1834041 (Refugee)

[2019] AATA 6060

1834041 (Refugee) [2019] AATA 6060 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834041

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:16 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 16 July 2019 at 3:00pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – attempted recruitment by Pakistani Taliban – attacks on applicant and threats against him and his family – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

CASE

MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of Pakistan, Mr [A] being the main applicant and his wife, Ms [B], being a “Part D” or dependent applicant, making no claims of her own and relying on the outcome of Mr [A]’s protection visa application.

3. Mr [A] was born in [year]. He resided all his life in the city of Mansehra, Khyber Pakhtunkhwa (KPK) province, some three to four hours by road from Islamabad. He first arrived in Australia [in] March 2008 at [age] on a student visa. Ms [B] was born in [Country 1] to Pakistani parents in [year] and entered Australia on a Pakistani passport.

4. Mr [A] departed Australia for Pakistan [in] January 2012, was issued a new passport and stayed there for a month. He and Ms [B] married in Pakistan in February 2012. He re-entered Australia two months later [in] March 2012. He departed Australia for Pakistan again [in] September 2012 and stayed there a month, re-entering Australia [in] October 2012, this time with Ms [B]. Both applicants travelled to Pakistan [in] June 2013 and re-entered Australia [later in] June 2013.

5. Throughout these years, Mr [A] applied for and was granted a succession of student visas, the last of them being valid to 14 June 2014.

6. The applicants lodged their protection visa application on 9 October 2013. The Minister’s delegate interviewed Mr [A] on 15 April 2014. The delegate refused to grant the visas on 3 July 2014. The applicants then sought review by the former Refugee Review Tribunal, which merged into the AAT as of 1 July 2015.

7. The Tribunal, differently constituted, affirmed the delegate’s decision on 18 March 2016.

8. Mr [A] sought judicial review of the previously-constituted Tribunal’s decision and, [in] October 2017, the Federal Circuit Court remitted the matter to the Tribunal to be re-determined according to law. The reasons for remittal involved a failure on the part of the previously-constituted Tribunal to have regard to what may have been a significant piece of evidence, namely a [March] 2012 note from a hospital in Mansehra, Pakistan, relating to 1.5 inch cut to Mr [A]’s head. (Another outpatients department note on file is dated [June] 2013, its contents otherwise illegible.) The judge found that the error was similar to one found in the matter of MIAC v SZRKT [2013] FCA 317.[1]

   [1] MIAC v SZRKT [2013] FCA 317, Federal Court of Australia, Robertson J, NSD 1720 of 2012, 12 April 2013

9. The remitted matter was allocated to me, the presently-constituted Tribunal, on 11 March 2019.

10. The applicants appeared before me in Melbourne on 30 May 2019 and via video-conference link between Melbourne and Sydney on 7 and 26 June 2019. They were accompanied by their advisor, a registered migration agent. The Tribunal hearings were conducted with the assistance of an interpreters in the Urdu-English medium.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

11. The main issue in this case is whether, on accepted facts, Mr [A] and, as his dependent, Ms [B], are entitled to protection in Australia as refugees, or, if not, on complementary protection grounds

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

    Claims to the Department

13. Mr [A] claimed to the Immigration Department that he lived at the same address in Mansehra from birth until March 2008 when he came to Australia. He claimed he was last educated at a named state school where he attended from April 2005 to June 2007. He claimed he was never employed in Pakistan.

14. In a statutory declaration dated 2 October 2013, Mr [A] said he also attended a madrassa, or Islamic religious school, completing his religious education in 2006. He did not mention or name this madrassa in his protection visa application form. Mr [A] claimed that on the day of his graduation ceremony at the madrassa, some bearded men (he was apparently referring to members of the Pakistani Taliban, or TTP) took him aside and tried to brainwash him, there and then, into joining jihad, or Holy War. Mr [A] said the bearded men told him to accept their offer or face a “brutal death”. This was evidently a very grave threat.

15. Mr [A] claimed he questioned the TTP visitors about whether they sought peace or war, causing them to be angry with him on that occasion. He said the TTP members then took him to “their leaders” who preached again about jihad. He said the TTP then started sending him letters asking him to join the TTP. He claimed he ignored the letters and applied to come to Australia.

16. Mr [A] claimed that his first sojourn in Australia gave him such confidence that when he returned to Pakistan in 2012 for his marriage he openly challenged those Islamists who he encountered there. He said that on one occasion during this home visit “they” held him at gunpoint and hit him on the head. He said he did not remember anything after that until he awoke in hospital with his wife beside him.

17. This episode evidently corresponds with the doctor’s note of [date] March 2012, the one that was the subject of the judicial review, except that in that particular document, the doctor reported that Mr [A] arrived at the hospital “stable and well oriented with time and space”, which essentially means that he was not unconscious as claimed in the statutory declaration. On the face of it, Mr [A]’s evidence about this episode appears inconsistent.

18. Mr [A] said that after spending several months back in Australia he returned again to Pakistan after his wife’s Australian visa was granted. He said that nobody in Pakistan knew he was there except for his family, who did not allow him to go out anywhere. He said he stayed in a “place unknown to anybody else” until returning to Australia.

19. Mr [A] said he went back to Pakistan in June 2013 to see his mother who was hospitalised. He said he was confident to go there because friends and family had told him the national government had changed and because the individuals who had been threatening him had not been seen for a while. He said he was nevertheless spotted in the market by some extremists who led him blindfolded and at gunpoint to their leader who tried again to persuade him to join the jihad. On this occasion, he claimed, he promised he would join the jihad and asked for a few days’ grace, which was granted under threat of death if he did not then join the cause. He said they then injured him again, the next thing he knew being that he woke up again in hospital. This episode appears to correspond with the second purported hospital note, the one dated [date] June 2013. Mr [A] claimed he later returned home, then made a police report and also placed a personal notice in a local newspaper saying that his life was in danger. He claimed he then relocated to Islamabad and changed his flight, travelling to Australia earlier than originally planned.

20. Mr [A] claimed he will be killed by anyone associated with any fundamentalist Islamist group in the event of his next return to Pakistan. He claimed that his family is at risk of being killed too, since the threat against him involved joining the jihad or having his family wiped out.

21. In support of his claims, Mr [A] submitted a photocopy of a handwritten note that is purported to have been lodged with police; it has a “Police Station City [-] Mansehra” stamp in one corner and is dated [date] June 2013, i.e., the day before the [date] June 2013 hospital report. This purported statement to police refers to a group that has been teasing Mr [A] for five to six years, dropping pamphlets at his house and demanding that he join them under threat of murder. This does not appear to be the report that Mr [A] purportedly made to the police after the kidnapping that led to the injury that caused him to wake up again in hospital on [date] June 2013. This report does not appear consistent with the sequence of events Mr [A] described in his statutory declaration, in which Mr [A] made the police report after he returned home from hospital.

22. Mr [A] submitted photocopies (with translations) of two statements written on notarial paper, one from his father and one from his brother. Both statements are dated [date] June 2013 and both assert that Mr [A] is a “thorough gentleman, a respectable and distinct citizen” and also a “Hafiz of Quran and … a religious person”. Both statements say that the TTP is has been pressing Mr [A] to join them and both statements say that the family wishes to send Mr [A] to Australia to save his life. Mr [A]’s father asserts that the TTP issued him a declaration threatening to kill him and his whole family if Mr [A] did not join them.

23. A 10 June 2013 statement from Maulana [Mr C], an imam at [Mosque 1] in Mansehra claims that he educated Mr [A] in the Koran. This statement asks the reader to help provide Mr [A] with a better life. It is apparently dated before the marketplace kidnapping that purportedly shattered Mr [A]’s hope that his old foes were no longer around in Mansehra. The content of this document seems odd as its wording appears to be specifically a request for Mr [A] to be given protection, although he had not yet been kidnapped, had not yet fled back to Australia and had not yet lodged a protection visa application.

24. Mr [A] provided the Department with another letter, this one dated 11 June 2013. It is not addressed to anyone in particular but it says that Mr [A] “is a noble, respectable and peaceful citizen” who “has faced a lot of difficulties many times from some unidentified persons”. The letter says that Mr [A] received some letters threatening to kill him and his family. Again, this statement was obtained by Mr [A] before the alleged kidnapping that  that purportedly shattered Mr [A]’s hope about his old foes no longer being around. It seemed to me somewhat incongruous that Mr [A] sought or acquired that kind letter at that time before his peace in Pakistan was purportedly violently interrupted.

25. Mr [A] provided to the Department translated photocopies of six letters handwritten on purported TTP letterhead, all with Gregorian dates. The first one, dated [date] December 2007, congratulates Mr [A] on having completed his religious education (which he claimed in his own statutory declaration to have completed in 2006) and invites him to join the TTP by dropping them an acceptance letter at some time. From its content, it is hard to see how this letter sits with Mr [A]’s two written assertions about his encounter with the TTP visitors to the madrassa having occurred in 2006.

26. The second letter is dated [date] February 2008 is a polite though arguably terse reminder to Mr [A] to join the TTP; it provides no specific information to him on how to do so.

27. The third letter is dated [date] April 2008 is addressed to Mr [A]’s father and expresses the hope that he is “fine”, before rebuking him for sending Mr [A] to a foreign country and asking him to send advice to the TTP in writing as soon as Mr [A] returns to Pakistan; it does not tell him where to send his written acceptance. The fourth letter, also addressed to Mr [A]’s father, is dated [date] November 2010 and complains of having waited “approximately 3 years” for a response to the letter of [date] April 2008, seemingly illogically, since that earlier letter only required a response in the event of Mr [A] having returned to Pakistan which, to date, he had not yet done. This letter says the TTP needs men urgently and that if Mr [A] is not delivered to them, they will kill him and his whole family.

28. The fifth letter, dated [date] March 2012, is addressed to Mr [A] directly, expresses “great pleasure” at his having returned to Pakistan and warns him not to make the TTP “worry”, instructing him that this is his “last chance” to join lest he and all his family be killed, before leaving off with a request for a positive response from him. According to Mr [A]’s 2 October 2013 statutory declaration, he had meanwhile been confidently speaking out against the Taliban during this visit to Mansehra, inspired by his experience of freedom in Australia, and then the Taliban cornered him at gunpoint within four days of this letter, knocked him unconscious and somehow still did not manage to take him away with them.

29. The sixth TTP letter, dated [date] June 2013, tells Mr [A] that a “secret source” has informed the TTP that he has returned to Pakistan. The letter then says “you were slightly injured once before [so] that you [would] come along with us but you travelled again.” The letter concludes with a threat to take Mr [A] at any time.

30. Mr [A] submitted a photocopy of a First Information Report to police (FIR) from a person called [name deleted]. This FIR is dated [date] February 2012 and purports to have been made at a police station in Abbottabad, the author reporting that his wife died in an explosion in a market.

31. Mr [A] claimed in his 2 October 2013 statutory declaration that his father had also been injured by the TTP.

    Evidence to the previously-constituted Tribunal

32. Mr [A] submitted photocopies of two purported FIRs relating to purported visits by his father to a police station in Mansehra. Whilst, as noted above, Mr [A] claimed in his 2 October 2013 statutory declaration that his father had also been injured by the TTP, the injuries claimed in these two FIRs do not corroborate that particular claim, as both of these reports are dated after the date of the statutory declaration.

33. The first of these FIRs is dated [date] December 2013 and states that Mr [A]’s father came to the police station claiming to have just been injured by some TTP members who demanded that he call “ my son [Mr A] back home” to Pakistan so that they could induct him into the TTP or else face being killed along with all of his family. The PIR says that Mr [A]’s father told the police that if anything happens to him after this incident he will inform them.

34. The second FIR is dated [date] April 2014 and reports that Mr [A]’s father came again to the police station after being injured again by the Taliban. This second FIR repeats the same facts as the first, and in the same order, and proceeds to the same threat to wipe out Mr [A]’s whole family. There appears to be a reference to exactly the same demand from the Taliban: to call my son [Mr A] back home”. It even ends in the same way, with the reporting officer stating that Mr [A]’s father undertakes to inform the police of anything else happens to him.

35. Both of these FIRs are handwritten on blank paper and bear a purported police station stamp and handwritten initial in one corner, similar in material, composition and layout to Mr [A]’s own purported FIR. Nothing about either document suggests that any kind of standard form has been used. Meanwhile, according to DFAT[2],

    5.73  FIRs [first information reports] use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.

    [2] DFAT Country Information Report: Pakistan, 20 February 2019

    Evidence before the presently-constituted Tribunal 

36. At the Tribunal hearing on 30 May 2019, I asked Mr [A] for more details about all of his family members. He told me that he has [number] brothers and [number] sisters and that his parents are both still alive. He said that none of them remain in Pakistan. He said his eldest brother [has] been living a long time [overseas] on a temporary working visa; he said the next brother [has] lived and worked for around five years in [Country 2] where he is also married to a [Country 2 woman]; he identified himself as the third son; he said the fourth son [has] resided in [overseas] for around eight years; he said that the fifth brother [has] been living in [Country 3] for over ten years and has permanent residence there; and he said that the sixth brother, [Mr D], has been in Australia for four years.

37. Mr [A] said his two sisters also live [abroad]. He said his parents both resided at the family home in Mansehra, where he himself lived from early infancy until coming to Australia and during return visits to Pakistan, until May 2018 when they moved to [Country 3] under a sponsorship from [one brother].

38. Mr [A] told me that, when he was last in Pakistan in 2013, [a few of his brothers] and both his parents were still living there at the family home in Mansehra.

39. I asked Mr [A] for some more information about his brother in Australia, [Mr D]. He mentioned that [Mr D] came here on a student visa which was cancelled in June 2016 due to failure to meet minimum attendance requirements. He said [Mr D] lodged a protection visa application that was refused by a delegate of the Minister. I note that [Mr D] lodged an application for review by the Tribunal, which found it did not have jurisdiction in that particular case. Mr [A] said [Mr D] did not seek judicial review of the Tribunal’s decision, saying [Mr D] was permitted to work by the bridging visa he received upon applying for review of his student visa cancellation.

40. Whilst discussing [Mr D], Mr [A] grew faint and a brief adjournment was sought and granted. At the end of that adjournment it was agreed that the hearing be further adjourned until the end of Ramadan, the apparent cause of Mr [A]’s dizziness being the traditional Ramadan fasting. The hearing was re-scheduled for Friday 7 June 2019.

41. At the resumed hearing on 7 June 2019, in light of the TTP being reported by DFAT to be predominantly an association of ethnic Pashtuns,[3] I asked Mr [A] if he belonged to any ethnic minority. He said he does not belong to any ethnic minority, let alone Pashtun. This on its own does not mean that a person was not an ethnic Pashtun would not join the TTP or be of interest to them as a potential candidate, and in any event, Mr [A] has repeatedly claimed that he thinks the TTP was interested in him because he was a highly regarded and holy student from a notably revered and devout family.

    The evidence regarding when Mr [A] graduated from the madrassa

    [3] Ibid.

42. Mr [A] was unable to say for sure at the hearing when he graduated from the madrassa: he said it might have been 2006 or 2007. He said that he seemed to recall that his graduation ceremony was held in the winter season, although that could have been anytime between November and March. He said that he recalled the Taliban having harassed and threatened him for about a year before he came to Australia in March 2008. I put to him that the [date] December 2007 letter purportedly sent to him by the Taliban appeared to congratulate him on his graduation from the madrassa as though it were quite a recent event, his evidence cumulatively suggesting that he graduated in November 2007, only four months before he came to Australia, and not in 2006, as claimed in two of his statutory declarations: the 2 October 2013 declaration to the Department and a more recent one submitted directly to the presently-constituted Tribunal, dated 23 May 2019. Mr [A] claimed in his 23 May 2019 statutory declaration that he declined to join the Taliban when asked on his graduation day in “2006” to do so, whereupon “I started receiving demanding letters directly.”

1. The first letter in evidence is the [date] December 2007 letter, suggesting that Mr [A]’s “winter” graduation would have been no earlier, say, than the beginning of winter in November 2007. This would make it impossible for the Taliban to have been harassing and threatening Mr [A] since “2006”. i.e., for about a year between his graduation and his departure for Australia as claimed. The assertions to the effect that Mr [A] graduated from a madrassa in 2006 appear unreliable.

2. I asked Mr [A] if he received a certificate from the madrassa he attended. He said he received a certificate when he completed his studies and not on the day of his graduation, which was later. I asked him who had taught him in his Koranic studies and he named the Maulana [Mr C], discussed above. Asked to name the madrassa, he said it was the madrassa in a mosque called [Mosque 2], possibly meaning “[deleted]”. I put to him that the letter from Maulana [Mr C] came from a differently-named mosque and, in reply, Mr [A] said that his teacher had been obliged to move to a new mosque after having had a problem with a girl. He said the new mosque was simply called the [name] mosque after the name of the village [in] which it was located. I put to him that that was not the name of the mosque as provided in the letter by his teacher ([Mosque 1] in Mansehra). In reply, Mr [A] said the [word], meaning “[deleted]”, was in the name. I note, however, that [word] is a generic name common to many mosques in the Islamic world, and that the name [village name] was not part of the mosque’s name as provided in the letter.

3. I asked Mr [A] if he graduated with other students and, if so, to tell me what he could about what happened to them. In reply, he said he graduated alone and that the graduation ceremony celebrated his graduation only. He said that after the graduation he was taken into a room by the Taliban and invited in a mood of kindness to join their jihad. He confirmed that this happened to him alone. I put to him that this information appeared to contradict what he had said in his 2 October 2013 statutory declaration, where he said, “They took us to a private room and attempted to brainwash us … They told us to join them … They told us to accept the offer …” In response, he said there must have been a mistake in translating his words into what became the 2 October 2013 statutory declaration. I then put to him that his 23 May 2019 statutory declaration also referred to the TTP trying to recruit him and his fellow students, particularly where he said, “I remember questioning them as they tried to recruit us.”

4. Mr [A]’s whole case stems from this alleged encounter with the TTP at his graduation from the madrassa and from what was said on the occasion. The purported TTP letter of [date] December 2007 refers to the graduation, congratulating Mr [A], as already mentioned, and proceeds from there to pick up the matter of the alleged invitation to join the jihad. 

5. The inconsistency in Mr [A]’s evidence about the graduation day encounter did not strike me as being minor or peripheral, because it involves a discrepancy between whether the TTP made their request to Mr [A] alone and whether they did so in the presence of witnesses to whom they spoke as a group. On review of the evidence, I find that Mr [A] did not resolve this discrepancy. This problem accumulates with the fact that Mr [A] has given discrepant dates as to when he graduated: the significance of the difference between 2006 and 2007 is a whole additional year of being harassed by the TTP before Mr [A] came to Australia; also, the TTP was not formed until December 2007,[4] when five pro-Taliban groups in Pakistan merged, which makes it hard to conceive just who would have been visiting the madrassa, as suggested in Mr [A]’s claims, up till that year.

   The question as to why Mr [A] was sent to a madrassa that had allowed the TTP to recruit boys from it

   [4] “Pakistan Challenges Taliban to Show Leader Mehsud Still Alive,” Bloomberg, 9 August 2009,

6. Mr [A] told me that the TTP used to send members to the school periodically to speak to the students there, taking aside the interested students to talk to them and leaving the uninterested ones to I asked him why he thought the teachers at his madrassa, which was established in a mosque serving the local Pakistani Sunni Muslim community, would have had anything to do with the particular and notorious interests of the TTP. In response, he said the mosque and its adherents supported the freedom fighters in Kashmir, which is the long-disputed territory in the border between Pakistan and India. I put to Mr [A], on the basis of a wide range of sources, that support for Pakistan’s seventy-year nationalist claim over Kashmir is not the same as support for the Pakistani Taliban or TTP: for a start, the TTP and the government with its nationalist interests in Kashmir have been battling each other since the TTP was formed. In response, however, Mr [A] said that the names “TTP” and “Mujahedin” (freedom fighters) are “interchangeable”. Independent country information gives the impression, however, that whereas the Mujahedin in Kashmir support Pakistan’s national government, the TTP is violently opposed to it.[5] Also, the pro-Pakistan militant groups in Kashmir,  comprising Lashkar-e-Taiba, Hizbul Mujahideen and Harkatul Mujahideen do not appear to include the TTP.[6]  Whereas, say, out of enmity towards India, the TTP may support one or other of the groups contesting sovereignty over Kashmir, it is evidently inaccurate to suggest that “TTP” and “Mujahedin” are interchangeable terms. In light of independent country information, I did not find Mr [A]’s information helpful in explaining why his local madrassa allowed itself to be visited by TTP recruiters as claimed.

   [5] Insurgents Share a Name, but Pursue Different Goals,” The New York Times, 22 October 2009,

   [6] “Who are the Kashmir militants?” BBC News, 1 August 2012,

7. I asked Mr [A] why his father would even have sent him to a madrassa that was being targeted by the TTP as a place for recruitment. In reply, he said his father might not have seen what was eventually going to happen to them “down the track”.

8. Mr [A] told me at the hearing that he did not know or remember whether the TTP invited him to join them and their jihad on the day of his graduation. I therefore asked him if the first invitation he could recall having received had been heard or read by him, and he said he could not remember. This seemed troubling because, as recently as in his 23 May 2019 statutory declaration, Mr [A] confirmed what he had said in his 2 October 2013 statutory declaration, recalling that the Taliban visitors had tried to recruit him (and others) on the day of his graduation, and that his response to their efforts had angered them on the spot.

9. The information that Mr [A] provided in his protection visa application form about his past education did not include anything about the madrassa; rather, he said he attended a state school. I therefore asked him if there was a certificate issued to him by the madrassa, and he said that he had been issued a certificate when he had finished his examinations, prior to the ceremony. I asked him to explain the purpose of the graduation ceremony if no certificate was conferred to him on the day and he said it was to encourage the other students.

10. I asked Mr [A] to tell me how many of his siblings also had Koranic education similar to what he had at the madrassa in the mosque. In reply, he said, “No-one. Just me.” He later said that three of his brothers attended the same madrassa, including his youngest brother [Mr D] who also came to Australia; he said that these three brothers did not complete their madrassa education, however.  

    Evidence suggesting a significant change of socio-political conditions in KPK province since 2013-14

11. I put to Mr [A] that whether, or not, the TTP had tried to recruit him in 2006 or 2007 and in letters over the next six years, as suggested in his claims, there appeared to have been significant political change in Pakistan, and in KPK province in particular. Since 2013, national institutions including the armed forces, police and courts having secured KPK province in 2013-2014, entrenching national control in the province even further, in 2018, with the incorporation of the former Federally Administrated Tribal Areas (FATA) into KPK province.[7]  The TTP reportedly fragmented into at least four groups in 2014, and more since, with the defections reported to have left it lately described as “beleaguered” and in disarray.[8] A rump of the splintered TTP was reportedly forced to move out of KPK province and into Karachi by 2015.[9] Pakistan Today, reporting on 30 May 2018, gave a positive view of the merger of FATA into KPK province, with particular reference to the benefits that the rule of law would bring over time based on observations about the success of the process since taking back the province from the grip of Taliban influence in 2013-2014.[10] DFAT reports: “Local observers, including officials, in [KPK province] also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.” Whereas it assesses that, “sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo)” DFAT nevertheless reports: “Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations.”

    [7] “Pakistan's National Assembly passes bill to merge FATA with KPK,” Arab News, 24 May 2018, “President signs KP-FATA merger bill ,” The Nation, 28 May 2018,  

    [8] "Isis ascent in Syria and Iraq weakening Pakistani Taliban," The Guardian, 23 October 2014,

    [9] “Back from the brink,” The World Weekly, 22 October 2015

    [10] “Greater KPK,” Pakistan Today, 30 May 2018,

12. Since 2014, with the Pakistani government having reclaimed much more control over KPK province, the splintered Pakistani Taliban has reportedly had to seek refuge in Afghanistan, although not without sporadic attacks on political and policing figures:[11]

    “The operational capacity of the TTP [Tehreek-e-Taliban] is, today, a lot more limited than what it was before the military operation was launched," says Simbal Khan, an Islamabad-based security analyst.

    "Zarb-e-Azb has succeeded in eradicating bases within Pakistani territory, where they had networks, support and logistics."

    The Pakistani military says it has now reclaimed the tribal districts from the Pakistan Taliban's grip, reestablishing the writ of the state and pushing the Tehreek-e-Taliban's fighters across the border into eastern Afghanistan, where they are suspected to be based out of Nangarhar and Kunar provinces.

    Hakeemullah Mehsud's successor as Pakistan Taliban chief, Mullah Fazlullah, was killed in a United States' drone attack in Afghanistan's Kunar province in June. The group has since installed Noor Wali Mehsud as its new leader.

    "Pakistan has repeatedly shared both information and intelligence with Afghanistan as well as [NATO] authorities regarding [the Tehreek-e-Taliban's] presence/safe havens inside Afghanistan," the military said in a statement emailed to Al Jazeera. "They are living there due to small presence of force on ground owing to lack [of] capacity."

    The shift across the border, analyst Khan says, has limited the group's ability to attack government and civilian targets as frequently as it used to, forcing it to change its tactics.”

    [11] “Pakistan’s Anti-Taliban Party on the Hit List Again,” The Diplomat, 12 July 2018,

13. Specific to the situation in Mansehra, authorities were reportedly pre-emptive in arresting alleged Islamist plotters in that city in March 2019:

    The joint operation was carried out under Operation Radd-ul- Fasad on an intelligence sharing between security agencies, and the arrested terrorists, who were blindfolded, were shifted to an undisclosed location. The apprehended terrorists were involved in sabotage activities in Hazara [division] including targeting police and military convoys, target killing of LEAs [Law Enforcement Agencies] and attack[s] on [Shi’a Muslim mosques, or] Imambarghas.[12] 

    [12] “Five terrorists arrested in Mansehra,” Dawn, 13 March 2019, >

    I invited Mr [A] to comment on the information about substantial socio-political change having significantly weakened the TTP and its affiliates in KPK and Pakistan generally, and he said he could not comment specifically except to say that his father continued to receive threats from the Taliban until moving to [Country 3] in 2018.

14. Mr [A] having said that, I note that the purported documentary evidence of the TTP threats in this case, being the letters that Mr [A] claims he and his father received and the purported FIRs to police, only extends into 2013. Mr [A] told me, however, that his father did not really share any information with him about threats after 2013. I asked him why his father would not have kept him up to date, perhaps even with copies of letter and FIRs, if there were any, and he said that his father deliberately withheld information because he, Mr [A], was “under tension”. I put to him that his psychological condition had not stopped his father from sharing information in support of his application before and, in reply, he said his father only did that up until 2013.

15. I put to Mr [A] that the picture before me, as provided in the independent country information and, apparently from the evidence he had submitted, was that the relevant situation had died down radically, with the Pakistani authorities having scattered the TTP. In reply, Mr [A] said, “Maybe. Whether conditions improved, I don’t know.” He then asked why his parents would have left Pakistan if his father had not continued to be threatened. I put to him that there are lots of reasons why elderly parents emigrate to join their adult offspring in other countries, particularly if there’s no-one left in their home country to perform the traditional role of caring for them. In response, Mr [A] said that he agreed there might be a variety of reasons why his parents moved to [Country 3]; he cited “health” and “family reasons”, but added that in his father’s case, he had been asked by his eldest son repeatedly to join him in [Country 3] and refused, only deciding to do so in 2018. Essentially he was suggesting that something like a threat in Pakistan might have pushed his father to emigrate in 2018. This suggestion struck me as being, at best, bald speculation.

    The TTP / Taliban letters

16. Regarding the Taliban letters, Mr [A] told me they were all delivered to his family home. I put to him that although many of the letters contained threats to kill him if he did not join the TTP, and also threatened to kill his father and the rest of their family if he did not do so, it seemed remarkable that, in fact, no member of the family was killed in all the years when the TTP was as active as it was in KPK province, or in any of the years between 2013 and 2018 by which time his parents had migrated to [Country 3].

17. In response, Mr [A] said that the TTP was probably thinking that if they killed his father, it would not achieve anything. This seemed an odd thing to suggest because by killing Mr [A]’s father the TTP, which had a record for killing enemies and traitors, would be living up to its word, which it might need to do in order to exert any authority over people; in addition, it would be avenging Mr [A]’s actions in refusing to join it. Mr [A]’s explanation as to why the TTP did not kill any member of his family, as he suggests it was well capable of doing, as well as having good reason in its own view for doing so, did not strike me in the claimed circumstances as a plausible one.

18. I asked Mr [A] if any of the TTP letters had been signed by anyone, and he said he could not remember. Evidently, however, there is no name on the letters to help the reader locate the person inviting Mr [A] to join the TTP, and the letterhead includes to return address. As noted, the letters are dated according to the Gregorian calendar. More to the point, I raised with Mr [A] the issue of several of the letters asking him to respond to the demand that he join the TTP without any of them providing a timeframe or deadline, even after noting with frustration that he has failed to respond in the past. In this way, the letters appear to lack an air of reality. In response, Mr [A] said he could not comment; he then added that “maybe” this was the way the TTP did things.

19. I then put to Mr [A] that, wherever the letters invite him to respond, the most that they do is ask him to put a written response in the “nearest letter box”. I put to Mr [A] that letterboxes in Pakistan are not addresses, and he did not dispute the observation. I put to him that nothing in any of the letters suggested how Mr [A] could respond to the demands to join the TTP even if he wanted to join. I put to him that this seemed incongruous in the claimed circumstances, the letters appearing in this way to lack the air of reality. I asked him how the TTP would even expect him to be able to respond if they did not impart to him a practical method of responding and he said, “I don’t know.” I put to him that this seemed illogical, and he said, “We didn’t want to reply, so we didn’t think about that.” The thing is that I was inviting Mr [A] to think about this particular issue then and there, at the hearing, so I repeated to him how and why it seemed illogical to me that the TTP, whilst saying that it wanted him to reply, in fact never gave him any logical, useful information as to how he could respond in time to save his life and the lives of his family members. In reply, he said again, “we didn’t think about that.” I put to him that his responses were not helping me to put any reliance in the letters being authentic documents: I was asking questions about the TTP’s thinking whilst he seemed to keep talking about his own. He then said this was a matter for the Tribunal.

20. I asked Mr [A] where the originals of the TTP letters are and he said he had them beside him. I did not ask to see them.

    The FIRs

21. I asked Mr [A] about the stamps on the FIRs: they did not appear to identify any particular police station; they just say “Police Station City *Mansehra*”. In reply, Mr [A] said, “Yes. It would be Mansehra station. I asked him how many police stations there are in Mansehra and he said Mansehra has only one main police station. He said this station was the closest to where his family lived.

22. I asked Mr [A] where the original FIRs are and he said he also had them with him. I asked him if FIR originals should not be held by the police who took the reports, the better to act upon them if and when possible. In response, Mr [A] said that his originals are copies.

23. I raised with Mr [A] my concern to the effect that the purported FIRs submitted by him in evidence seemed to be on loose leaves of blank A4 paper whereas, according to DFAT:

    5.73  FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[13]

    [13] DFAT Country Information Report: Pakistan, 20 February 2019

1. I put to Mr [A] that the DFAT advice warns decision makers to be cautious about accepting a purported FIR from Pakistan uncritically. I put to him that, in this particular case, the concern appeared to be even more acute because the purported FIRs submitted in evidence in this case did not appear to have been made on standard forms, as the DFAT advice suggests they would need to be. In reply, Mr [A] said that the original FIRs were written down in an event book at the police station and that these copies had been taken from the pages of that book. I put to him that the copies he had submitted were very clearly copies of loose sheets of paper, i.e.,  cut on all four sides. The documents submitted were thus not even consistent with his description of how they should look. In response, Mr [A] simply said, “That’s what I have.” I asked him if the police book would not have page numbers and headings to be filled out, and, in reply, he said, “In our area [we] just [have] this blank paper.

   Attacks on Mr [A] during return visits to Mansehra in 2012 and 2013

2. Mr [A] said he stayed with his family and his family home during his January-March 2012 visit. He said he stayed at the same place throughout all of his visit in September-October 2012. He said he stayed there throughout all of his visit in June 2013, when he went to be with his mother who was recuperating at home from surgery.

3. With regard to his first visit back in Mansehra, in January-March 2012, I asked Mr [A] about the claim in his October 2013 statutory declaration about coming back to Pakistan full of confidence gained in Australia to speak negatively to the TTP and their teachings: “I used to speak in public against those people and told them to avoid [or desist in] their teachings because they are misguiding us and our generations.” According to the statutory declaration, the TTP accosted him at gunpoint apparently after he had confronted their members and also after he been discouraging people from joining them.

4. Mr [A] said to me that he told the TTP during his return visit that what they were doing was wrong, and also told them that he had been encouraging people not to join them. I asked him if he specifically spoke out against the TTP in public, and he said that generally he wold do so if people ask him. I asked Mr [A], then, to say specifically what he did do, rather than what he would do, and in reply, he said he had forgotten. I put to him that it was hard for me, then, to form a clear picture of what he actually did during his January-March 2012 visit. He then said that a friend came to him and warned him not to speak out against the TTP. I asked him if he took the friend’s advice and he said, “No. And he turned against me because he was sympathetic [towards the TTP].”

5. I asked Mr [A] to describe the March 2012 incident in which the TTP members accosted him at gunpoint. He said he could not remember. He said he was going somewhere when the TTP took him aside. He said there was a squabble. He said they beat him. He said this was the first encounter he had with anyone from the TTP during the trip. I asked him to describe the encounter and he said they started by speaking in a loving tone, encouraging him to join them. Apparently when he refused they pushed him and assaulted him. I asked him what then happened, and he said that he was injured on the head, the injury rendering him half conscious. He said he cried for help and was taken to a doctor. I asked him who took him and he said he could not remember, even though this appears to have been indicated explicitly in documentary evidence submitted to the Department. I asked Mr [A] to say what else he remembered, and he said he could only remember the doctor asking him his name. He said he spent an afternoon and evening in hospital. He said the hospital called his parents who took him home. He said his parents and wife took him home.

6. I put to Mr [A] that he had submitted to the Department two conflicting accounts as to what happened as a result of the alleged March 2012 attack, and that the account he had just given me appeared to conflict with both of them: in his October 2013 statutory declaration he had said that he remembered nothing between being hit on the head by the TTP and waking up with his wife next to him; in the 12 March 2012 doctor’s note, submitted to the Department and to the previously-constituted Tribunal, the doctor said that he walked into the hospital, accompanied by a police constable, in a condition that was “stable and well oriented with time and space”. In response, Mr [A] said he could only recall telling the doctor his name. He said he recalled having previously said he was unconscious between the attack and waking up with his wife beside him, but could now recall having been conscious enough at one stage to tell the doctor his name.

7. I considered the possibility of Mr [A] having gradually gained more memories of the alleged attack over time such that, although he previously said he had been unconscious throughout all of his treatment, he could now, more recently, recall having been able to give his name to the doctor. One problem with this, though, was that generally, Mr [A] claimed to be less able to recollect facts these days due to his issues with mental stress and medication. When I drew his attention to the doctor’s professional opinion about his being “stable and well oriented with time and space”, he said that the doctor might have formed this view simply on his ability to say his name.

8. Regarding his next visit to Mansehra, in September-October 2012, I recall that Mr [A] declared on 2 October 2013 that when he visited, for the purpose of gathering his wife to bring her to Australia, and also to see his family, nobody knew he was in Pakistan except for his family and he stayed “in a place unknown to anybody else”. He indicated that he kept a low profile due to the letters he and his father had been receiving and due to the assault he had suffered during the first visit home. However, in his 23 May 2019 statutory declaration and in evidence to me, Mr [A] said he stayed in his family home, which seemed like the usual place he would stay rather than “a place unknown to anybody else”. I therefore put to Mr [A] that his returning to stay in his family home for a month did not appear to be consistent with his purportedly having stayed “in a place unknown to anybody else”. In reply, he said that what he meant by this line in his 2 October 2013 statutory declaration was that nobody knew he had come back to Pakistan except for his family. I put to him that he separately stated in that statutory declaration that nobody knew he had come back to see his family and that he stayed “in a place unknown to anybody else”. I put to him that a plain reading of the 2 October 2013 statutory declaration did not easily yield on its own that “a place unknown to anybody else” was in fact his family home. In reply, he said that only his parents knew he was staying with them in his home throughout that month. This explanation did not sit with Mr [A]’s other evidence to the effect that he visited his former Maulana and also visited a marketplace during that visit.

9. I asked Mr [A] about the kidnapping during his third visit home in June 2013. He then told me that he was abducted from a market, blindfolded, bound at the hands and feet, and taken by car on a journey that lasted between one and two hours. He said he was beaten during the trip. He said that at the destination he was taken into a house, beaten on arrival and led by three or four people into a room. He said that in this room he met a man who appeared to be the leader, who said to him, “we were trying to persuade you [to join us and] you refused. Now we’re going to cut off your head and play football with [it].” He said the leader tried to convince him to join the TTP by reading koranic verses to him and expressing views about “the Western world”. He said the leader lectured him for about thirty to forty minutes. I asked him how he managed to be on a flight back to Australia within about five days, and he said that he promised to the leader he would join, returning there with his wife, whereupon the TTP let him go. I put to him that in letting him go the TTP appeared, in spite of previous experience, to trust him. In reply he said he could not comment, but then said, “Maybe. [They] let me go.” I queried how the TTP could let him go from a secret location. I also queried how and why the TTP would believe his promise, as they seemed to do in this version of events, that he would bring his wife back to a location he did not even know. In reply, Mr [A] said he did not precisely know. He said the TTP members then beat him up so severely that he woke up again in hospital. I put to Mr [A] that it seemed far-fetched that the TTP beat him so badly that he was rendered unconscious (again) after apparently agreeing to release him on his undertaking, accepted by them, about coming back and joining them soon after. In reply, he said he could not comment, and then he said, “These are the facts. They were probably going to kill me.”

10. This response did not seem to explain anything adequately, however, because at this point Mr [A] was explaining how he had succeeded in convincing the TTP to let him go on the basis of his promise to come back as a recruit. Also, if the TTP was “probably going to kill” him in or near what was evidently a remote and secret safe house, perhaps because they did not trust him, it seems illogical in the claimed circumstances that they did not do just that. Attempting to address my concerns, Mr [A] repeated his claim about having promised the TTP in that safe house that he would “come back”.

11. I asked Mr [A] if he was ever informed or ever found out where the safe house was, or where it was whether he was supposed to “come back”, as agreed. In reply, Mr [A] said he never found out. I thus asked him how he was supposed, in anyone’s point of view, to “come back” to a location he was never given to know. In reply, he seemed to change his evidence somewhat, saying that he and the TTP agreed between themselves that he would go back home to speak to his parents and that afterwards the Taliban would come to the Mosque or to the marketplace in his village and that he would then go off with them from there. This supposedly “agreed” arrangement was not only different from the supposedly accepted offer to “come back” to the safe house, but it seemed to do nothing to explain why, after the matter was agreed, Mr [A] was beaten unconscious. Whether the TTP meant to kill him of expected him to return, they seemed to be going an odd way about either project, because they left him alive to flee Pakistan yet again.

12. I asked Mr [A] about the letter he evidently obtained from Maulana [Mr C], the imam at [Mosque 1] in Mansehra, who claimed to have educated Mr [A] in the Koran. He said he sought that letter from the Maulana on [date] June 2013 two days after receiving the [date] June 2013 letter in which the TTP recalled having injured him to discourage him from ignoring their demands. This would have been five days before Mr [A]’s being hospitalised with the injuries sustained during or after the abduction to the TTP safe house. I asked Mr [A] to name the mosque where his madrassa had been and the madrassa’s name if it was different from that of the mosque. In reply, he said the name of the mosque and the madrassa had been [Mosque 2]. He said the other name for the mosque was [Name]. I asked why the letterhead for this letter indicated the author being posted to a different mosque with a different name, and Mr [A] said that the Maulana had had a problem at [Mosque 2] “with a girl” and had subsequently joined [Mosque 1]. Mr [A] told me that he had shown some TTP letters to the Maulana who had then agreed to write the letter on his behalf. Mr [A] did not suggest in any of his evidence that the Maulana independently witnessed him or his family being harassed by the TTP or anyone else, let alone at the Mosque where one purportedly taught the other.

13. At the third hearing, I asked Mr [A] about the injuries he received when the TTP beat him until he was unconscious in June 2013. He said he suffered a swollen mouth and mostly internal injuries. He said he was unable to walk after the beating. I asked him how he had been rendered unconscious and he said that that the Taliban beat him severely and that he, therefore, became unconscious. I asked him if he could explain in detail the contents of the doctor’s note of [date] June 2013. He was not able to provide any detail beyond suggesting there was a prescription of some kind. I asked him if he could remember what he had been prescribed and he said he could not. He then said he had been prescribed two kinds of pain killer to take over two weeks.

14. Mr [A]’s adviser assisted me in reading some of the handwriting on the doctor’s note:

    Patient is brought in evening by unknown person. Patient is semi-conscious [and] not well oriented with space and time.

15. The doctor’s note also reports that Mr [A] suffered an injury to his eye.

16. Mr [A] and his wife Ms [B] talked about the aftermath of this attack, Mr [A] expressly telling me that he agreed with his wife’s recollection of the facts. Ms [B] said that in July 2013 Mr [A] was missing for a time and that after that they came to Australia. She said he went to a bazaar and did not return. She said that she later learned he was in hospital. She said she found this out from Mr [A]’s father. She said Mr [A]’s father took her to the hospital where they found Mr [A] bruised. She said her father-in-law took her home, that Mr [A] was later discharged to his family home and that he and she then returned to Australia “in a hurry”.

17. I asked Ms [B] if she found out at the time what had happened to Mr [A] during his disappearance from the bazaar. After some delay, she said, “Yes. The T[TP] took him and threatened him.” I asked her how she found that out and she said, “I was a member of the same family discussion of events. Therefore, I became aware of the situation.” Her response to my question seemed somewhat vague and generalised. I asked her if she could provide more detail as to who told her that her husband had been kidnapped by the TTP, and she said her father-in-law told her. I put to her that I was wondering why Mr [A] did not tell her, and she said she had not thought at the time that it would be a good idea to ask her husband what had happened to him because of his mental instability.

18. Mr [A] confirmed that he and Ms [B] flew back to Australia four days after his discharge from hospital. He said they resided at his parents’ home for the whole time. I asked him if he and Ms [B] spent any time staying in Islamabad and he said, “No.”

19. I asked Mr [A] what the original return date on his air ticket had been, as I recalled from his 2 October 2013 statutory declaration that he and Ms [B] that they had travelled to Islamabad to arrange an “early” ticket back to Australia. In reply, he gave evidence contradicting this suggestion that he and Ms [B] altered their return date. He now said that they did not have return tickets of any kind at the time as they had not been considering return to Australia when they flew back to Pakistan in June 2013. This essentially contradicted another claim in the 2 October 2013 statutory declaration where Mr [A] said that this trip was a visit to see his sick mother, rather than an intended return to live in Pakistan indefinitely.

    I asked Mr [A] if he reported the July 2013 kidnapping and assault to the police between his discharge from hospital and his departure from Pakistan, and he said he did not. He said he had reported the March 2012 assault only to be advised by the police to look after himself as he saw fit. He told me he saw on benefit in reporting to the police after this “second time” in July 2013. He said his wife told him that the better idea would be just to flee Pakistan. I note in particular that Mr [A] provided me with the rationale he had had at the time for not reporting the second attack to the police. I then put to him that this version of events did not appear to sit with what he had said in his 2 October 2013 statutory declaration, only four months after the alleged kidnapping: he had declared in that statutory declaration that after his discharge from hospital he made a police report against the people who had abducted him and also put a notice in the newspaper, and then left for Islamabad where he and Ms [B] arranged an “early” return to Australia. He has said in the newspaper notice: I am being threatened by some people for the last six years … I am a student trying to get Education … this situation is spoiling my Education”; the tenor of this notice being that he had indeed been intending at the time to return to Australia to continue his education.

20. In response to this evidence of a discrepancy about whether he reported to the police after discharge from hospital in July 2013, Mr [A] said the police had already told him on a previous occasion, when he reported the dropping of TTP pamphlets at his family’s home in an FIR dated 14 June 2013, that the police could not do anything. He said this was why he did not go again to report the kidnapping. I put to him that his 2 October 2013 statutory declaration showed an order of events in which he was discharged from hospital, reported to the police and then left for Islamabad and Australia. I invited him to comment, and he said he could only remember what he had told me.

21. I asked Mr [A] if he could provide the date for the newspaper notice(s) he had published and, locating the original newspaper, he said the date had been [June] 2013. I put to him that his 2 October 2013 statutory declaration read as though he had published the newspaper notice after the stress of the kidnapping, assault and hospitalisation. In reply, he said, “Yes.”

22. At the conclusion of the third hearing, Mr [A]’s advisor drew my attention to submissions that were in transit. These included independent country information and submissions regarding the issue of credibility. She asked for more time to present a psychologist’s report and I granted until Monday 8 July 2013. She also said it had been indicated to her that Mr [A]’s brother in [Country 3] was willing to give evidence by telephone regarding the reasons why Mr [A]’s father eventually left Pakistan in 2018. I considered this and then drew the advisor’s attention to the fact that she and Mr [A] had already submitted a written statement from Mr [A]’s father addressing this subject. I also drew to their attention that Mr [A]’s brother had not been living in Pakistan for several years. (He was not there, say, in 2012 or 2013.) The advisor then said that the brother might be able to amplify the statement from Mr [A]’s father, adding that Mr [A]’s father was no longer in a position to give evidence of his own because he had suffered a stroke. In the circumstances, I indicated that I did not anticipate calling Mr [A]’s brother in [Country 3], let alone to give evidence second-hand, as it were. I assured them I would have regard to the statement from Mr [A]’s father. Mr [A] and his advisor gave no objections to the approach I proposed.

    Submissions to the presently-constituted Tribunal

23. Mr [A] submitted a 19 May 2019 statement from a friend named [Mr E] in which the author claimed to have known him back in their common neighbourhood in Mansehra, Pakistan. Mr [E]’s statement summarises Mr [A]’s claims but does not describe having ascertained any facts independently. Mr [A] submitted another statement from another friend who called him very “friendly and honest”.

24. Mr [A] said in his 23 May 2019 statutory declaration during his visits back in Pakistan he had succeeded in convincing one of his friends, [Mr F], to stop supporting the Taliban, only to learn that [Mr F] was beheaded by them in 2013. He said he himself had been treated with medication for post-traumatic stress disorder since 2014. He said that if he has to return to Mansehra now he does not know what he will do as all his family has left Pakistan and his wife’s family will still expect him to provide for her and their children even though he has no family there to help him. He said that Ms [B]’s family are scared now to be associated with him. He said that after he returned from Pakistan in 2013 he proceeded with his education but did not complete it due to stress. He said he would be devastated if he had to leave the country in which his and Ms [B]’s child, still born in [date], is buried.

1. Mr [A]’s father lodged a statement dated 15 May 2019. It says that his son Mr [A] “is the target of [the] Taliban in Pakistan.” It goes on to say that “I received threats and [got] beaten up a couple of times from these people, warning me to present and hand over [Mr [A]]. I have since moved to [Country 3] with my wife.” He added that it was dangerous for any member of his family to return to Pakistan.

2. Mr [A]’s advisor produced a 23 May 2019 submission summarising Mr [A]’s claims and his immigration history as well as providing legal arguments and relevant independent country information. The same submission cites a Tribunal decision (1417846) accepting that there was Taliban activity  in and around Swat Valley, in KPK province, in 2014. Addressing the issues of internal relocation and effective state protection, this submission argues that for the purposes at least of s.36(2)(aa) there is not yet any adequate jurisprudence as to what constitutes reasonable internal relocation and effective state protection, compared with all of the jurisprudence relevant to consideration of claims against s.5J of the Act. The adviser drew attention to DFAT having observed that effective state protection in Pakistan is limited by resources, personal socio-economic status and political will. 

3. Mr [A]’s advisor submitted a number of Tribunal decisions in which she sought to compare my February 2019 conclusions in one case regarding a Pashtun protection visa applicant from Swat Valley with two 2018 decisions by another Tribunal member in the cases of two other Pashtun applicants also from Swat Valley. In the case I heard, the primary decision was affirmed; in the matters heard by the other member, they were set aside. The apparent intention here is to question whether my approach to facts has been consistent with that of the Tribunal generally, and I have taken the apparent argument into account. However, all of these decisions were made in relation to the merits of claims made by individual applicants with the specific ethnicity not shared with Mr [A], who resided in a specific mainly rural region in Pakistan that is a substantial distance from urban Mansehra. Given the need to assess cases on their individual merits, I find there is little that can made from the fact that my decision in the case I heard did not more closely resemble my colleague’s decision in the other two cases.

4. Mr [A]’s advisor submitted on 6 June 2019 that DFAT’s latest Country Information Report: Pakistan, dated 20 February 2019, says that Pakistan continues to face security threats from terrorists and insurgents like the TTP in spite of the authorities having conducted the large-scale Operation Zarb-e-Azb offensive.

5. Mr [A]’s advisor sent a 16-page submission dated 1 July 2019 in which she addressed concerns raised at the three Tribunal hearings.

6. The first concern addressed was the one about why the TTP did not kill Mr [A] as it threatened to do. The advisor said that a mere threat, with its “attendant psychological suffering” is capable in itself of constituting serious and significant harm. She also referred to DFAT having located statistics regarding a 29% decline in the number of terrorist attacks in Pakistan in 2018 after a 16% decline in 2017, with DFAT nevertheless observing that Pakistan still faces security threats from militant insurgent groups. 

7. Mr [A]’s advisor wrongly states at page 7 of this submission that Mr [A] used to reside in Swat Valley, in Swat district, KPK, Pakistan. Perhaps this is why she took so much trouble to send me the three Tribunal decisions regarding different Pashtun applicants from Swat valley. In any event, Mr [A] is not from Swat, from which Mansehra district, is cushioned by at least one other district. Mansehra district abuts the district surrounding Islamabad.

8. Addressing my concerns as to the authenticity of the purported TTP letters, the advisor cited independent material stating that the Taliban in Afghanistan regularly posted letters and leaflets in villages warning the inhabitants against co-operating with US forces and the then-Karzai regime. This information about Afghanistan might well be accurate, but it does not help argue the authenticity of the letters demanding that Mr [A] respond in writing to TTP demands without saying specifically where he should send them.

9. This submission also addresses my concerns about the discrepancy between Mr [A] being “unconscious”, between the alleged March 2012 attack and waking up in hospital with his wife beside him, and his being “well-orientated to space and time”. The submission, in fact, does not deal with the original claim about being “unconscious”, preferring to take up Mr [A]’s third version of events wherein he was in his own opinion “semi-conscious” throughout his admission. The submission argues that the difference between being subjectively “semi-conscious” and objectively being “well-orientated to space and time” is inconsequential. Having considered the evidence before me, I remain of the opinion that there is an unresolved discrepancy between being “unconscious”, not knowing of anything that elapsed between being hit and waking up in a hospital bed, and walking accompanied into a hospital “well-orientated to space and time”.

100.   The advisor deals in the submission with issues raised at the second and third hearings about evidence from Mr [A]’s brother [Mr D] in his own case. As I assured Mr [A] and the advisor at the third hearing, I am not relying in any way on the possibility of discrepancies between his own evidence and his brother [Mr D]’s.

101.   The last item submitted is a report from Mr [A]’s psychologist summarising an oral history provided by Mr [A] to the author. The report refers to Mr [A] having said that he was kidnapped in Pakistan in 2012 and 2013, whereas Mr [A] claims directly that he was kidnapped only in 2013. It is not clear whether Mr [A] said something to the psychologist that he did not tell the Department or the two Tribunals, to date, or whether the psychologist simply erred in retelling what he heard. On reflection, it seems unreasonable to regard the inconsistency as having come from Mr [A]. I consider it more likely that the error is that of the psychologist recounting claimed events second-hand. Whereas I do not find that the discrepancy weighs against Mr [A] in this matter, it is nevertheless the case that this kind of report is not corroborative of Mr [A]’s claims whether recounted accurately or not, since it cites Mr [A] as its source.

102.   The report diagnoses that Mr [A] suffers from anxiety and depression as well as “moderately severe PTSD with some of his experiences bordering on paranoid psychosis” without his being psychotic in the strict sense of the term. The report states that the prescribing of a mild anti-depressant combined with a mild anti-psychotic has been beneficial. The report concludes with the impression that Mr [A] is a sincere person genuinely distressed by past events “as described above”. The report appears to rely on events Mr [A] has chosen to describe. The psychologist, in assessing Mr [A]’s PTSD and depression, does not appear to be aware that he and Mr [B] lost a child in 2014. This particular report does not suggest that Mr [A]’s memory is impaired or incapacitated by conditions beyond his control, whereas Mr [A] and Ms [B] suggested as much at the Tribunal hearings.

Findings in relation to s.36(2)9a) of the Act

103.   In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[14] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[15]

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

[15] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

104.   The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[16] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[17]

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

[17] Sun v MIBP [2016] FCAFC 52 at [69].

105.   All the claims in this case flow from Mr [A] encountering TTP recruiters at his madrassa graduation ceremony. However, Mr [A]’s evidence about when he graduated from the madrassa and whether he graduated alone or in a group is inconsistent, and the inconsistencies are unresolved. Mr [A] was also inconsistent with regard to when and in what circumstances he first heard the TTP recruiters’ conciliatory manner turn to anger. His description of a graduation ceremony in which no certificate was conferred because it was already given struck me as being improvised. Meanwhile, it strikes me as incongruous that Mr [A]’s family, which, though devout, was opposed to the TTP, sent him to a madrassa that was prone to interference from the TTP. Not all of these problems in Mr [A]’s evidence can reasonably be argued to arise due to vagaries of time and memory, stress, or other mental/psychological issues.

106.   On the evidence before me, I am not satisfied that Mr [A] was the subject of TTP recruiters’ interest at the time of his purported graduation from the madrassa.

107.   One quite logical inference from this is that all the evidence of direct and personal conflict with TTP recruiters and agents since Mr [A]’s graduation from the madrassa must or might be unreliable. However, I am not merely relying in this decision on mere inference, for in this particular case, I have found defects in the specific evidence of events following the alleged graduation.

108.   For example, as discussed the purported TTP letters repeatedly express extreme frustration with Mr [A]’s refusal to join the TTP and also repeatedly threaten to kill him and all his family should he continue to refuse to join the TTP. Over the time period covered by the dates of the letters, Mr [A]’s refusal to be moved to join the TTP must be plainly obvious to the authors and yet the threat is made empty repetition. No-one was killed between 2006 (or 2007) and 2018. The submissions about independent country information suggesting that this kind of letter is typical of Taliban activities does not help to explain why a group with such a violent and ruthless reputation spent so many years writing virtually the same invitation to Mr [A], over and over again, offering the same stick and carrots as it were with the same, arguably predictable, lack of success, all the while eroding its reputation through a failure to carry out its threats.   

109.   In addition, as also noted, the letters invite Mr [A] to signal his compliance with their demands in writing but provide no practical, plausible suggestion as to how or where Mr [A] should send his response. In this sense, the letters strike me as being the product of flawed invention by someone not at all connected to an authentic and genuine process of actual recruitment. This problem, a significant one in my opinion, cannot be explained in terms of Mr [A]’s claimed psychological issues. The letters have evidently been drafted by someone with no genuine stake in facilitating their stated purpose.

110.   There is no consistent timeframe in this case into which the letters sit. Mr [A] claimed the TTP harassed him for over a year before he left Pakistan and yet the text of the letter he purportedly received first, which indeed reads like it is the first letter its author wrote after his graduation, was written in late 2007, more than a year after when Mr [A] sometimes claimed he graduated. This timeframe problem leaves the first letter, as dated, significantly disconnected chronologically from the events with which it purports to be more or less closely contemporaneous. 

111.   In weighing these factors, I have had regard to DFAT reporting about the easy availability of forged documents in Pakistan. Having considered all of the relevant evidence before me, I conclude that the TTP letters are fraudulent.

112.   On the findings so far, one might reasonably conclude that the rest of Mr [A]’s claims and evidence must also be fabricated: since the TTP did not try to recruit him at the madrassa or write demanding and threatening letters to him, then the accounts of assault and kidnapping seem unreliable and documentary evidence suggesting attempts to engage the police might also be fabricated. However, I am confident that I can make stronger findings of fact, for I have identified quite specific defects throughout the rest of Mr [A]’s additional evidence.

113.   The police FIRs presented in this case are evidently set out on blank loose leaf paper, albeit furnished with ink stamps, and Mr [A] said he had the originals with him, whereas he also indicated that what he had was copied from a police event book and DFAT reports, meanwhile, that FIRs are usually set out on a standard form. DFAT, as noted, also reports that FIRs even if they appear to be made on standard form, which those presented in this case are not, are relatively easy to counterfeit; that police in Pakistan are known to accept bribes to verify fraudulent FIRs and that, for all these reasons, events described in an FIR have not necessarily occurred. Whilst I am not relying on the DFAT information alone, it supports my concerns about the anomalies evident in the FIRs presented in this matter. I consider the FIRs in this case to have been fabricated. This, also, is not a problem that cannot rationally be explained in terms of Mr [A]’s claimed stress and depression.

114.   The previously-constituted Tribunal found the doctor’s note(s) “self-serving” and the FCC remitted his protection visa application to the Tribunal on the basis of such a finding being erroneous in law. My concern with the first doctor’s note is that what it says is not consistent with what Mr [A] claimed in his first and second statutory declarations, and his more recent claim about having been semi-conscious at the time of admission to the hospital does not help to resolve the discrepancy. I have considered this deficiency in Mr [A]’s evidence alongside my concerns about the claims regarding the day of the graduation ceremony, the TTP letters and the FIRs, all of which lead me to conclude that Mr [A] and his family were not targeted by the TTP as claimed. Even if the 2012 doctor’s note is genuine, I am not satisfied that Mr [A]’s injuries were nearly as severe as claimed, or that it adds to his position about the injuries having been inflicted by TTP agents. Even asking the question, “How else could Mr [A] have been injured on that day?” does not cause me to consider Mr [A]’s claims about the March 2012 attack to be more plausible. Overall, I give no weight in this matter to the purported doctor’s note dated March 2012.

115.   The problem with the second doctor’s note is that Mr [A] links it to events in July 2013 that strike me as inherently illogical: whereas he and the TTP purportedly came to an agreement that he would present for recruitment in the coming days or face serious harm for failing to do so, the TTP then inflicted serious harm on him and let him go, and all the way to Australia. There were additional incongruities in Mr [A]’s account of the kidnapping that I discussed earlier: his being in the bazaar whilst claiming at the hearing to have stayed home so that only his family knew he was in Pakistan; his also having visited his former Maulana whilst claiming to have stayed home so that only his family knew he was in Pakistan; his claiming in his statutory declaration to have stayed in an unknown location that turned out, in evidence at the hearing, to be his usual place of residence in Pakistan, and one from which he took trips to a mosque and the bazaar; the lack of any logical or consistent detail as to when and how Mr [A] would “come back” to the TTP after being released. Whether Mr [A] was truly injured and hospitalised in July 2013 or not, I give no weight to the doctor’s note of [date] July 2013 as it does not help overcome the many deficiencies in Mr [A]’s evidence about the alleged kidnapping and alleged assault. In addition, as noted, his evidence about events that followed his discharge from hospital are inconsistent.

116.   I give no weight to the July 2013 letter from the Maulana. I stop short of concluding that the Maulana was party to fabrication. Noting that Mr [A] persuaded him to write the letter in response to being shown a purported TTP letter and hearing Mr [A] talk about attempts to press him into recruitment, I can see that it is contemporaneous but, on the evidence I heard at hearing, the source of the information in the letter was apparently Mr [A] himself, and that information is very vague . For example, the TTP is not mentioned; in fact, the Maulana says nothing even generally about having encountered TTP interference at the madrassa first hand. Other letters of support present the same kind of vagueness, providing no detail as to how Mr [A]’s claims were independently verified.

117.   Mr [A] provided an unsatisfactory explanation as to why there is no detail about alleged attacks and other pressure on his father and family since 2013 or 2014. Whereas he said his father would not have wanted to add to his mental stress, it appears to me that to cease entirely from sending him material in support of his case, which was essentially rejected in 2014 and 2016, strikes me as illogical. I do not consider this to be a significant concern on its own, however, but I have given it some cumulative weight in this matter overall. Meanwhile, Mr [A] himself acknowledges that his elderly parents could have moved to [Country 3] other than for, or at least additional to, the reasons claimed in his protection visa application.

118.   Ms [B]’s evidence in this matter did not help overcome the problems in Mr [A]’s own claims and evidence.

119.   I have duly considered the psychological reporting in many of the submissions in this case. To the extent that Mr [A] has given an account to the psychologist that is largely consistent with his claims in this protection visa application those claims were not evidently tested by the psychologist, his specialised professional tasks being very different from the Tribunal’s. Hence I do not regard the psychologist’s reporting as material that independently corroborates Mr [A]’s factual claims. Having considered all of the expert psychological reporting and information about the effect of various medications prescribed to Mr [A], I am not satisfied that he was prevented from giving evidence by conditions or circumstances beyond his control. I find that his problems with consistency in his evidence are due to his own shortcomings as a witness in this matter and that these problems are reflected in much of the material he has presented. Whereas the psychologist appears to allow for the possibility that Mr [A]’s evident PTSD could stem from events in Pakistan, I am confident, having tested Mr [A]’s claim in this matter that his claims are to a very significant extent untrue.

120.   On the evidence discussed above, I am not satisfied that Mr [A] was targeted for recruitment by the TTP, or that his family was harassed due to his unwillingness to join the TTP, or that he would be targeted by the TTP or any other extremist groups in the reasonably foreseeable future.

121.   I am all the more confident in this overall finding because, in light of independent country information, I consider Mansehra an unlikely location for potentially significant TTP activity, including the kind described by Mr [A] in this case. As I put to Mr [A], there is strong evidence of substantial socio-political change in Pakistan having significantly weakened the TTP, with the government having taken back and even extended its control of KPK province and the former FATA region. When invited to comment on this potentially significant change in circumstances in Pakistan, Mr [A] merely said vaguely that his father continued to receive threats from the Taliban in connection with his own problem until moving to [Country 3] in 2018. Whereas Mr [A]’s advisor argues that the situation in Swat Valley district has not substantially improved since 2014, I have noted that Mr [A] is not from that part of KPK province, coming instead from Mansehra district. Meanwhile, recent country information indicates that the authorities have been effective in thwarting planned or potential terrorist activities in Mansehra.

122.   Having heard all of the evidence in this case, including Mr [A]’s claims about how holy and devout he is, and also about how his father believes he has talents as a social influencer, it strikes me as illogical that the TTP would pay so much attention to pressing for the recruitment of someone who clearly showed himself not to be interested in their socio-political project. The situation as described in these claims began and continued throughout all claimed events as one of mutual distrust, so much so that the claim about letting Mr [A] go in July 2013 on the promise of presenting for recruitment a few days later is so far-fetched as to be fanciful. Whereas Mr [A] talked about the TTP using “brainwashing” techniques to win over young recruits, his evidence to the effect that they would have expended time and resources trying to brainwash a hostile adult like him strikes me as far-fetched. Mr [A]’s use to the TTP would also have been diminished by the fact that, holy or not, he is not Pashtun and does not speak Pashto. Not only does he not belong to the TTP’s main demographic but he cannot communicate with it in its own language. This concern on its own is not enough reason to doubt that a person would volunteer to join the TTP or be the subject of some recruitment interest. However, whereas Mr [A] claims his holiness and persuasive powers might have made him attractive to TTP recruiters, there are also plenty of attributes that appear to make him a less desirable and attainable “catch”: his expressed resistance to TTP ideology; his lack of comprehension of Pashto, the first language of the majority of TTP members; his preference for secular study and residence abroad, making him a potentially risky recruit in terms of loyalty to the Taliban cause; his lack of trust of the TTP; and the lack of TTP influence on his upbringing overall.

123.   On the evidence before me, I am not satisfied that Mr [A] would be unable to reintegrate back into society in Mansehra. In view of my overall findings in this matter the issue of internal relocation is moot.

124.   Regarding effective state protection, I have heard evidence in this matter to the effect that the authorities in Pakistan are under-resourced even when they are not lazy, corrupt and unmotivated. As far as this matter is concerned, I give more weight to the independent evidence of the recent pre-emptive arrests in Mansehra. Furthermore, I acknowledge Australian courts having ruled that states presumably including Pakistan are not required to guarantee the safety of their citizens from harm caused by non-state persons.[18] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.[19]  Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.[20]

[18] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7,

[19] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

[20] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

125.   Having considered all of the evidence in this matter in its entirety, I am not satisfied that Mr [A] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.

126.   For the reasons given above, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(a). It follows that Ms [B], a “Part D” applicant in this case, is also not entitled to protection as a refugee.

Findings in relation to s.36(2)(aa) of the Act

127.   Having concluded that Mr [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

128.   A person is entitled to protection under s.36(2)(aa) if there are 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.

129.   Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

130.   "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

131.   Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

132.   Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

133.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

134.   As Mr [A] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.

135.   I find that the harm Mr [A] identifies in his complementary protection claims includes  “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

136.   Mr [A]’s claims to complementary protection are essentially the same as his refugee status claims. Since his refugee claims have failed on the basis of inconsistency and lack of credibility, and on the failure to meet the “real chance” test, they can no more succeed as complementary protection claims.

137.   To the extent that Mr [A] clams he will suffer significant harm returning to a country from which his immediate family has emigrated and which is far from the grave of his stillborn child, I am not satisfied that these difficulties rise to a level capable of being regarded as significant harm. The circumstances described also lack the element of “intention” to harm.   

138.   Having considered all of the evidence in this case, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that Mr [A] will suffer significant harm.

Other findings

139.   There is no suggestion that Mr [A] or Ms [B] satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they do not satisfy the criterion in s.36(2).

DECISION

140.   The Tribunal affirms the decision not to grant the applicants Protection visas.

Luke Hardy
Member

ATTACHMENT A

RELEVANT LAW

141. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

142.   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).

143.   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.

144.   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’).

145.   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

 Insurgents Share a Name, but Pursue Different Goals,” New York Times, 22 October 2009, v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah

was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.