]–[41].

   [3]Original decision at [64].

3. The matter was then re-constituted to the Tribunal as presently constituted by order of the Court.

Present review proceedings

1. The applicant appeared in person before the Tribunal on two occasions.  The applicant appeared in person at a hearing on 17 April 2019 and again on 13 January 2020.  With the agreement of the applicant and his representative, a further, third hearing was held by videoconference using the MS Teams platform on 16 September 2020. 

2. As discussed below, by letter dated 6 March 2019, the Tribunal wrote to the applicant and invited him to make submissions relating to the judicial decision that remitted the application back to the Tribunal for determination according to law. 

3. By letter dated 12 June 2020, the Tribunal wrote to the applicant in the following terms, pursuant to s.424A of the Act:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are contained in Attachment A. 

   This is information which, if it was accepted, would be the reason or part of the reason for affirming the decision under review. This is because, firstly, the information suggests that, since the beginning of 2019, there has been no targeting of the Mangal tribe by the Taliban in Pakistan or other agents of harm operating in Kurram for the essential and significant reason of their membership of that particular social group.

   Second, the information suggests that no person has been appointed Malik in the region in absentia. Third, while designated Maliks have historically been targeted in the region, all of the relevant reported cases involve Maliks who have particular profiles of active leadership within their local communities, security forces or Jirgas.

   This information is information which, if accepted, would be the reason, or part of the reason, for finding that you would not face a real chance of serious harm on return to Pakistan now or in the reasonably foreseeable future for the essential and significant reason of being either an ethnic Mangal, or a politically appointed Malik.

   You are invited to give comments on or respond to the above information in writing.

The Tribunal’s decision, as presently constituted, in summary

1. After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed.

2. In particular, I find that the applicant faces a real chance of persecution if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his current and future, actual or imputed anti-radical/anti-TTP political opinion as a person with the status of traditional clan or tribal Malik.  This real chance of persecution relates to all areas of Pakistan.

DECISION MAKING FRAMEWORK

President’s Direction

1. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

·     that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[4] and

·     that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[5]

[4]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

[5]At [8.1].

1. As noted above, I exercised the discretion to hold the third hearing via MS Teams video.  The hearing was held during the COVID-19 pandemic.  I determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. 

2. In making these alternative arrangements, I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.  I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised.  I was able to interact with the applicant and his representative and all parties were able to maintain line of sight and maintain appropriate communication throughout the proceedings.

Applicable legal principles

Applicant credibility

1. The task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[6]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

   [6]E.g. Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

2. As noted by Nichols J in the recent Federal Circuit Court decision in DAJ19 v MI:[7]

   [7][2020] FCCA 2141 (5 August 2020), at [69]–[71].

   69.There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80] [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).

   70.The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):

   “30.The relevant principles can be summarised as follows.

   (1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review:  CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

   (2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

   135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   (Emphasis added)

   (3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

   (4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

   56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error.  That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa.  Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

   (citations omitted)

   (5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”

   71.… the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]-[28]):

   “41. For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.

   (a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.

   (b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

   (c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae.  Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context.  The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case.  Those matters inform an assessment of the seriousness or gravity of the error.

   (d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

   (e) Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered.  Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).

   (f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”

1. In Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[8] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[9]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

   [8](1996) 40 ALD 445.

   [9]At 482.

1. I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[10] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[11]

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

   [10](1996) 185 CLR 259.

   [11]At [25].

2. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor are decision makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:

   where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[12]

   [12][1997] FCA 1198 at (11).

3. Nevertheless, as Burchett J counselled,[13] it is necessary to:

   … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

   [13]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

4. The Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[14] 

   [14]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.

5. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[15]  Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.  That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[16] 

   [15]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

   [16]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

1. In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[17]  This is sometimes referred to as the ‘what if I am wrong’ consideration.  I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[18]

   … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

   [17]MIMA v Rajalingam (1999) 93 FCR 220.

   [18](1999) 197 CLR 510 at [191].

1. On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

2. If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  In this respect, in Iyer[19] the Tribunal there had concluded that certain return visits to Sri Lanka from Australia were voluntary.  This (so the Tribunal reasoned), supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. 

   [19]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

3. The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[20]  I recognise that such a principle cannot be relied upon as an iron rule.  However, it is potentially a useful illustration of the kind of weighing process that an objective decision maker must make when making findings relevant to the existence of a well-founded fear of persecution.  Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence.  This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.

   [20]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

4. In this respect, I note the comments of Flick J,[21] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:

   31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny.  Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

   [78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

   [21]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].

5. As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[22]

   … Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis.  While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

   (a)      failure to afford procedural fairness;

   (b)      reaching a finding without any logical or probative basis;

   (c)      unreasonableness; and/or

   (d)      jurisdictional error as discussed by Flick J in SZVAP.

   [22]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].

6. The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling.  In this respect, I note that, later in the same judgement,[23] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9^th Circuit Court of Appeals decision in Stoyanov v INS[24] (Stoyanov):

   The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’: 

   [23]CQG15 v MIBP [2016] FCAFC 146 at [43].

   [24](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.

7. I note also, that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be.  Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:

   … the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

   In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

8. Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[25]

   32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).

   33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others.  To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’:  S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’:  S20/2002 at [49]; and Chen at [35].

   34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness. 

   [25]Per Rangiah, Perry and Bromwich JJ.

9. In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:

   It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[26]

   [26]At [8].

10. The Guidelines also advise that:

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.

    A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

    However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[27]

    [27]At [17]–[19].

11. With respect to contradictions, inconsistencies and omissions, the Guidelines state:

    Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

    The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[28]

New claims and evidence

[28]At [27]–[28].

1. Applicants are required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.

2. This principle is enshrined at s.5AAA of the Act, which clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view a Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[29]

   [29]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

3. As a general principle, therefore, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.  Of particular relevance here is the ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity.

4. Accordingly, it may be open to the Tribunal to draw an inference unfavourable to the credibility of a claim or evidence where the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented at the first reasonable opportunity.

5. In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[30]

COVID-19-related claims

[30]At [9].

1. It is acknowledged that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia.  I note that this decision is not a decision on removal.  However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.  Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Pakistan generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.[31]

   [31]SZTAL v Minister for Immigration [2016] FCAFC 69.

Criteria for a protection visa

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

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

4. 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 a protection 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 the applicant 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’).

Mandatory considerations

1. 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.

PROCEEDINGS OF THE CURRENT TRIBUNAL

Preliminary

1. Following the orders of Driver J in AFD17 v Minister for Immigration & Anor [2018] FCCA 1376 (28 June 2018) (AFD17), the matter was remitted back to the Tribunal to be redetermined according to law.

2. The specific passage of Driver J in AFD17, referred to in the Tribunal’s letter to the applicant dated 6 March 2019 which gave rise to the present proceedings provide as follows:

   Ground 1 – did the Tribunal constructively fail to exercise its jurisdiction by failing to take evidence from the member of the Pakistani National Assembly who provided a letter of support for the applicant?

   22.  The Tribunal's rejection of the applicant's claims was based entirely on a finding that he had ‘fabricated his most significant claims’ and was ‘not a truthful or credible witness’.  Although the Tribunal refers to ‘significant inconsistencies’ which it says were put to him at the hearing and had been summarised in the Tribunal's reasons, it is not clear from the Tribunal’s reasons exactly what these inconsistencies were.

   23.  A crucial element of the applicant's claims, however, was that he came from a prominent family who held the title of ‘Malik’, which imposed certain obligations of them and which also made them a particular target of the Taliban.  He claimed that his grandfather had been murdered because of his position and that the title had been transferred to him, placing him in danger of the same fate.  A central piece of evidence relied on by the applicant was a letter from the Member of Parliament representing his constituency, which confirmed that the applicant had been designated as his grandfather's replacement as Malik and that when he had returned to Pakistan to offer prayers at his grandfather's grave he had been attacked by the Taliban and threatened with the same fate.

   24. The Tribunal rejected this claim outright at [64]. In regards to the letter from the MP, the Tribunal said at [66] that it placed ‘little evidentiary weight’ on it. It is not clear whether the Tribunal did not believe the document was authentic (it did refer to ‘the prevalence of document fraud in Pakistan’), or whether it accepted that it was a genuine letter but believed that the MP was lying.

   25.  The applicant had requested the Tribunal to contact the MP.  The Tribunal decided not to do so, with the explanation: ‘because I think his statement spells it out pretty clearly’.  Although the explanation is somewhat opaque, the applicant contends that the most likely interpretation is that the Tribunal considered the MP was lying and would merely repeat those lies if questioned.

   26.  The applicant contends that the only available inference is that the Tribunal ‘did not care’ whether the letter was genuinely written by the named MP or not.  The applicant contends that the Tribunal took the view that if the letter was authentic, then its contents were lies.

   27.  In Wei v Minister for Immigration, Nettle J at [49] set out the line of authority leading to conclusion of the majority in Minister for Immigration v SZIAI that there may be circumstances in which the failure of an administrative decision maker to make ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’ could amount to a constructive failure to exercise jurisdiction.

   28. Whether or not the applicant's grandfather had been a Malik, and whether or not that title had been passed to the applicant, were critical facts in the Tribunal's reasoning about whether he might be at risk on return to Pakistan, as acknowledged by the Tribunal in the final sentence of [64].

   29.  The letter is on official letterhead and contains contact details, including telephone numbers.  Any concerns about the authenticity of the letter could easily have been addressed by checking publicly available information in order to contact the MP.

   30.  Assuming that the Tribunal did consider the letter to be authentic, then the veracity of the contents could have been tested by the Tribunal questioning the author. For example, an important piece of information which the Tribunal could have put to the MP for comment was the claim by the applicant that the MP had made his own inquiries with local authorities to confirm that the attack on the applicant had actually occurred.

   31.  The Minister resists this ground on the following basis.

   32.  The applicant’s submissions suggest that the Tribunal could have sought to question the author of the letter about whether he had made his own enquiries about the claimed attack on the applicant.  However such inquiries cannot be said to be an ‘obvious’ inquiry about a critical fact, the existence of which is ‘easily ascertained’ within SZIAI.  All they would do is add to the evidence of the letter writer without any independent basis to suggest that he was truthful.  The fact that it may have been reasonable for the Tribunal to make the inquiries sought does not mean that it was obliged to do so.

   33.  It may be noted that the letter at CB 121 was submitted to the delegate, who was not prepared to accept its contents given contrary country information including on document fraud in Pakistan.  Despite this, the applicant submitted the same letter again to the Tribunal.  The Minister submits that if the applicant wished to elicit further evidence from the author of the letter then it was for him to do so, and the Tribunal was not obliged to do so in his stead.  It was for the applicant to put whatever evidence he wished before the Tribunal.

   34.  I prefer the applicant’s submissions on this ground.  The letter from the MP is reproduced at CB 121 and 192.  There is nothing on the face of the letter to suggest that it is a fabrication. The author states that he knows the applicant personally.  The author is apparently aware that the applicant is seeking protection in Australia and states that the applicant accepted the office or status of a Malik in Australia.  The letter is generally corroborative of the applicant’s claims.  The author invites further queries to be made to him about the information given in the letter.

   35.  While the Tribunal acknowledged at [64] that a person who is a Malik in Pakistan would be at ‘some risk’ of targeting for serious harm, the Tribunal did not accept that the applicant is a Malik as claimed.  The Tribunal dealt with the letter from the MP in the following terms:

   Having found, based on all the evidence, that it does not accept the applicant’s claim that he spoke out as claimed during his return visit to Pakistan, and therefore was not spied on or reported on to the Taliban or to anyone else, the Tribunal does not accept that claim that his family received a threatening letter from the Taliban commander of Kurram Agency, or from anyone else.  Having regard to all the evidence, and to the country information in relation to the prevalence of document fraud in Pakistan, the Tribunal places little evidentiary weight on the relevant documents submitted by the applicant in support of the claimed threats by the Taliban, including the letter from ..., Member of the National Assembly.

   36.  It might be thought from that paragraph that the Tribunal regarded the letter as a fabrication.  The letter had been presented to the delegate who found it to be misleading. Relevantly, the delegate stated:

   The above country information indicates that the status of Malik is granted by the PA and not a member of the Pakistan National Assembly.  The above cited country information is not consistent with the details contained in the letter in which [the MP] states that ‘I recommend [the applicant] to be the next Malik & informed him via phone ......[the applicant] confirmed & accepted the Malik status while in Australia.’  The letter provided by the applicant is misleading and is not consistent with country information cited above.  I note that the applicant stated that [the MP] is a ‘family friend’.  As stated earlier, document fraud is prevalent in Pakistan and no assessment, as far as the decision maker is aware, has been made in relation to the genuineness or otherwise of the letter.  For the reasons provided above, I do not accept that the applicant was offered the position of Malik.

   37.  However, it does not appear that the Tribunal adopted the delegate’s reasoning.  First, at the Tribunal hearing, the Tribunal appeared to accept that the letter was authentic.  Further, at [93] the Tribunal appeared to adopt country information which supported the role of Members of Parliament in the nomination of Maliks.

   38.  The only reason given by the Tribunal for not contacting the MP was that the contents of his letter ‘spells it out pretty clearly’.

   39.  It is tolerably clear that the applicant asked the Tribunal to contact the MP in order to address the adverse finding made by the delegate about the letter.  Further, the applicant had nominated the MP as a witness in his response to the hearing invitation.  In that response, the applicant provided two telephone numbers for the MP and explained why he wanted the Tribunal to take evidence from him.

   40. While the Tribunal was not bound by the Migration Act to call the witness, in the circumstances of this case, it should have done so. The MP was an apparently credible witness in a position to provide information that was potentially determinative of the question of whether the applicant was a Malik as he claimed. Further, the MP could have explained the circumstances in which the applicant became a Malik. The enquiry was an obvious one and could have been readily made (or attempted) by using the telephone numbers provided by the applicant.

   41.  In my opinion, the circumstances of this matter place the case into the confined category of cases in which the Tribunal came under an obligation to enquire.  I find that the first ground has been established.

3. By letter dated 6 March 2019, I wrote to the applicant’s representative in the following terms:

   The Tribunal refers to the Orders and Reasons given by Judge Driver of the Federal Circuit Court of Australia on 28 June 2018 in the matter of AFD17 v MIA [2018] FCCA 1376 (AFD17) (attached).

   The Tribunal refers in particular to paragraphs [22]-[41] of his Honour’s reasons.  The Tribunal invites the applicant to make further written submissions on the matters addressed in this part of the reasons of the Court, or any other relevant matters.  In particular, the Tribunal invites any additional corroborating evidence to support the evidence discussed at this part of the reasons of the Court.  In the even that such evidence is in a language other than English, certified translations should also be provided.

   The information should be received by 3 April 2019.  If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

4. A written submission of 27 pages, in the most general terms, was subsequently received on 10 April 2019 from the applicant’s representative.  This submission did re-state the broad claims made by the applicant and provided a large amount of source material in the nature of country information.  However, as discussed in person with the representative at the hearing, I note in passing that the written submission entirely failed to engage meaningfully with the written invitation to respond dated 6 March 2019 (referred to above) and did not address any of the comments of Driver J in AFD17.

5. As indicated above, by letter dated 12 June 2020, the Tribunal wrote to the applicant in the following terms, pursuant to s.424A of the Act:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are contained in Attachment A. 

   This is information which, if it was accepted, would be the reason or part of the reason for affirming the decision under review.  This is because, firstly, the information suggests that, since the beginning of 2019, there has been no targeting of the Mangal tribe by the Taliban in Pakistan or other agents of harm operating in Kurram for the essential and significant reason of their membership of that particular social group.

   Second, the information suggests that no person has been appointed Malik in the region in absentia.  Third, while designated Maliks have historically been targeted in the region, all of the relevant reported cases involve Maliks who have particular profiles of active leadership within their local communities, security forces or Jirgas.

   This information is information which, if accepted, would be the reason, or part of the reason, for finding that you would not face a real chance of serious harm on return to Pakistan now or in the reasonably foreseeable future for the essential and significant reason of being either an ethnic Mangal, or a politically appointed Malik.

   You are invited to give comments on or respond to the above information in writing.

6. The applicant responded to this invitation in the form of a Statutory Declaration, declared on 3 July 2020.  This response is considered in detail below.

7. As discussed below, it became necessary to interview the author of the relevant support letter (purporting to be from Pakistan MNA [Mr A]) that formed the basis of the court remittal to the Tribunal as presently constituted.[32]  This was the only available option open to the Tribunal in order to independently verify whether or not the applicant’s claim to have been appointed a ‘Malik’ was credible.[33]  At the hearing on 16 September 2020, the Tribunal contacted MNA [Mr A] by telephone using the contact number nominated for MNA [Mr A] on the official website of the National Assembly of Pakistan.

   [32]AFD17 v Minister for Immigration and Anor [2018] FCCA 1376, at [22]–[41].

   [33]Original decision at [64].

8. In passing, I note the reference of Driver J in his Honour’s reasons for the order of remittal at [27] as follows:

   In Wei v Minister for Immigration, Nettle J at [49] set out the line of authority leading to conclusion of the majority in Minister for Immigration v SZIAI that there may be circumstances in which the failure of an administrative decision maker to make ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’ could amount to a constructive failure to exercise jurisdiction.

9. It should be noted that this Tribunal has no investigatory resources beyond its helpful and professional library staff; some access to the country information service of the Department (depending on the accessibility of DFAT staff in post for local information); and, internet search engines.  All of these resources were applied to the task in this instance, without much information of utility being discovered. 

10. It is acknowledged that the bona fides of a letter of support and those of the author of such a letter may, indeed, qualify as ‘obvious inquir[ies] about … critical fact[s]’ in the sense described by Nettle J extracted above.  However, the DFAT warning about the ubiquity of document fraud in Pakistan referred to in both the Tribunal decision in the first instance and accepted by his Honour above in the decision on remittal, both indicate the actual background circumstances against which this Tribunal must make reasonable assessments of critical facts.  It is not entirely clear how a Tribunal (operating within a constrained statutory framework within extremely limited resources and the equally limited sources of relevant independent information) can diligently assess the identity of a particular named witness in Pakistan (even one with the status of a national assembly member) over the telephone, or indeed whether such a preliminary task might be described as verifying a fact; ‘the existence of which is easily ascertained’. 

Proceedings in person

1. The applicant appeared in person before the Tribunal as presently constituted to give evidence and present arguments on four occasions: firstly, on 8 April 2019 then on 21 May 2019, again on 27 May 2020 and finally on 16 September 2020.  The first two hearings were held in person.  The final hearings were held via videoconference due to the COVID-19 restrictions.  During the final hearing, the Tribunal contacted the applicant’s nominated witness by telephone.  This is discussed further below.

2. All hearings were held with the assistance of interpreters fluent in the Pashtun, Urdu and English languages.

Further invitation to respond

1. By letter dated 12 June 2020, I wrote to the applicant’s representative in the manner required under s.424A of the Act enclosing a summary of recent and relevant country information in the following terms:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are contained in Attachment A.

   This is information which, if it was accepted, would be the reason or part of the reason for affirming the decision under review.  This is because, firstly, the information suggests that, since the beginning of 2019, there has been no targeting of the Mangal tribe by the Taliban in Pakistan or other agents of harm operating in Kurram for the essential and significant reason of their membership of that particular social group.

   Second, the information suggests that no person has been appointed Malik in the region in absentia.  Third, while designated Maliks have historically been targeted in the region, all of the relevant reported cases involve Maliks who have particular profiles of active leadership within their local communities, security forces or Jirgas.

   This information is information which, if accepted, would be the reason, or part of the reason, for finding that you would not face a real chance of serious harm on return to Pakistan now or in the reasonably foreseeable future for the essential and significant reason of being either an ethnic Mangal, or a politically appointed Malik.

   You are invited to give comments on or respond to the above information in writing.  Your comments or response should be received by 26 June 2020.

2. The applicant responded to this invitation in the form of a Statutory Declaration, declared on 3 July 2020.

3. The details of the foregoing information put to the applicant in writing and the applicant’s substantive responses are considered in the following paragraphs.

Targeting of the Mangal tribe by the Taliban in Pakistan and other agents of harm

Country Information put to the applicant

1. In the above letter of 12 June 2020, I put the following country information summary to the applicant and invited him to respond:

   a)The Mangal tribe is located in Kurram Agency in northwestern Khyber Pakhtunkhwa (KP) province, formally part of the Federally Administered Tribal Areas (FATA).[34]  The tribe is Pashtun and overwhelmingly follows the Sunni branch of Islam. [35]  No evidence has been found that members of the Mangal tribe are selectively targeted by the Taliban in Pakistan.[36]  Information has been found that indicates sectarian violence can flare in Kurram, and both Shia and Sunni tribes have targeted each other.  This may have been exacerbated by the arrival of Afghani Sunni refugees and mujahedeen in Kurram during the jihad against the Soviet occupation of Afghanistan in the 1980s.[37]  This appears to have continued post-2001 and the United States’ intervention in Afghanistan.[38]  Information has also been found that indicates Taliban groups have targeted Sunnis they believe have Shia sympathies.[39]  However the number of sectarian and overall attacks in Kurram has declined to none in 2019.[40]

   [34]‘FATA Tribes: Finally out of Colonial Clutches? Past, Present and Future’, Center for Research and Security Studies, 01 June 2018, p.8.

   [35]‘Can Shi’a and Sunni overcome the sectarian divide? Displacement and negotiations in Kurram, 2007-2011’ , Internal Displacement Monitoring Centre (via website of Dr Farhat Taj, University of Oslo), 01 May 2011, p.3; ‘A Glossary of the Tribes and Castes of the Punjab and North-West Frontier Province’, Printed at the “Civil and Military Gazette” Press, by Samuel T. Wilson, compiled by H.A. Rose, 31 December 1914, p 66.

   [36]Sources consulted include internet search engines; the European Asylum Support Office (EASO) COI Portal; the European Country of Origin Information Network (ECOI); ReliefWeb; the Immigration and Refugee Board of Canada (IRB); and UNHCR Refworld.

   [37]‘FATA Tribes: Finally out of Colonial Clutches? Past, Present and Future’, Center for Research and Security Studies, 01 June 2018, p.16; ‘The Battle for Pakistan: Militancy and Conflict in Kurram’, Mansur Khan Mahsud, New America Foundation, 01 April 2010, p.1.

   [38]‘The Battle for Pakistan: Militancy and Conflict in Kurram’, Mansur Khan Mahsud, New America Foundation, 01 April 2010, pp.1–3.

   [39]‘The Battle for Pakistan: Militancy and Conflict in Kurram’, Mansur Khan Mahsud, New America Foundation, 01 April 2010, p.5.

   [40]Pakistan Security Report 2019, Pakistan Institute for Peace Studies (PIPS), 05 January 2020, p.92.

   b)Sectarian violence in the Kurram Agency has been flaring up since before 1947:[41]

   [41]‘Taliban exploit Shi'a-Sunni divide in Pakistan’s Kurram Tribal Agency’, Jamestown Foundation, 17 April 2010.

   Kurram Agency, the only Shi'a majority tribal agency in Pakistan, has been the scene of Sunni-Shi'a sectarian clashes every five to seven years since the creation of Pakistan in 1947, and even before that. However, those clashes were never allowed to continue for more than two to three weeks before tribal leaders and government authorities would intervene.

   c)The sectarian violence has been exacerbated by the arrival of Afghan Sunni refugees and Islamic militants in Kurram over decades of conflict in Afghanistan.  A 1 March 2012 Times newspaper article interviewed Mariam Abou Zahab, a Paris-based security expert of sectarianism in Pakistan.  He noted sectarian violence over local resources has been exploited by the Taliban because of the strategic location of the Kurram agency. Zahab observed:[42]

   [42]‘The battle for Kurram’, Friday Times, The, 01 March 2012.

   The conflict is not tribal or sectarian per se, but instigated by the Taliban who want access to Afghanistan and are supported by local criminals. They use tribal and sectarian differences to fuel the conflict and keep the government out.

   d)Sectarian clashes have occurred frequently between the Shia Turi and Sunni Mangal tribes.[43]  The Mangal tribe has been accused by the Shia Turi of assisting the Afghan mujahedeen in 1987 and the Taliban in 2001.[44]  The Shia Turi have resisted Sunni militants including different Taliban groups, because of this, the Taliban have exploited the sectarian grievances between the Kurram tribes for their own interests.[45]

   [43]‘Can Shi’a and Sunni overcome the sectarian divide? Displacement and negotiations in Kurram, 2007–2011, Internal Displacement Monitoring Centre (via website of Dr Farhat Taj, University of Oslo), 01 May 2011, pp.5–8.

   [44]‘Can Shi’a and Sunni overcome the sectarian divide? Displacement and negotiations in Kurram, 2007-2011’, Internal Displacement Monitoring Centre (via website of Dr Farhat Taj, University of Oslo), 01 May 2011, p.5.

   [45]‘The Battle for Pakistan: Militancy and Conflict in Kurram’, Mansur Khan Mahsud, New America Foundation, 01 April 2010, pp.3–4.

   e)The two tribes clashed in 2008 after Islamic militants intervened to stop a peace treaty between Shia and Sunni tribes.  Militants attacked an army-protected Shia convoy which set off Turi/Mangal clashes in Upper Kurram which lasted for months.[46]  However the Talban blocked roads to all users including the Mangal tribe in Upper Karrum from 2008.  As the Tal-Parachinar road connecting Kurram agency with Peshawar was controlled by the Taliban, the Mangal tribe could not travel through Shia populated areas for fear of being attacked and killed by Shia tribes.[47]  The clashes from 2007 to 2008 killed approximately 2000 people.[48]  The number of dead included several Sunnis who were beheaded by the Taliban because of accusations of cooperating with Shias.[49]

   [46]‘Can Shi’a and Sunni overcome the sectarian divide? Displacement and negotiations in Kurram, 2007–2011’, Internal Displacement Monitoring Centre (via website of Dr Farhat Taj, University of Oslo), 01 May 2011, pp.8–9; Fighting Mangals Turi. ‘Two more die as fighting continues in Kurram’, The News (Pakistan), 18 September 2008.

   [47]‘Taliban exploit Shi’a-Sunni divide in Pakistan’s Kurram Tribal Agency’, Jamestown Foundation, 17 April 2010.

   [48]‘Tribe: Turi’, Program for Culture and Conflict Studies, Naval Postgraduate School, Program for Culture and Conflict Studies, Naval Postgraduate School, 01 January 2011.

   [49]‘The Battle for Pakistan: Militancy and Conflict in Kurram’, Mansur Khan Mahsud, New America Foundation, 01 April 2010, pp.3–4.

   f)In 2010, clashes between the Turi and Mangals started over control of water and forestry resources. The fighting continued for over seven days and the use of heavy weapons saw at least five killed and 12 wounded on both sides.[50]  In 2011 the Pakistan army began operations to remove militants and the road blockade was lifted by 2014.[51]  The presence of the Taliban, however, is resented by both Sunni and Shia tribes.[52]

   [50]‘Five killed in Kurram clashes’, The News (Pakistan), 25 May 2010.

   [51]‘Sunni Deobandi Shii Sectarian Violence in Pakistan: Explaining the Resurgence Since 2007’, Middle East Institute, Arif Rafiq, 01 December 2014, p.64.

   [52]‘The battle for Kurram’, The Friday Times, 01 March 2012, CX282763; ‘The Battle for Pakistan: Militancy and Conflict in Kurram’, Mansur Khan Mahsud, New America Foundation, 01 April 2010, p.8.

   g)Since 2009 the number of terrorist attacks, including sectarian attacks, has decreased in Pakistan.  The Pakistan Institute for Peace Studies (PIPS), security report of 5 January 2020 noted:[53]

   [53]‘Pakistan Security Report 2019’, Pakistan Institute for Peace Studies (PIPS), 05 January 2020, p.11.

   …there has been a gradual decrease in terrorist attacks and casualties since 2009 (with the exception of 2013, when a surge in sectarian violence mainly contributed to a rise in attacks and casualties).  Continuous anti-militant operational and surveillance campaigns by security forces and police counterterrorism departments, as well as some counter-extremism actions taken under the National Action Plan, have apparently helped sustain that declining trend 2013 onwards.

   h)Kurram recorded no attacks in 2019, however North Waziristan, which neighbours Kurram, recorded over 50 attacks in the same year.[54]  The PIPS report went on to warn:[55]

   However, these plummeting numbers do not suggest, in any way, that the threat of terrorism has been completely eliminated.  Certainly, most terrorist groups have been weakened but they are still present in physical and virtual spaces.

   i)Despite an overall decrease in terrorist incidents in the country, such reported incidents from Khyber Pakhtunkhwa remained unchanged from previous year.  Indeed, North Waziristan remerged as a major hotspot of such violence where over 42 percent of the total 125 reported attacks from KP concentrated.  The problem of a lax state response to the security challenge of KP is partly linked to continuing slow transition of implementation of erstwhile FATA’s merger in KP, mainly due to multiple bureaucratic, political and legal hurdles, which need to be addressed immediately.

Substantive applicant response

[54]‘Pakistan Security Report 2019’, Pakistan Institute for Peace Studies (PIPS), 05 January 2020, p.92, KP (including erstwhile FATA).

[55]‘Pakistan Security Report 2019’, Pakistan Institute for Peace Studies (PIPS), 05 January 2020, p.11.

1. In his statement in response (dated 3 July 2020), the applicant declared as follows:[56]

   It should be noted that Kurram agency is a volatile area and consists of various tribes including Mangal.  The news reports generally may not specifically identify or report the name of the tribe who experience the attacks.  On the other hand, they generally say the attacks against tribe.  Due to that, though the evidence may not seem to suggest that there are attacks against Mangal but the reports do suggest and indicate and confirm that there are attacks against Tribal groups by the terrorist organizations or by the other tribes.  I request the Tribunal to have an open and liberal consideration in this regard.  Even though there may not be clear evidence of killing against Mangal tribe I 2019/20, however, the evidence of killing of tribal members in the recent times should be taken as circumstantial evidence to establish the fact that there is ongoing attacks against Tribe members.

   [56]At (1).

2. The applicant thereafter indicated that persons with a particular profile of opposing the Taliban in the region continue to be at risk of particularised harm.  He also referred to claimed targeted attacks against his grandfather in 2010; a former PPP leader in 2013; and, a former leading Shia Cleric in 2014.  The applicant stated that:

   People like me in Mangal tribe face particularly vulnerable attacks because the extremists within the Mangal tribe and the Taliban consider people like me who hold active opinion against Islamic extremism and Taliban's inhuman activities as their enemies.  They consider people like me who have significant adverse profile (which I have explained in my previous statements and in my hearing and I believe that the Tribunal seems to accept my significant adverse profile) as traitors.  The Taliban and its affiliated terrorist and extremist groups are particularly angry against people like me to teach a lesson because from their perspective, the targeted attacks against people like me who openly and honestly express political opinion and activities which from the perspective of Taliban and its affiliated organisations are anti-Islamic would further strengthen their profile as the people who protect pure Islam.  This is the particular profile a person who belongs to Mangal tribe but holding an active opinion against Taliban like me will attract adverse concern of the Taliban.  Since Mangal tribe belongs to Sunni and Taliban promotes itself as guardians of Sunni Islam, the Taliban considers or perceive any Mangal who expressly or passively challenge their authority are their enemies. Once they form a view and identify a person as their enemy they will wait for a suitable time to target and kill them. It happened in the past and if there is evidence to suggest that it happened in the past, it is reasonable to conclude that it will happen in foreseeable future as well.

3. It is noted that the applicant asserts that he has a similar profile to the persons referred to who were the victims of targeted violence in 2010, 2013 and 2014 respectively.  The basis for the applicant’s assertion that he has an equivalent profile in Pakistan to either a political party leader or a religious leader of a minority Islamic sect is noted.

4. Nevertheless, the applicant’s submission in response failed to engage meaningfully with the inference drawn from currently available country information that, since the beginning of 2019, there has been no targeting of the Mangal tribe by either the Taliban in Pakistan (TTP) or other agents of harm operating in Kurram for the essential and significant reason of their membership of that particular social group. 

5. While past events is no sure predictor of future outcomes, the clear trend of available country information suggests that there is no real chance of the applicant experiencing serious harm now or in the reasonably foreseeable future in Pakistan for the essential and significant reason that he is a member of the particular social group, member of the Mangal tribe, being innate or immutable characteristics of the group which are shared by the applicant. 

6. Accordingly, for the purposes of the present review, I find that the applicant does not hold a well-founded fear of persecution for the purposes of s.36(2)(a) of the Act now or in the reasonably foreseeable future in Pakistan for the essential and significant reason that he is a member of the particular social group, members of the Mangal tribe, being innate or immutable characteristics of the group which are shared by the applicant.

‘Malik’ designation in Kurram agency in northwestern Khyber Pakhtunkhwa (KP) province

Country Information put to the applicant

1. In the above letter of 12 June 2020, I put the following country information summary to the applicant and invited him to respond:

   a)Country information confirms that the designation of Malik indicates a tribal chief.  While the designation is generally inherited by the eldest son, Maliks are appointed by federal government officials called Political Agents (PA).[57]  However inheritance may influence a PA’s decision to grant Malik status.[58]  The position can entitle the holder to legal, administrative and political powers.[59]  The PA provides stipends to Maliks in line with their perceived status in the government’s eyes.[60]  Since 2018 the former Federally Administered Areas (FATA), which included Kurram Agency has been integrated with and merged into the province of Khyber Pakhtunkhwa.[61]  However, is not clear if the privileges of the Maliks still hold since being merged into the Khyber Pakhtunkhwa province.[62]

   [57]‘Traditional Structures in Local Governance for Local Development: A Case Study of Pakhtun Residing in NWFP & FATA, Pakistan’, The World Bank, 01 January 2005, p.14.

   [58]‘Pakistan: Countering Militancy in FATA’, International Crisis Group, 01 October 2009, p.3.

   [59]‘Pakistan’s tribal areas: ‘Neither faith nor union found’’, Aljazeera, 10 September 2019.

   [60]FATA - A Most Dangerous Place', Shuja Nawaz, Center for Strategic and International Studies, 01 January 2009, p6.

   [61]‘Administrative System - Federally Administered Tribal Areas (FATA)’, Government of Pakistan, date not specified.

   [62]‘Administrative System - Federally Administered Tribal Areas (FATA)’, Government of Pakistan, date not specified.

   b)The system which the British built during the colonial period in Pakistan was to serve a selected few and the FATA were administered through a semi-autonomous arrangement through a combination of PAs (civil bureaucrats) and Maliks.[63] 

   [63]‘Structural Violence and Terrorism in the Federally Administered Tribal Areas of Pakistan’, Civil Wars, 12 March 2019, pp.2 and 4.

   c)In 2005, World Bank reported information about the Malik system and its privileges within the former FATA:[64]

   [64]‘Traditional Structures in Local Governance for Local Development: A Case Study of Pakhtun Residing in NWFP & FATA, Pakistan’, The World Bank, 01 January 2005, p.13.

   There are also Malik, and Lungi-holders (individuals entitled to stipend from the government), registered with the government (political administration) and are considered officially recognized leaders.  This privilege enables them to act as government contractor to become a member of Electoral College, Agency Council and a Jirga, constituted under the FCR [Frontier Crimes Regulation] 1901 by the Agency Administration.

   d)Maliks also have judicial power if picked by a PA who convenes a jirga (council of elders).  However appointments to jirgas by PA and Maliks ‘reflect the interests of FATA’s political elite rather than of impartial justice.’[65]

   [65]‘Traditional Structures in Local Governance for Local Development: A Case Study of Pakhtun Residing in NWFP & FATA, Pakistan’, The World Bank, 01 January 2005, p.13.

   e)A 2019 paper titled Structural Violence and Terrorism in the Federally Administered Tribal Areas of Pakistan reported some of the privileges given to Maliks in the tribal areas.  This included being gifted health and school facilities, some of which were turned into guest houses.[66]

   [66]‘Structural Violence and Terrorism in the Federally Administered Tribal Areas of Pakistan’, Civil Wars, 12 March 2019, p.11.

   f)There is corruption within the system without checks and balances.  The writers of the above mentioned 2019 report interviewed a journalist from the region who commented:[67]

   [67]‘Structural Violence and Terrorism in the Federally Administered Tribal Areas of Pakistan’, Civil Wars, 12 March 2019, p.7.

   There is no dearth of funds, but there is no check-and-balance mechanism to ensure judicious and transparent utilisation of the funds, as the lion’s share of the funds are consumed by the existing system of Monshi (secretary) and Maliks.

   g)A 2018 report by the Center for Research and Security Studies reported a contradictory view of the power and privileges of Maliks, which could be waning because:[68]

   [68]‘FATA Tribes: Finally out of Colonial Clutches? Past, Present and Future’, Center for Research and Security Studies, 01 June 2018, pp.9–10.

   With the passage of time, because of education and democratic norms in the periphery of the FATA regions, the authority of the central tribal chief (Malik, Nawab, Khan) diminished…

   The Malik does not enjoy any pay or privilege.  Even in the tribal council, no weight or value is attached to the Malik’s views or utterances.  His principal function is to ensure the implementation of the matters decided in the tribal meetings.  The task of field operations is conferred upon the field commanders, appointed by the Jirga.  The Khans and Maliks are, in fact, no more than the leaders who administer and manage their clans during peace time.  They possess influence but the power lies with the Jirga.

   h)Since 2018 the former Federally Administered Areas (FATA), which include Kurram Agency has been integrated with and merged into the province of Khyber Pakhtunkhwa.[69]  According to the Government of Pakistan’s old FATA website, accessed on 10 June 2020, the position of Political Agents has been dissolved and replaced.  It does not however, give any information on if the Maliks still retain their privileges within Khyber Pakhtunkhwa province: [70] 

   3   Local self-government which could not get roots in the tribal areas due to its peculiar status and nature of governance, will be introduced in the areas at par with rest of the province.  The Political authority will be devolved to the grass root level and issues of local level to be resolved by the local bodies representatives.

   4   The colonial legacy in the form of political administration under the unbridled powers of Political Agent is no longer there. The office is re- named as Deputy Commissioner and Assistant Commissioner. Similarly, the Century old Frontier Crimes Regulation (FCR) is no more in the field. The tribal people will have fundamental rights guaranteed by the Constitution and of which they were deprived till now. The introduction and presence of criminal and judicial system will ensure their fundamental rights like other citizens of rest of the Country.

Substantive applicant response

[69]‘Administrative System - Federally Administered Tribal Areas (FATA)’, Government of Pakistan, date not specified.

[70]‘Administrative System - Federally Administered Tribal Areas (FATA)’, Government of Pakistan, date not specified; the quoted section of the website appears to have been written post-2018 and the merger of FATA and Khyber Pakhtunkhwa.  A search on the official website of Khyber Pakhtunkhwa does not give any clarity on the position of Maliks in the province.

1. In his statement in response (dated 3 July 2020), the applicant did not engage with this aspect of the information provided to him by the Tribunal.  However, much of this information is consistent with a news article provided by the applicant’s representative by email dated 10 April 2019.[71]  Accordingly, it might be argued that the following aspects of credible country information relevant to the applicant’s claims for protection were not addressed at the first reasonable opportunity:

   [71]Dawn ‘New Maliks cast shadow on FATA reforms’ (13 June 2011) (Tribunal file, Folio 81).

2. The applicant is not the eldest son of his deceased grandfather, nor is he the eldest grandson.  The applicant claims to have inherited the designation ‘Malik’.  It is noted that the applicant’s evidence has consistently been that he has at least one older brother who was a successful business owner in his home region of Pakistan at the relevant time.  This brother was apparently kidnapped by the TTP in early 2013 and released after he assured his captors that the family had disowned the applicant.  The circumstances of this abduction were not accepted by either the delegate or the Tribunal at first instance on the basis that the applicant’s evidence was illogical (delegate at (13); First Tribunal at [69]), inconsistent and lacking in credibility (First Tribunal at [69]).

3. The applicant has provided no evidence of having acted in any official capacity to discharge any of the usual duties of a Malik since his nomination by MNA [Mr A], including but not limited to being a member of Electoral College, Agency Council or Jirga.

4. The applicant has provided no evidence of having been remunerated by the Federal, Provincial or District authorities in a manner consistent with accepted practice for a duly appointed Malik in Pakistan.

5. The applicant has not responded to country information from 2018 suggesting that the role, function and significance of Maliks in the former FATA has ceased since incorporation into the new province of Khyber Pakhtunkhwa, potentially rendering them an historical artefact.  However, the evidence presented to the Tribunal on 16 September 2020 by the applicant’s witness corresponding with [Mr A] satisfies me on balance that there is an ongoing role for clan or tribal Maliks in the new province of Khyber Pakhtunkhwa.

Subsequent evidence

1. At the final hearing with the applicant on 16 September 2020, the applicant acknowledged that, in strict lines of male succession, he was the eighth in line after his grandfather.  However, the applicant indicated that, as his own father had died prematurely, the applicant had been raised by his grandfather and they had enjoyed a special relationship.  This, together with the applicant’s commitment to higher education, meant that he had become his grandfather’s acknowledged successor to the role of Malik.

2. Prior to taking evidence on this question from the applicant’s preferred witness, MNA [Mr A], I asked the applicant how MNA [Mr A] knew the applicant and his grandfather.  The applicant stated that he claimed no special relationship with the witness beyond a longstanding friendship between the families.  The applicant’s only personal exchanges with the witness had been at the time of his grandfather’s memorial services and when the applicant had been nominated as Malik following the vacancy created by his grandfather’s passing.

3. Once connected, I asked the witness if he was the author of the relevant support letter.  The witness responded in the affirmative.  I asked the witness about the Malik system in Northern Pakistan.  The witness exhibited a detailed, nuanced and contemporary appreciation of the system of appointments both historically, since the unification of the FATA and KPK into the current province of Khyber Pakhtunkhwa, and as it is beginning to re-emerge.  The witness gave detailed evidence of the role and function of the Malik system in the region, both before independence and since that time. 

4. The witness was also familiar with the [identities of] Maliks and Tribal Elders killed by the TTP and other terrorist thugs.  The witness confirmed that he was personally aware that the applicant’s grandfather was [included in the group].  The witness confirmed that the two families had been close since the time of the witness’s grandfather.  The witness claimed to have been the relevant political agent for the area on behalf of the national government since 2008.  According to the witness, payments to Maliks varied, depending on their utility and effectiveness in the administration of the region.  The witness testified that there was a nominal sum of money waiting at the district administrative office on the account of the applicant in recognition of his appointment in line with this practice.

5. The witness stated, without prompting, that following the death of the applicant’s grandfather there was initially some uncertainty about which member of the family should assume the vacant ‘Malik’ designation.  According to the witness, a document emerged in the deceased Malik’s papers making it clear that it was that person’s intent that the applicant be appointed Malik following the passing of the deceased.  The witness stated that, while unusual, it was entirely appropriate in the circumstances for the applicant to be nominated and appointed as the next Malik to follow his grandfather.  On this basis he had no hesitation in nominating the applicant to the role to the local tribal leaders and his nomination was readily accepted by those community elders.

6. I asked the witness about the appointment of a Malik in absentia.  The witness stated that it was not unusual for members of his community to spend some time, even years away from the tribal homelands, but to maintain a cultural connection with the community.  The witness also stated that it was open to a nominee to decline the appointment, but this was not viewed positively from a cultural perspective.  The witness also indicated that it is not unheard of for there to be more than one Malik per family group, given the nature of society and community expectations.

7. Following this evidence, the hearing concluded, and the applicant was given further time to make written submissions.

8. While there can be no way that the Tribunal can be certain of the precise identity of the individual with whom this long distance telephone interview was held, I note that the call was placed to the contact number for MNA [Mr A] shown on the Pakistan National Assembly website.  I also note that the witness’ answers and conversational style was consistent with someone with a detailed understanding of regional political issues; the nature of the Malik system; the applicant’s grandfather; the letter claimed to have been authored by him; the applicant himself; and, the circumstances under which the applicant claims to have been appointed Malik following the death of his grandfather.  The evidence of the witness varied sufficiently from the narrative of the applicant to satisfy me that the witness was not relaying a legend or similar narrative artefact.  The substance of the witness’ evidence was sufficiently consistent with that of the applicant to be generally corroborative of the applicant’s evidence and claims.

9. Significantly, the witness provided evidence that does not appear to have been known by the applicant personally involving intra-familial deliberations about his Malik nomination by the witness.  This evidence answers one of the apparent anomalies in the applicant’s narratives relating to the departure from strict primogeniture in the transfer of the Malik designation from the grandfather to the applicant.  While not conclusive, this evidence is persuasive and does support the core claims which have been consistently asserted by the applicant.

1. Accordingly, I find on balance that, prior to his death, the applicant’s grandfather was a traditional Malik recognised or otherwise acting with the imprimatur of the Federal Pakistan government.  I further find that the applicant’s grandfather is [publicly recognised as one of the group of] tribal elders killed by TTP and other criminal thugs.

2. I also find on balance that the applicant was regularly nominated by MNA [Mr A] as the Malik within the applicant’s clan or tribal group to fill the vacancy created on the death of his grandfather.  This nomination occurred in 2012 when the applicant returned to say prayers at the grave of his grandfather and to visit family at a time when the applicant was travelling on a Student visa.  Some time following his return to Australia, the applicant was informed by MNA [Mr A] that his appointment as Malik had been confirmed.  I note that these findings of fact are materially different to those made by both the delegate in the first instance and the Tribunal as previously constituted.  On balance, I am satisfied that these findings are supported by evidence made available to the Tribunal by means of its further inquiries on remittal, which evidence was not before the two previous decisionmakers. 

Evidence of the ‘Malik’ designation being awarded in absentia

Country Information put to the applicant

1. I put the following country information summary to the applicant and invited him to respond:

a)No independent corroborating information can be found that the designation of Malik has been awarded in absentia.[72]  One piece of information was located, however, reporting that a Jirga pronounced a death sentence on a young couple in absentia for an inter-tribal marriage in 2009.  An attempt to apply the decision failed, although the government could not assure the couple’s safety.[73] 

Substantive applicant response

[72]Sources consulted include; internet search engines; the European Asylum Support Office (EASO) COI Portal; the European Country of Origin Information Network (ECOI); ReliefWeb; the Immigration and Refugee Board of Canada (IRB); and UNHCR Refworld.

[73]E.g.; ‘A young couple is in hiding after a tribal court sentenced them to death for their inter-tribal marriage’, Asian Human Rights Commission 25 February 2009.

1. In his statement in response (dated 3 July 2020), the applicant declared as follows:[74]

   This information may be correct in general, with due respect, my grandfather was assassinated in 2010.  I visited in 2012 and was officially endorsed by MNA [Mr A] and other tribal elders and appointed as a Malik.  I didn't apply for a protection visa from June 2010- Aug 2013, until I returned to Australia and was threatened in a letter when they found out that I have already left for Australia.

   Also, I was born and raised in a traditional Malik family which leaves me with no choice other than accepting the fact that I am and have to be one by inheritance and keep the tradition and carry on the legacy of my slain grandfather.  Furthermore, the reason that I am a Malik because I am more educated than my other brothers which makes me a lot more ideal and suitable candidate for this position.

   In summary I note that I was not appointed as Malik in absentia.  The decision was taken to appoint me as Malik when I was in to my locality where I was officially endorsed by Member of National Assembly [Mr A] and other tribal leaders as Malik.

   [74]At (3).

2. The available evidence about the process by which the applicant claims to have been appointed a Malik lacks the sort of clarity one would normally expect regarding such a significant fact of a person’s life.  In the foregoing statement, the applicant stated that he:

   … visited in 2012 and was officially endorsed by MNA [Mr A] and other tribal elders and appointed as a Malik. 

   And:

   I was born and raised in a traditional Malik family which leaves me with no choice other than accepting the fact that I am and have to be one by inheritance and keep the tradition and carry on the legacy of my slain grandfather.  Furthermore, the reason that I am a Malik because I am more educated than my other brothers which makes me a lot more ideal and suitable candidate for this position.

3. In his initial application for protection contained in the Departmental file and dated 21 August 2013, the applicant took care to stress that his grandfather had been a traditional Malik.[75]  Given this particularity, it is significant that the applicant made no reference to holding a Malik designation himself anywhere in that application.  During the applicant’s PV interview (at 16:52) the applicant suggested to the delegate that his grandfather’s name appeared on a published list of assassinated Maliks published by [a] website at the web address: ‘[URL redacted]’.  Specifically, referring to the document he handed at the PV interview to the delegate and which appears in the Departmental File at Folio 112, the following exchange is recorded on the audio record of the PV Interview:[76]

   Applicant: I have a proof of, ah, there are like a list of all these Maliks, who was killed [by the Taliban] and it , ah, hasn’t been updated, but I have ahm, this ahm, this proof, ah, with this link, the second one [as per above].

   Delegate:  And can I keep this [list at Folio 112]?

   Applicant:  Yeah, you can have … ah the second one.

   Delegate: And what is this?

   Applicant:  If you follow this one, ah, just gimme a second, … Yeah, ahm, On the second link that I have provided [on the list at Folio 112], it shows all these Maliks that were killed.  And these Maliks were killed because they were ah hearing the Government.  So we were employed by the Government that because he was a representative of the Government, he was killed by the Taliban.

   Delegate:  Ok, but you say he was killed by the Taliban .. ah … the Taliban was targeting Maliks and you say that the Taliban claimed responsibility specifically for killing your grandfather?

   Applicant: Yes.  And I received a [Taliban threat] letter when I was in Perth and the [local Taliban leader] claimed responsibility and he mentioned my grandfather and like … ah … we have like killed him.

   [75]At Folio 56.

   [76]At 16:05.

4. On inspection, I find that the web address relied upon by the applicant above in the first instance contains a list of ‘Terrorist and Extremist Groups of Pakistan’, with links to dossier summaries for some of these groups.  It does not, as the applicant suggested, contain a list of assassinated former tribal leaders.  Examination of available data-sets on the web address ‘[URL]’ reveals some information about particular assassinations, however, there is no mention of the applicant’s grandfather or details equivalent to the details provided relating to the death of the applicant’s grandfather.

5. The applicant’s representative did provide two local newspaper reports in support of his claims relating to the death of his grandfather in 2010.  According to the attached translations, these local reports from [Publication 1] (dated [Date 1] July and [Date 2] July 2010) carry the headings ‘[Heading 1]’ and ‘[Heading 2]’ respectively.[77]  It is noted that, while care is taken in these reports to describe the deceased as ‘Renowned tribal leader’, ‘Head of the family’ and the significant devotional designation ‘Haji’, he is not referred to in either report as ‘Malik’.

   [77]Tribunal file, Folios 82–83.

6. Reference to the translated TTP threat letter referred to by the applicant discloses the following text:

   We, the Taliban movement of [Town 1], Kurram Agency, warn you ([the applicant] of [Town 1]) most strictly, and we have also warned you in the past, that you must immediately stop the propaganda you are running against us.  But you did not stop.  It was in this connection that we sent your grandfather to hell.  Even then you did not stop.  We have also learned that you have abandoned the Islamic faith and become an apostate after going to Australia, and that you are misleading other Muslims there; that you use foul language against us and against Islam.  We have complete evidence for this.  We pledge that if you come to Pakistan, we will not spare your life, no matter where in Pakistan you may be.

7. This threat letter makes no mention of the applicant’s purported status as a ‘Malik’, likewise there is no mention of his grandfather holding such a status either.  This information source can at best be described as equivocal from a probative perspective regarding both aspects of the applicant’s core Malik-related claims.  Nevertheless, the threat letter does link the violent death of the applicant’s grandfather to the animus expressed in the threat letter against the applicant.

8. The apparent omission of a contemporaneous reference to the applicant’s grandfather having held the designation of Malik at the time or prior to his death in 2010 is a relevant deliberative issue.  As is the lack of reference to the applicant’s grandfather in the online data-sets referred to as probative by the applicant when interviewed by the delegate at the first instance (and subsequently on further inquiry by the Tribunal).  It is also noted that the applicant provided no evidence of his name having been inscribed on the official memorial to former FATA Maliks at the former secretariat of the Federally Administered Tribal Areas.[78]

   [78] (accessed 17 April 2020).

100.On the other hand, the Tribunal notes that, from the time of the applicant’s protection visa interview, the applicant has consistently asserted that his grandfather was a Malik.  This designation was either a traditional inherited status preceding Pakistan independence, or a status conferred on him by the former British administration.  In support of this claim, the applicant provided to the Tribunal as previously constituted an undated letter under the name of a Member of the National Assembly of Pakistan, [Mr A], Member for the [specified constituency].  As noted variously above, it is this letter which formed the basis of the orders of Driver J under which this application was remitted to the Tribunal as presently constituted for determination according to law.

101.During the telephone call referred to above, with the person identifying themselves as [Mr A], I asked the witness about the appointment of a Malik in absentia.  The witness stated that it was not unusual for members of his community to spend some time, even years away from the tribal homelands, but to maintain a cultural connection with the community.  The witness also stated that it was open to a nominee to decline the appointment, but this was not viewed positively from a cultural perspective.  The witness also indicated that it is not unheard of for there to be more than one Malik per family group, given the nature of society and community expectations.

102.On the basis of the evidence surveyed above, I find on balance that the applicant’s appointment as a Malik, while having been perfected in the applicant’s absence from Pakistan, was regularly commenced in person while he was in that country in 2012.  Accordingly, the question of appointment in absentia does not, strictly speaking, arise on these facts.

Are persons selectively targeted in Pakistan by agents of harm on the basis of the designation of ‘Malik’ alone?

Country Information put to the applicant

103.I put the following country information summary to the applicant and invited him to respond:

a)Information has been located indicating that Maliks and tribal leaders have been targeted by agents of harm on the basis of their position.

b)On 11 May 2017, Brigadier (Retd.) Mehmood Shah, former FATA Security Secretary stated, ‘that the Taliban began targeting tribal elders in 2005 after the elders voiced their support for the Government, Army and intelligence agencies.’[79]

[79]‘Pakistan: Tribal Elders And The Curse Of War – Analysis’, Tushar Ranjan Mohanty, Eurasia Review, 07 August 2018.

c)In 2009, a Center for Strategic and International Studies report noted 600 Maliks in the FATA were assassinated by the militants between 2007 and 2009.[80]

[80]‘FATA - A Most Dangerous Place’, Shuja Nawaz, Center for Strategic and International Studies, 01 January 2009, p.15.

d)A 7 December 2017 The Nation article, on the subject on collective punishment, noted how tribal leaders were caught in the middle of Taliban assassination attempts and punishment from Pakistani security forces in response to attacks by the Taliban:[81]

[81]‘In Pakistan’s Tribal Areas, Collective Punishment Is the Law of the Land’, Umar Farooq, The Nation, 06 December 2017.

Attacks on Pakistani security forces, usually from the TTP [Tehreek-e-Taliban Pakistan], earned locals collective punishment.  Tens of thousands of homes were demolished, entire tribes were blockaded or exiled for years, and political agents arrested thousands of tribesmen in an attempt to punish them. Tribal elders, who Pakistan claimed were responsible, found themselves caught between Taliban assassins and government officials.  Suicide bombers struck jirgas, as did US drone strikes.  In all, at least 1,100 tribal elders were killed in the war, while thousands of others have left the tribal areas out of fear.

e)The Nation article highlights the example of Malik Nuruddin. The Malik was assassinated by the Taliban three years after he was first threatened by the group for his perceived collaboration with the Pakistani military.[82] 

[82]‘In Pakistan’s Tribal Areas, Collective Punishment Is the Law of the Land’, Umar Farooq, The Nation, 06 December 2017.

f)A Eurasia Review article of 7 August 2018 reported:[83]

[83]‘Pakistan: Tribal Elders And The Curse Of War – Analysis’, Tushar Ranjan Mohanty, Eurasia Review, 07 August 2018.

…since the beginning of the US-led operation in Afghanistan in 2001 and the consequent influx of Afghan Taliban into Pakistan's tribal areas, primarily FATA, tribal elders became frequent victims of a sustained campaign of annihilation that has virtually destroyed the structure of traditional tribal power in these regions.  In the compound of the FATA Secretariat, there stands a lonely cenotaph with, “Elders/Maliks of Federally Administered Tribal Areas Martyred in Militancy” inscribed on it.  It bears as many as 111 names.  Although the font used for the writing has remained consistent, additional slabs of marble have been added to accommodate more names in this expanding list.

104.In his statement in response (dated 3 July 2020), the applicant declared as follows:[84]

[84]At (2).

Once they [Taliban] form a view and identify a person as their enemy they will wait for a suitable time to target and kill them.  It happened in the past and if there is evidence to suggest that it happened in the past, it is reasonable to conclude that it will happen in foreseeable future as well.  For example, the Taliban waited to take revenge against ex-Pakistani Prime Minister and the Taliban waited for a suitable period to target my grandfather.  Please see further evidence of how Taliban had waited to revenge against people whom they consider as traitors or enemies.

·     My Grandfather was relocated from two (2) places in 2007 i.e. [Town 1] and [Town 2] (Kurram District), a.nd finally resided in Peshawar.  But it took three (3) years for the Taliban to find a suitable time and location to assassinate him.  He was assassinated three (3) years later in June 2010, in Peshawar though Tribal areas were safe havens for the Taliban.

·     Dr Riaz Hussain was president of the PPP branch in Kurram, In Feb 2008, 63 people were killed and 200 injured when a bomb went off at his election office in NA-37 in Parachinar. Taliban took the responsibilities.  It took 5 years for Taliban to assassinate Dr Riaz Hussian (2013) as he left his clinic in the Dabgari area of Peshawar and police suggested it was a targeted.

Another targeted attack was Allama Nawaz lrfani.  He was gunned down in Islamabad.  He was also a prime target of Taliban.  The Taliban killed him outside his house in Islamabad in 2014 when they found the suitable time and location.  There are other examples as well but I would mention few of them just to show as how Taliban operate and take down their targets

105.This evidence from the applicant appears to support the proposition put to him that a Malik designation alone would not be enough to result in a qualifying real chance of serious harm or real risk of significant harm for the purposes of the refugee and complementary assessments at s.36(2) of the Act.  Some regard must be had to the motivation and intentionality of the identified agents of harm from whom the animus of harm emanates.  Country information, together with the applicant’s own evidence suggests that particular profiles of interest to such agents of harm are clearly one of the motivating factors that must be accounted for in any decision-making calculus in such assessments.

106.I note the applicant did not provide any independent evidence to contradict the foregoing country information regarding the targeting of individuals on the basis of being a Malik alone.  However, taking the foregoing country information and evidence together with that of the telephone witness identified above as [Mr A], it is clear that not all individuals with the Malik designation are equally distinguished.  This is reflected somewhat crudely in the differential remuneration methodology that applies for Maliks.  To the extent that the designation Malik involves the holder taking on a particular leadership profile (particularly one of opposition to the activities and policies of the TTP or similar criminal thugs), it is likely to result in the individual facing a real chance of serious harm or a real risk of significant harm for the purposes of the Act.

107.The applicant has consistently asserted that he is and has been a conscientious opponent of the TTP, including advocating opposition to its activities and policies in his home region and more broadly.  A passage of the applicant’s evidence in this respect is reproduced here from his Statutory Declaration of 20 December 2019.  This passage also provides insight into the core aspects of the applicant’s claims for protection:

16. I successfully completed [Qualification 1] in [Discipline 1].  It is also to be noted that, I did my project in “Deradicalization Program of Islamic State Terrorists and their supporters’ which was valued by my supervisor.

17.During the seminars at [University 1], I shared my “Deradicalization Program” with a number of national security agencies including Australian Federal Police, Home Affairs Department and Attorney General's Office.  The whole deradicalization program was appreciated by the concerned authorities but the only reason they cannot offer me a job is, I am not an Australian Citizen.

18.I am very optimistic that the project that I have been working on would bring a significant change in the fight against terrorism.  The Australian counter-terrorism agencies are working hard to tackle the issues of terrorism.  But hence there is no such “deradicalization program” in Australia to deradicalize the Islamic State Terrorists and their supporters who are being radicalized online, I can and I will contribute all my knowledge and learning to keep Australians safe through the Deradicalization Program.  It is also important to note that, majority of the Islamic terrorists and their supporters are from Sydney and Melbourne and I am willing to offer my services at any forum to get rid of this terrorism disease.

19.Since people looked at me as his natural heir, my grandfather's close friend and our local Member of National Assembly (MNA) [Mr A] had recommended my name as a Malik to the local authorities. (see the profile of [Mr A] <link>). The following is his MNA profile link; <link>)  After his recommendation, he informed me about the recommendation and said it was a great honour for me and told me that I should take the steps to formerly accept it and said I should visit Pakistan for that.  He also said I should take a lead to complete my grandfather's vision and his work towards people.

20.I returned to Pakistan [in] November 2012.  After I arrived in Pakistan, I decided to visit [Town 2] to pay respect to my Grandfather's graveyard.  I stayed in [Town 2] for three days.  During that time, people used to come and see to pay respect to me because they knew I was recommended for the position of Malik.  During those meetings, I told them that we need to keep our fight against Taliban and spoke against their atrocities.  It was natural for a person who lost his grandfather due to Taliban to speak against them.  People who visited me to pay their respect, cautioned me to be careful.  I later learned that someone who had affiliation with Taliban secretly recorded my conversation and discussion and passed to the Taliban.

21.On the 3rd day of my stay in [Town 2], unidentified men knocked on the door of my uncles' house where I was staying.  My cousin opened the door and said that some people were waiting to see me at the door.  I thought it could be our tribe people to see me.  There were two people there and another person was in the car.  The attackers who covered their face with scarfs attacked me.

22.As a result of the attack, I sustained knife cut on his right shoulder.  I was hit by a piece of metal like an iron bar Just below the belly button.  The attackers used knife and Iron rod.  I fell on the ground and started screaming.  In the meantime, my uncles and neighbours started gathering the place after hearing me screaming and the attackers left the place.  I was given first aid by a local doctor.

23.Next day morning, I decided to leave [Town 2] and went to Peshawar and from Peshawar due to security reason, I moved to Islamabad and kept low profile until I departed Pakistan [in] December 2012.

24.After coming to Australia, I faced mental health issues and my family told me to take care of myself.  I thought it could be a random violence and did not take it seriously.  However, on 20th December 2012, my family received a threatening letter by the Taliban movement and their leader at that time [Mr B], Amir of Taliban movement signed the letter.  The letter accused me for abandoning Islam and accused further that I am an atheist.  They threatened me to stop propaganda against them.  Though, I never abandoned Islam and not the atheist but it is the perception of my enemies which caused me worry.  It should be noted that my family only informed me about the letter in February 2013 because they did not want me to suffer further depression.

108.Following the final hearing with the applicant, he was given additional time to make submissions on the question of his anti-TTP and anti-radical Islamic militant convictions and activities.  On 15 October 2020, the Tribunal received an emailed submission comprising the following documents:

a)Applicant’s statement with attachments.

b)Copy of [Qualification 1] in [Discipline 1].

c)Copy of applicant’s University ID.

d)Email correspondence the applicant had with ex-Border Force Chief.

e)Photos of the applicant’s graduation ceremony.

f)Applicant’s project report marked with copy of letter of Reference from the Course Coordinator [Dr C].

109.The submission of 15 October 2020 and the attached supporting documents does not go as far as the applicant has suggested, where he characterises his past academic work as having:

shared my “Deradicalization Program” with a number of national security agencies including Australian Federal Police, Home Affairs Department and Attorney General’s Office.  The whole deradicalization program was appreciated by the concerned authorities

110.I note that the only supporting evidence of this provided in the course of this review is in terms of a brief (and inconclusive) May 2020 email exchange with a former head of Australian Border Force.  I am, however, mindful of the capacity for applicants for protection to embellish their claims or evidence and the Tribunal’s obligation to weight such evidence fairly.  My assessment is that the applicant has amply demonstrated that he is a sincere ideological opponent of religious extremism, particularly where this is ‘weaponised’ by self-serving and anarchistic armed thugs.  He has pursued this intellectual commitment to a Masters’ level of academic study and may well pursue it further.  I also note that the applicant has also demonstrated a personal commitment to his traditional community in Northern Pakistan and takes the expectations of that community as binding upon him in cultural terms.

111.The applicant’s consistent narrative regarding his ideological commitments and tribal or clan profile is logical, supported by corroborative evidence and generally credible.  In finding this to be the case, I further find that, if returned to Pakistan, the applicant would pursue a leadership role in his traditional community advocating opposition to the cultural and religious chauvinism of the TTP and similar extremist thugs in his traditional home in Khyber Pakhtunkhwa, Pakistan.  This being the case, the applicant’s claims must be viewed as essentially political in nature for the purposes of s.91R(1)(a) of the Act and the harm feared by the applicant is systematic and discriminatory for the purposes of s.91R(1)(c) of the Act.

112.I further find that the applicant would have a particular profile if returned to Pakistan now, and in the reasonably foreseeable future due to the combination of his official designation as a clan or tribal Malik with the imprimatur of the Federal Pakistan Government and his sincerely held belief that radical religious extremist thugs should be challenged and their ideologies deconstructed.  Accordingly, I find that there is a real chance that the applicant faces serious harm in the relevant sense if he was returned to Pakistan now or in the reasonably foreseeable future.

113.Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm.  Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution.[85]  Recent, well publicised public statements of the Prime Minister of Pakistan[86] satisfy me that effective state protection is not accessible and durable to applicants with the particular political and cultural profile of the applicant. 

[85]MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23].

[86]BBC News, Imran Khan criticised after calling Osama Bin Laden a ‘martyr’, 26 June 2020 ( (accessed 20 October 2020))

114.Having accepted that the applicant has a well-founded fear of persecution in Khyber Pakhtunkhwa, I must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.  The attitude of the State, as indicated above, is part of this calculus.  The reasonableness of both accessing state protection or applicant relocation on return are separate, but related components that must be appropriately weighed.

115.In SZATV v MIAC[87] the High Court endorsed the proposition that a person will not be excluded from refugee status merely because they could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect them to do so.  The Court further held that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.[88]  As Kirby J stated in that case, the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.[89]  

[87](2007) 233 CLR 18.

[88]SZATV v MIAC (2007) 233 CLR 18 at [24].

[89]Ibid at [97].

116.In the context of what is reasonable, I note that a well-founded fear of being persecuted cannot properly be regarded as being localised if relocating carries with it the need to avoid persecution by ‘living discreetly’.  In SZFDV v MIAC, the High Court emphasised that:[90]

[90]SZFDV v MIAC (2007) 233 CLR 51 at [33] per Kirby J referring to Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40] per McHugh and Kirby JJ, and at [80] per Gummow and Hayne JJ.

… it would not be a “reasonable” adaptation of the behaviour of an applicant … to expect the applicant to return to the country of nationality and to abdicate, or repudiate, a fundamental right of the kind included in the list of Refugees Convention-related grounds of “persecution”.

117.As McHugh and Kirby JJ explained in Appellant S395/2002 v MIMA,[91] the Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps, reasonable or otherwise, to avoid offending the wishes of the persecutors.[92]

[91](2007) 233 CLR 51.

[92]Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], cited with approval in SZATVv MIAC (2007) 233 CLR 18 at [28].

118.In the context of relocation, therefore, I accept that it cannot be a reasonable adjustment, contemplated by the Convention, that a person should be required to relocate internally by sacrificing one of the fundamental attributes of human existence which the specified grounds in the Convention are intended to protect and uphold.[93]

[93]SZATV v MIAC (2007) 233 CLR 18 at [102], per Kirby J. The UNHCR, Internal Flight Guidelines, make a similar point at [19]: “Claimants are not expected or required to suppress their political or religious views or other protected characteristics to avoid persecution in the internal flight or relocation area.”

119.While I am satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan, I note that the factors that may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[94]  In this case, the applicant would be required to both live discreetly and disown his personal cultural and political commitments in order to reduce the chance of harm to himself from the agents of harm that he has identified below a real chance.  Accordingly, I find that requiring this applicant to either access state protection or relocate within Pakistan on return would not be reasonable in all the circumstances of this matter.

[94]Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.

Summary

Assessment of claims for refugee protection.

120.Having regard to the foregoing analysis, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his current and future, actual or imputed anti-radical/anti-TTP political opinion as a person with the status of traditional clan or tribal Malik. Based on the reasons and findings above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

Assessment of claims for complementary protection.

121.Having found that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention, the Tribunal has not proceeded to consider the applicability of the complementary protection criterion at s.36(2)(aa) of the Act. However, the Tribunal does note that the threshold for the real risk element in the complementary protection criterion at s.36(2)(aa) is the same as that for the real chance test in the refugee criterion at s.36(2)(a) of the Act.[95]  The Tribunal further notes that the necessary and foreseeable consequence element at s.36(2)(aa)of the Act attaches to the risk of significant harm rather than the actual occurrence of significant harm.[96]

[95]MIAC V SZQRB (2013) 210 FCR 505.

[96]SZSKC v MIBP [2014] FCCA 938 (Judge Lloyde-Jones, 16 May 2014) at [71]–[73] and [84].

CONCLUSION

122.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

123.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

Dr Colin Huntly
Member

^[65]‘Pakistan: Countering Militancy in FATA’, International Crisis Group, 01 October 2009, p.15.