1904101 (Refugee)

[2021] AATA 1547

1904101 (Refugee) [2021] AATA 1547 (5 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904101

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:5 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 05 May 2021 at 1:50pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – fear of harm from Taliban and police – employee of pharmaceutical company threatened into dealings with Taliban – harassment and threats to family since applicant’s departure – credibility – implausible and inconsistent claims and evidence – delay in applying for protection visa – voluntary travel to home country without harm – country information about religious-based politics and corporate corruption – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (aa), (2B), 65, 424AA

Migration Regulations 1994 (Cth),

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

MIMA v Rajalingam (1999) 93 FCR 220

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Sun v MIBP [2016] FCAFC 52

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 dependants.

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 on 4 February 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, [the first applicant], his wife and their daughter, are all citizens of Pakistan. They arrived in Australia [in] March 2012 on [the applicant]’s student visa, issued in Pakistan on 5 March 2012. [The applicant] returned voluntarily to Pakistan [in] February 2014, apparently during a college term break, and re-entered Australia [in] March 2014. He and his family lodged a protection visa application on 10 July 2014.

3. [The applicant] and his wife also have a [child] who was born in Australia. [She/He] is not included in the present application.

4. The claims in this case all relate to events arising from [the applicant]’s employment with the pharmaceutical company [Company] in Pakistan, and how this led to his being put under pressure by parties including the Pakistani Taliban (TTP) and Pakistani police.

5. The delegate refused to grant the visas largely on credibility grounds. The applicants the sought merits review by this Tribunal, differently constituted. That Tribunal affirmed the delegate’s decision on credibility grounds. That Tribunal’s decision was set aside by the Federal Circuit Court [in] January 2019. A summary of the judgment is as follows:

   The Tribunal fell into jurisdictional error because the information in question was not simply about a class of persons, including the applicant, namely employees of [Company]. It was information about a person, [Company]. The information described in detail the way in which the corporation conducted its business. That information went directly to the credibility of the applicant’s claims concerning his employment and should have been disclosed by the Tribunal to the applicant either in writing, in accordance with s.424A or orally, in accordance with s.424AA, but it was not.

6. The matter is now before me as the presently-constituted Tribunal pursuant to an order of the Court. It is not readily clear to me from the judgment how [Company] came to be regarded as a person, given that the information in contention was evidently about a company and its practices regarding a class of persons who were their managers and staff. However, it is not for me to quibble about this.

7. I invited the applicants to a fresh oral hearing of this matter, not least to put the information to them under the protocols of s.424AA and to provide them with an opportunity to comment and/or respond.

8. [The applicant] attended a hearing before me on 28 April 2021 to give oral evidence and present arguments. His wife and daughter, who are evidently relying on [the applicant]’s claims about himself, declined to attend the hearing. The applicants are unrepresented. The hearing was facilitated by an interpreter in the Urdu-English medium.

9. At the outset, I advised [the applicant] that the evidence he had given the previously-constituted Tribunal was evidence to which I am entitled to have regard. An exception would be [the applicant]’s comments and responses to information put to him that, as the court found, should have been put to him “either in writing, in accordance with s.424A or orally, in accordance with s.424AA, which it was not.”

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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).

12. 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.

13. 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’).

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

15. The main issue in this case is whether, on accepted evidence, any of the applicants are entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. 

16. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims

17. Having reviewed the applicants’ files and having heard [the applicant]’s evidence at the hearing before me, and in the interest of providing a concise and accurate background to this case, I consider it appropriate and convenient to cite the previously-constituted Tribunal’s summary of [the applicant]’s claims, ensuring not to incorporate any of that Tribunal’s inferences, conclusions or findings:

    Background

    2.     The applicants are husband, wife and their infant daughter. They are citizens of Pakistan. The first named applicant (the applicant) and the second named applicant (the applicant wife) arrived in Australia [in] March 2012. The third named applicant (the applicant daughter) was born in Australia on [Date]. They applied for Protection visas on 10 July 2014.

    3.     Only the applicant has made specific claims for protection. His wife and child are relying on their membership of his family.

    Evidence before the Department

    Protection Visa Application

    4.     In his application for a protection visa and a statement attached to his application form, the applicant made the following claims.

    5.     He resided in [Town], North Karachi with his family. His mother owned a suc[c]essful [business], which she operated from home. His father and some of his sibl[i]ngs assisted his mother with the running of the business. While the applicant was studying at a college in [Suburb 1], he was offered a job as a ‘medical representative’ at a company called [Company].

    6.     The applicant’s parents are originally from Bangalore, India and are considered as Mo[h]ajirs. The Mohajirs support the MQM Party.

    7.     [Town] became a dangerous area after Afghan Pathans arrived in large numbers as refugees and settled in the area. The Pathans are Pashtun speaking people and are supporters of Taliban, Al Qaeda and other terrorist organisations in Pakistan. The Taliban wanted the Mohajirs to support them. However, the Mohajirs openly condemned the Taliban and some MQM ‘cadres’ worked against the Taliban. As a result, targeted killing of MQM members became frequent. In addition, the Taliban abducted Pakistani Muslim youth and trained them as militants to fight the US, the UN and the Pakistani army. With the establishment of Therik-e-Taliban Pakistan (TTP), militant recruitment activities increased and the TTP moved to other parts of Pakistan, including Karachi.

    8.     The applicant’s work required him to travel to Baluchistan, Quetta and Peshawar. He tra[v]elled with his manager and stayed at ‘private residences known to the company’. They sold ‘medications and equipment for [patients] to private companies and private hospitals and surgeries’ (sic). The North West Frontier Province and Baluchistan were in need of these supplies as these areas were controlled by the Taliban and access was dangerous. The applicant readily volunteered to travel to these areas as he was paid a commission on top of his salary. When supplying the company’s products he used transportation arranged by the company. However, he travelled by bus when he needed to ‘collect the money owed to the company’.

    9.     In October 2010, the applicant’s manager, [Mr A], was abducted from a private res[i]dence where they were both staying. When he tried to stop the abductors, he was ‘ba[s]hed’ by three militants. When he reported the incident to his employers on the following day, he was ordered to return to Karachi immediately. In Karachi, he was told that [Mr A] was involved in ‘illegal drug transactions with the TTP’ and had ‘failed to pay the money that he owed the TTP’. He was told to keep the matter a ‘secret’. He became worried but the company advised him that he could continue doing his job without any fear as he was never involved in ‘illicit drug dealing’ with the TTP.

    10.   Eventually, the company paid a sum of money to secure [Mr A]’s release. After his release, [Mr A] fled Pakistan. Before his departure, however, he met with the applicant and his father and told them that he had been tortured for not paying TTP’s money on time and for refusing to travel to Afghanistan ‘to collect drugs from Taliban estates’. He warned the applicant to be careful when dealing with the owners of the company as they had ‘direct dealings with the TTP’. [Mr A] 's parents also told the applicant that the company was dealing in illicit drugs. The applicant’s father subsequently spoke to the owners of the company and they gave their assurance that the applicant would not be involved like [Mr A] was. The owners spoke to the applicant personally to guarantee his safety during his travels to Baluchistan, Quetta and North West Frontier Province. They told him that they would order the TTP militants to stay away from him.

    11.   In February 2011, a day before he was due to travel to Baluchistan, the applicant was at the mosque when a group of men ordered him to speak to the Mullah. The applicant was asked by the Mullah to continue [Mr A]’s work. He told the applicant that the company’s owners had asked the Mullah to speak to the applicant to seek his agreement, as the company was working ‘under the orders of the TTP’. The TTP had also asked the Mullah to encourage the applicant to ‘take up’ what [Mr A] was doing. The Mullah told the applicant that he had to travel with his men to Baluchistan, Quetta and NWFP and they will look after his safety. He was told that these men were TTP militants who would take him to ‘Afghan drug agents who would pay him good commission for [his] job’. Fearing being abducted, the applicant agreed. His family advised him to leave the country immediately and they began making arrangements to send him overseas permanently.

    12.   The applicant ‘continued to work and travelled with these men the following day and sold the items as planned’. In ‘the latter part of March 2011’, the men took him to the Afghan border, where he met with a ‘few agents’, who checked his identity documents and entered his details into their laptop. He was advised to go along with them to Afghanistan ‘to check their accounts’. He told them that he ‘would visit Afghanistan during [his] next trip’. They let him go and when he returned home, he asked his employers to permit him to make arrangements for his wedding ‘for couple of months’ and they agreed. In the meantime, his father sent him to [Country 1] until ‘the travel agent arranged the visa for him to travel overseas’.

    13.   In [Country 1], his visa ‘was not extended’ and he had to return to Pakistan in June 2011. Upon his return, he was told by his father that the Mullah wanted to meet him and if he ‘failed, [he] could be taken away permanently’. When he met the Mullah, he told the clergyman that he will work for him after his marriage, which had been arranged by the applicant’s family. The Mullah responded that his men were watching him and that they planned to send him to Afghanistan ‘to do a deal with the drug lords. He said he needed someone who is good at numbers and that they needed his assistance in the future’.

    14.   The applicant married his wife [in] November 2011 and, with the help of an agent, applied for a student visa to travel to Australia. The applicant was told by his employers that he had to travel to Baluchistan if he wished to continue his work.

    15.   In January 2012, the applicant travelled to Baluchistan on his own to urgently deliver ‘medication’ to the hospital. His employers told him that they would not be responsible if he was caught by TTP militants. He suspected ‘foul play’ and decided to hide at a place ‘close to our house’. The applicant’s father told the Mullah that the applicant had failed to return from Baluchistan and that he was concerned about his safety. His father was shocked when the police took him to the police station and interrogated him as to the applicant’s whereabouts. The officers told the applicant’s father that the company owners and the Mullah were prepared to testify that the applicant was involved ‘in illicit drugs’ along with [Mr A]. It was clear that the Mullah, the police officers and the applicant’s employers were working together with the TTP and were trying to force him to take up ‘the assignment of dealing with the drug lords in Afghanistan personally’.

    16.   The applicant remained in hiding until he was able to flee Pakistan for Australia. The Mullah and his men continued to visit the applicant’s house, asking whether he had returned. The police warned his father that they would not be able to assist him in the future as he had ‘direct dealing with the TTP militants and that they had no power to act against their orders’.

    17.   After a while the Mullah ‘stopped pestering’ the applicant’s father. The applicant’s wife's parents are in [Country 2] and they advised him not to lodge a protection visa as his wife would not be able to return home in the future and she would not be able to visit them in [Country 2].

    18.   After his daughter was born in Australia, his parents and his in-laws ‘forced’ him to send his wife back to Pakistan so that the relatives could ‘look after’ his wife and his daughter. His wife also started to ‘pester’ him to send back to Pakistan.

    19.   In October 2013, the applicant wife returned to Pakistan and stayed with his family members. The local Mullah was transferred to another district and the police officers never came back to search for him. He was homesick and when his father told him that they all wished to see him, he returned to Pakistan in February 2014.

    20.   A week later, his family decided to arrange ‘a party’ for the neighbours and relatives to see the applicant’s baby daughter. At the party, the new local Mullah visited the house to bless his daughter.  Two days later, the Mullah asked the applicant to visit him to speak about donations to the mosque. Fearing TTP militants, the applicant told the mullah that he was sick and could not visit.  A few days later, the Mullah contacted the applicant’s father and told him that he was aware of the applicant’s involvement with [Mr A] and that he would not be permitted to leave the country without his permission. The applicant immediately went into hiding and then left Pakistan for [Country 2] ‘to spend few days with my wife's parents who wished to see my baby’. His father-in-law did not like the applicant applying for a protection visa in Australia as the applicant and his wife would not have been able to visit in the near future. He also told the applicant that he would arrange a permanent job for him in [Country 2].

    21.   While he was in [Country 2], he heard that the police had visited his house to arrest and hand him over to the TTP. While his father wanted him to apply for protection, his father-in-law advised him not to do. He waited until his father-in-law told him that he could not find him a job in [Country 2]. TTP militants and the Mullah visited the applicant’s house and told his family members that they would not see him again if he returned to Pakistan. His father had to pay the mosque thousands of Rupees for deceiving the Mullah.

    22.   In his statement, the applicant referred to a number of news articles and reports, dating back to August 2013, November 2014 and February 2014, relating to the execution of 23 Pakistani soldiers and the collapse of peace talks between the Taliban and the Pakistani government; the assassination of a Pakistani doctor in Karachi; the convicted killer of Daniel Pearl attempting suicide in prison; a grenade attack on a cinema showing pornographic movies in Peshawar; an explosion targeting a bus carrying policemen in Karachi; US cutting back on drone strikes in Pakistan; Taliban vowing revenge after the their leader was killed by a drone attack; the disappearance of an anti-drone activist; and the US warning Americans not to travel to Pakistan and evacuating government personnel from Lahore.

    23.   The applicant also submitted a number of news reports relating to a Taliban attack on Karachi International Airport in June 2014; a copy of South Asia Terrorism Portal’s Pakistan Assessment 2014; news reports in relation to Pakistanis’ attitudes towards terrorism and the Taliban in 2014; an article linking the TTP to the CIA and an NGO report in relation to recruitment of children by armed groups in Pakistan.

    Protection Visa Interview

    24.   The applicant was interviewed by a delegate of the Minister on 28 January 2015. Where relevant the applicant’s oral evidence to the delegate is discussed below.

    The Delegate’s Decision

    25.   The delegate refused to grant the visas on 4 February 2015. The delegate did not find the applicant to be a credible witness. The delegate did not accept that the applicant was an employee of [Company] and that he had travelled extensively through Pakistan. The delegate did not accept the remainder of the applicant’s claims flowing from these claims.

    Application for Review

    26.   The applicant applied for a review of the delegate’s decision.

    27.   The applicants appeared before the Tribunal on 7 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

    28.   At the hearing, the applicant submitted the following documents:

    ·Copy of an offer of employment to the applicant by [Company], dated [June] 2008. The offer is for the position of ‘Territory Manager – [Territory]’. The letter sets out the terms and conditions for the applicant’s employment, including salary and leave.

    ·Copy of a letter from the Director of IT, Human Resources and Administration, [Company], to the applicant, dated [May] 2011, advising him of an adjustment in his salary.

    ·Copy of a payslip for July 2011, containing the applicant’s name, position, bank details and salary components paid into his account.

    ·Copy of a certificate issued to the applicant by [Company] for completing a ‘New Induction Training’ in January 2010 in Karachi.

    ·Copy of a certificate issued to the applicant by [Company] for completing ‘Sales Excellence Training ‘ in August 2009.

    ...

    36.   … According to this evidence and the applicant’s oral evidence at the hearing, he remained in the same position within the company until January 2012. At the hearing, with regard to sales management hierarchy and reporting lines in [Company], the applicant explained that Territory Managers report to an Assistant Sales Manager, who reports to a Sales Manager. He explained that each Sales Manager manages 3-5 Assistant Sales Managers and each Assistant Sales Manager manages 5-6 Territory Managers; and that the country was divided into three regions and 9 zones.

    37.   At the hearing, the applicant was asked about his role specifically. He stated that, as Territory Manager or a ‘field person’, he was in charge of pharmaceutical sales in a specific area. When asked what area he had managed, he said sometimes Karachi (in Sindh Province), sometimes (Province of) Baluchistan and sometimes Peshawar (in Khyber Pakhtunkhwa Province). He was then asked, if he was in charge of one area, why he was working across three provinces. He responded that he did not initially understand this. He first worked in the Karachi area, but then he was asked to work in the other provinces and he thought working in these areas would earn him a good commission.

    38.   As it was put to the applicant at the hearing, consistently with his evidence, most of the companies in Pakistan, including [Company], have divided Pakistan into 3 regions and 9 Zones/Area/Territories. They have one Regional Sales Manager responsible for each region, and one Zonal/Area/Territory Sales Manager under them. On an average, each Area Manager is responsible for managing 6-10 representatives, who have their own well demarcated territories.[1] The applicant was again asked why, given his junior sales position, he was required to work across three provinces soon after he had commenced work in the company. He responded that, initially in 2008-2009, he was working within demarcated zones and structures in Karachi. Then his Assistant Sales Manager, [Mr A], offered him more money if he travelled to the other regions. When the Tribunal asked him what the Sales Manager had thought about this arrangement, he said he did not know as he did not have a direct link to the Sales Manager.

    [1] Raheem, AR and, Irfan, S, Distribution Channels in Pakistani Pharmaceutical Industry, European Journal of Scientific Research, Vol. 38, No 4, 2009.

    39.   As it was put to the applicant at the hearing, in 2010, more than [Number] people were working in the sales and marketing departments of [Company], making the company one of the largest pharmaceutical companies in terms of human resources in sales and marketing.[2] [The previously-constituted Tribunal put to [the applicant] that this evidence potentially cast doubt on his] claims that the company was in need of volunteers, such as him, to sell its products in Baluchistan and Khyber Pukhtunkhwa (formerly NWFP). The applicant responded that he was working ‘normal’ before, but [Mr A] told him that he will get more money …

    [2] [Author], About [Company] (internal publication), 19 December 2010, [Reference deleted]

    40.   … in his written statement, the applicant had claimed that he used transportation arranged by the company to supply the company’s products. He also stated that he had travelled by bus when he needed to ‘collect the money owed to the company’. At the hearing, the applicant was asked about the logistics of delivery of [Company] products and payment processes. He stated that the company organised a van and a driver for him. He went to different locations to deliver supplies and, occasionally, he carried small batches of medicine with him. When asked where he had collected the supplies from, he said sometimes the company van delivered the products and sometimes [Mr A] brought them with him from the factory in Karachi. With regard to payments, he stated that payment was made to him directly by cash, [cheque] and, mostly, by way of credit. He added that, sometimes, he had to go back to collect payment because he was the person responsible for delivery. When asked how he had handled the cash or the cheques, he said he carried them in his pocket or in his socks and travelled by bus to deliver the payments to his manager.

    41.   As it was put to the applicant at the hearing, the pharmaceutical industry in Pakistan is one of the most organised industries in Pakistan and pharmaceutical selling is a highly specialised function.[3] In addition, [Company] is associated with [a] distribution company in Pakistan, with an extensive distribution [network].[4] According to [the distributer’s] website, the company has a strong liaison with institutions, government and local hospitals, clinics and pharmacies across Pakistan in relation to its distribution and logistics services.[5] In response to this information, the applicant acknowledged that [the distributor] would have been responsible for logistics and delivery of [Company] products. However, he stated that, for bigger purchasers such as hospitals, this arrangement did not apply because of ‘discounts’. He said he was offering more discounts and securing more sales, which meant that hospitals did not have to pay money to [the distributor].

    [3] Raheem & Irfan, n1, above.

    [4] See [Authors], [Company], Online Presentation, [Reference deleted]; Company Overview, [Company] website, [Reference deleted].

    [5] [Deleted].

    42.   [Here the previously-constituted Tribunal discussed its own observations on [the applicant]’s evidence about the owners of [Company], the local Mullah and the TTP, with the support of the police, being involved in a conspiracy to forcefully recruit him to import illicit drugs from Afghanistan. I must make my own individual assessment of that evidence.]

    43.   In his evidence, the applicant has claimed that [Mr A] was involved in ‘illegal drug transactions with the TTP’. At the hearing he stated that [Mr A] was buying illicit drugs, such as hashish and cannabis, from the TTP to supply in Karachi. He claimed that [Mr A] was eventually abducted after he failed to repay the TTP. In his written statement the applicant claimed that, in February 2011, he was approached by the local Mullah, who asked him to continue [Mr A]’s activities. He was told that he had to accompany TTP militants to Baluchistan and Khyber Pakhtunkhwa in order to meet ‘Afghan drug agents’. At the hearing, the applicant stated that the Mullah wanted him to go Afghanistan, meet with people, check the accounts and bring drugs to sell. The applicant, however, [appeared] unable to offer a meaningful or persuasive reason as to why he had been singled out to engage in this activity for or on behalf of the TTP. As it was put to him at the hearing, he came from a moderate Muslim family, he was not known to the TTP previously and the TTP had no reason to believe that he would be loyal to the organisation. The applicant responded that he was travelling to these places with [Mr A], he was [age] and they thought he knew about this work. When it was put to  him again that the TTP or the local Mullah had no reason to trust him with this type of illegal and unusual work, he said they wanted to assign a person to him to watch him at all times. As it was put to the applicant, the TTP is a ruthless organisation with alleged sophisticated involvement in the drug trade.[6] The applicant responded that they needed young people. When it was put to him that it would be reasonable to assume that the TTP has many young loyal followers, he repeated that he was young, he was travelling to sell pharmaceutical and he provided a good disguise as a pharmaceuticals sales representative…

    44.   … in his statement the applicant had claimed that, in March 2011, he was taken to the Afghan border, where he met with a ‘few agents’, who asked him to accompany them to Afghanistan ‘to check their accounts’. He told them that he ‘would visit Afghanistan during [his] next trip’. At the hearing the applicant stated that the local Mullah wanted him to go to Afghanistan, meet with people, check the ‘accounts’ and bring drugs to sell. When asked what ‘accounts’ he had to check, he said the Mullah wanted him to check the accounts to see how much they were earning. When asked why he would be given this … task, he stated that it was a ‘trick’ and that the Mullah wanted him to bring drugs from Afghanistan ...

    45.   … At the hearing, the applicant was asked what had made him believe that the [Company] or its owners were working under the orders of the TTP. He responded that they pushed him to go and work. He also questioned the company’s rapid growth since 1995. He added that he was told by the local Mullah that the company had asked the Mullah to ask him (the applicant) to do this work …

    46.   … In his statement the applicant claimed that, in March 2011, when he was asked to travel to Afghanistan with a ‘few agents’, he told them that he ‘would visit Afghanistan during [his] next trip’. They let him go, he returned home and his father sent him to [Country 1] until ‘the travel agent arranged the visa for him to travel overseas’. At the hearing, the applicant was asked, if he was specifically ordered to go Afghanistan, why the agents or the people accompanying him had agreed to let him return home without completing his mission. He responded that he had convinced them with great difficulty...

    47.   The applicant further stated that, following his claimed mission in March 2011, he returned to Karachi and went into hiding because he was going to be in big trouble. He then travelled to [Country 1] in May 2011. He stated at the hearing that he stayed in [Country 1] for three or four days and then he had to leave because his visa expired.

    48.   The applicant provided the Tribunal with his passport at the hearing. As it was put to him, the visa entries in his passport indicate that his [Country 1] tourist visa was valid for a period two months from the date of entry (29 May 2011). He responded that his agent had told his father that his visa expired on 6 June 2011, so he returned to Pakistan. He also explained that his mind was not working at that time ...

    49.   In his statement the applicant claimed that, after he returned from [Country 1], the Mullah told him that he had to work for him after his (the applicant’s) marriage in November 2011. When asked why nothing had happened to him during this period and until January 2012, he stated that these people thought that [Mr A] had told him something. They were not acting in a cruel way towards him in order to find out what he knew. Eventually, when they were frustrated, he was ordered to travel to Baluchistan in January 2012 to do a deal with the drug lords. In his statement the applicant had claimed that he travelled to Baluchistan on his own to deliver ‘medication’ to a hospital. When his employers told him that they would not be responsible if he was caught by TTP militants, he suspected ‘foul play’ and decided to hide at a place close to his house. At the hearing, however, he stated that he had not travelled to Baluchistan in January 2011. He said he was on board a bus on his way to Baluchistan, but he disembarked somewhere in Sindh and returned home. When the [apparent] inconsistency in his evidence was put to him, he said he did not put all the details in his statement and maybe he had said that he went and he came back ...

    50.   Fourthly, the applicant arrived in Australia in March 2012. However, he did not apply for a protection visa until 10 July 2014. In his evidence, the applicant claimed that, before travelling to Australia, he resided with his father’s friend for a period of six to eight weeks. He then escaped to Australia because he feared being arrested by the police and being harmed by the Mullah and the TTP. In his statement the applicant had claimed that his father-in-law did not like the applicant applying for a protection visa in Australia as the applicant and his wife would not be able to visit in the near future. He also told the applicant that he would arrange a permanent job for him in [Country 2]. At the hearing the applicant stated that he wanted to apply for a protection visa, but, out of respect for his father-in-law, he decided not to do so. His father also told him that the situation might change ...

    51.   [The previously-constituted Tribunal raised concerns with [the applicant] about] his decision to return to Pakistan in February 2014, remaining for 12 days. In his statement, the applicant stated that, after his daughter was born in Australia, his parents and his in-laws ‘forced’ him to send his wife back to Pakistan so that the relatives could ‘look after’ his wife and his daughter. His wife and child travelled to Pakistan in October 2013. He was homesick and, when his father told him that they all wished to see him, he decided to travel to Pakistan in February 2014. His father had told him that the local Mullah was transferred to another district and the police officers had not returned to search for him. A week later, his family decided to arrange ‘a party’ for the neighbours and relatives to see the applicant’s baby daughter. Soon after, the applicant was threatened by the newly appointed local Mullah that he would not be permitted to leave. When asked at the hearing why he had decided to return to Pakistan in February 2014, he repeated that his father had told him that nobody was looking for him and the Mullah had left. When he was threatened again, he travelled to [Country 2] and tried to find a job. When he failed, he returned to Australia and applied for protection. As it was put to the applicant at the hearing, despite his claimed experience in Pakistan during his visit to Pakistan, he returned to Australia in March 2014 but he did not apply for protection until July 2014 ...

    [6] See, for example, Ahmed, D, Heroin and Extremism in Pakistan, Foreign Policy, 17 August 2015, Referring to US officials, Ahmed stated ‘there is “logical evidence” that TTP supports, and profits from, the flow of drugs through its territory. In fact, the drug trade is the Taliban’s single biggest stream of revenue. By negotiating with drug smugglers and placing taxes on narcotics at the border, the Taliban receive a part of the profit without having to manufacture or transport the drugs themselves. In 2009 alone, the Taliban’s estimated annual income from the drug trade was between $100-300 million.’ See also, Myers, C, Insurgency, Terrorism and the Drug Trade, International Institute for Counter-Terrorism (ICT), 31 October 2013,

1. The information that the court found had been put unfairly to [the applicant] appears in the quoted paragraphs 39, 39 and 41. I have not omitted [the applicant]’s responses to the previously-constituted Tribunal as he told me that he understood the particulars of the information at the time, and addressed it to the extent that his understanding, at that time, of his past experiences in Pakistan enabled him. I gave him plenty of opportunity to say that he had not understood what the previously-constituted Tribunal had put to him and he assured me that this was not the case. As shown below, I nevertheless followed what the Court has required the Tribunal to do and gave [the applicant] a fresh opportunity to comment and/or respond to the information under the protocols of s.424AA of the Act..

2. Meanwhile, by way of providing some potentially helpful detail, [the applicant] told me that the “Sales Manager” mentioned at the end of paragraph 39 above was named [Mr B].

   Evidence submitted to the presently-constituted Tribunal

3. The Tribunal received a 21 January 2020 submission from [the applicant] through his adviser:

   Additional Evidence in relation to my appeal to AAT Case number: 1904101

   I refer to the above matter and to your letter to me dated 27 September 2019 where you requested me to provide any additional evidence that is relevant to my application for protection visa.

   I wish to provide the following recent information that I received from my father which are relevant to my claims.

   The local Mullah contacted my father around October 2019, asking him to attend to a meeting at his residence to discuss about his and my involvement with [Mr A] in the past. The Mullah told my father that [Mr A] had retuned back to Pakistan and [was] working for them. He wants me to come back to Pakistan and join them and that they would protect me. [Mr A] and I had been accused of embezzlement of TTP and my [Company]’s money, which was used to fund the MQM. The TTP militants and my company found out that they couldn’t account for many Lakhs of Pakistani rupees, which should have gone into wrong hands. Now they have found that [Mr A] and I had been involved in working for MQM without the knowledge of the company or the TTP. They accused my father for encouraging me to earn money for the MQM through the company. My father told the Mullah that I would never return to Pakistan in the future. Within a short while, the police officers arrived at the house and arrested my father and remanded him till he agreed to give details of the amount paid to the MQM. At the police station, the TTP militant beat my father asking him where I was. Within days when the MQM members demanded my father’s release and threatened to protest for my father’s release, the police released my father and the MQM members took my father home. After a week the TTP abducted my father from home and took him to Baluchistan and forced him to accept that [Mr A], my father and I had been giving large amount of money to the MQM, which belonged to them. The TTP militants told my father they paid the money to [Mr A] and I, to be taken to the company so that the company continued to do business with them. The TTP militants said that [Mr A] agreed that he paid money to MQM and that he would compensate.

   The TTP militants starved and tortured my father and asked him to tell them what I did with their money. My father told them that I [was] never involved in illicit drug dealings and […] paid all the money to the company. My father told them that [Mr A] told us that he along with the company proprietors involved with the TTP militants in drug trafficking and that was the reason I fled from Pakistan. He told them that I feared to involve [myself] in the drug business and fled from the country. The TTP demanded my father to work for them in transporting illicit drugs from Afghanistan for sending me out of Pakistan. They came forward to pay commission for his work but my father refused to oblige and they kept my father for nearly three weeks. After my mother threatened to bring the Mullah to Courts for my father’s disappearance and for his involvement in illicit drugs with the TTP and the company, the Mullah came forward to release him on the condition that my mother paid to the Mullah the demanded money and further she should maintain [her] silence as to their drug business and if she failed, the TTP militants would shoot and kill all my family members. They further said that I had been involved in taking money to the company and had been embezzling money little by little and had cheated both the company and them. They said that I promised to travel with them to bring illicit drugs from Afghanistan but managed to escape from them. They said that the company asked them to kill me if I returned back to Pakistan as they are concerned that I could be witness for their illicit drug transactions.

   I wish to comment on the decision of the member of the AAT who interviewed me.

   The AAT member repeatedly mentioned in the decision record that my company like other companies have regional sales managers responsible for each region and that there is no reason for my company [Company] to appoint me to travel to deliver medications and equipment to the other companies in Baluchistan, Quetta and Peshawar when the company could have used their regional sales managers to deliver them. Please note that I had already stated in my statement of claims that:

   “When [Mr A] was released, and before he fled from Pakistan I went with my father to meet him and he told us that he was tortured for not paying their money on time and for refusing to travel to Afghanistan to collect drugs from Taliban estates. He warned that I had to be careful dealing with the company proprietors as they had dealing with the TTP and earning good money from them”.

   I decided to flee from Pakistan after hearing the above information [Mr A] told me. The Member of the AAT failed to note that the company would not and could not appoint any one from the company branches situated in other parts of Pakistan including Baluchistan, Peshawar and Quetta. As I was eager to earn more money to assist my family financially and when the company proposed to pay me more money as commission, I agreed to travel to the above dangerous areas without having a clue that the company was involved in drug trafficking along with the TTP. Further I was under the supervision of [Mr A] and was confident that I could be protected by him. When [Mr A] was arrested and released, I came to know from him that the company was involved with TTP in drug trafficking. This is the reason why I decided to flee from the country. The AAT member should have taken into consideration the above facts before rejecting me on the grounds that the “company was not in need of volunteers, such as him, to sell its products in Baluchistan, Khyber Pukhtunkhwa (formerly NWFP).” The findings of the AAT and the reasons given for rejection in the decision record are flawed.

   The AAT states in its decision record:

   “At the hearing the applicant was asked about the logistics of delivery of [Company] products and payment processes. He stated that the company organised a van and a driver for him. He went to different locations to deliver supplies, and occasionally, he carried small batches of medicine with him. When asked where he collected the supplies from, he said sometimes the company van delivered the products and sometimes [Mr A] brought them with him from the factory in Karachi. With regards to payments, he stated that payment was made to him directly by cash, cheque and, mostly by way of credit. He added that sometimes he had to go back to collect payment because he was the person responsible for delivery. When asked how he had handled the cash or the cheques, he said he carried them in his pocket or in his socks and travelled by bus to deliver the payments to his manager”.

   The AAT failed to note following facts when considering my claims:

   I was mostly responsible for collecting money for the company and was not delivering large amount of medications and equipment. Till [Mr A] advised my father and I about the Company, I couldn’t understand why the company needed me to collect the money from the customers who are mostly third persons working in institutions. They medications and equipment were delivered by the company or [Mr A] delivered them. I was only there to collect the money for the consignments. Please note that I carried small batches of medicine. These medications were collected by private individuals, waiting outside the medical centres or hospitals. When I called the company they wanted me to deliver those and to collect the money. I was surprised that the amount I was carrying was worth more than the small batches of medicines.  Whenever the company proprietor failed to collect the correct full amount, he sent me back to collect them and I met with some individual who gave me the money. Overall I was used to collect money as the company was convinced that I was genuine and was eager to earn the commission. I could understand only after [Mr A]’s advice, that the company was dealing with drugs and were using the TTP to pay the money to me. The company couldn’t find another employee who agreed to do work for commission as I did. May be those employees are aware of the companies [sic] involvement with the TTP in those areas where I visited. [Mr A] had failed to pay the money due and was abducted whereas I never cheated anyone.

   The AAT failed to note that I was used by the company to directly deal with the TTP in smuggling drugs and to establish a successful business therefrom. If I had known that the commission was paid for me to involve in drug transportation, I could have left the company earlier. I was never asked to bring any drugs or consignment from those remote areas whereas [Mr A] said that he was in charge of bringing the drugs to the company. The AAT was not ready and willing to accept the claims but failed to give any valid reason for its rejection.

   In relation to my involvement in the MQM, my family members supported the MQM as they protected us from the Taliban and TTP which were targeting us and trying to recruit us to fight the Pakistani army. My father was always supporting MQM as we feel that we had been discriminated by the central government as we belong to a special social group.  MQM members were targeted daily by the TTP militants and we had to protect ourselves from these terrorists. When my father told me recently I understood the reason why the Mullah wanted me to join them and involve in drug trafficking. My father said that many MQM members had been taken away by the TTP after they involved in drug trafficking for huge amount of commission. The company known that I belong to MQM connived along with the TTP to involve me in drug so that I could end up as a TTP militant. The TTP militants are mostly Pakistani youths who oppose the USA and UN forces stationed in Pakistan. The TTP was determined to recruit many youths as possible so that they could attack the USA, UN and Pakistani army to take control of the country themselves. I am lucky to have escaped from the grips of the TTP and Mullah who were determined to recruit me like other MQM youths.

   [bold type in the original]

4. In this 2020  version of events, [Mr A] is averse to [Company]’s alleged dealings in illicit drugs with the TTP, although later reported to be back in Pakistan and working with the TTP himself, whereas in the original statement from [the applicant], [Mr A] was evidently willingly involved in the TTP drug trade, albeit to exploit it for his own gain, for some time. In addition, in this account, [the applicant] mentions for the first time that [Mr A] was accused of working for the MQM; this is a new claim, not previously made, as in previous accounts, [Mr A] was merely accused of siphoning profits for himself. These are all quite different narratives from those given by [the applicant] to the previously-constituted Tribunal.

5. In this 2020 version of events, [the applicant] makes an entirely new claim about having been accused of embezzling [Company]’s income and channelling it to the MQM party with which, he appeared to assert, his family had some influence and close involvement, going by the account of the MQM demanding and securing his father’s release from police custody.

6. Reading this submission, I was struck by certain facts that seemed to me to be somewhat far-fetched, relating to what [Company] did when contacts failed to pay for the illicit drugs that it was trafficking under cover of [the applicant]’s seemingly innocent and unknowing delivery service: in what seemed like an implausible means of enforcing an illicit drug deal, the company would just re-send [the applicant], who did not know what he was doing, to ask for the extra money; this seemed to me a far-fetched method of putting pressure on defaulting drug clients, particularly when the amounts of money involved were far out of proportion with what [the applicant] said he expected, in a legitimate business, to be collecting.

7. I was also perturbed by [the applicant]’s explanation for being chosen and retained as long as he was to do this allegedly illicit work: he said that [Company] could not find another employee who agreed to do work for commission as I did. This claim struck me as being hard to accept in the detail provided, as it suggested insights into the inner workings of [Company] management that [the applicant] claims never to have had, much, he claims, to his eventual detriment. Also, given abundant reporting of competition for jobs in Pakistan, it struck me as being somewhat far-fetched that corrupt company directors would have only one junior staffer prepared wo work for commission, and have no choice but to rely on him.

   Evidence given at the presently-constituted Tribunal’s hearing

8. [The applicant] told me at the hearing that when he first started working for [Company] in June 2008 he was assigned to deliver pharmaceutical orders to medical facilities in Karachi’s Lyari district. This struck me as an interesting claim because, around the time [the applicant] was working for [Company], Lyari district was notorious for being the stronghold of criminal affiliates of the MQM’s main political rivals, the PPP (e.g., groups like the PAC; see Other Independent Country Information below).

9. Lyari has been described as a “sleepy lower income area of Karachi”[7] and, more significantly, as a “no-go area” for citizens and visitors in Karachi.[8] It would certainly have been a “no-go area” for a Mohajir from an MQM-supporting family. However, I not from Google Maps that the Lyari General Hospital, along with other medical facilities with Lyari in their name, lie just outside what appear to be the notional boundaries of the “no-go area.” In this light, it does not strikes me as significant that [the applicant] had dealings with facilities in the environs of Lyari.

   [7] “Gangs of Lyari: Brutal tales of violence from Karachi’s ‘wild west’,” Hindustan Times, 18 April 2016,

   [8] “Lyari, Karachi's ‘no-go area’,” Peace Insight, 24 October 2011, Lyari, Karachi's ‘no-go area’ — Peace Insight

10. Early in the hearing, I asked [the applicant] if he could bring the Tribunal up to date with the circumstances of his immediate family in Pakistan since the last time he gave evidence about them (to the previously-constituted Tribunal) on 7 September 2016.

11. [The applicant], now [Age] years old, told me his parents are both alive and doing “nothing,” his father having retired [and] his mother generally cooking at home. He told me that all his siblings [live] with his parents. He claimed that his siblings are not working and doing “nothing,” and depend on money from him for their subsistence, his having been able to work on the bridging visas he has held since around 2016. He told me he used to be totally supported by his parents to study and subsist here in Australia. He said they lost everything, however, in 2017 which, I note, would have been after he gave evidence to the previously-constituted Tribunal. I asked him how his parents had come to lose all their savings and he said that “the police officer in my case” came to his family home and demanded a bribe which his parents paid before fleeing the family home to move away.

12. [The applicant] reminded me that the police officer he was describing had been involved in harassing and detaining him, in cahoots with the Mullah, back in 2011 or 2012.  I asked [the applicant] why that police officer just turned up, as seemed to be the case, demanding money five or six years later. In response, he said that after he came to Australia, the policeman “went quiet.” He said that he then returned to Pakistan in 2014, believing that things might have blown over, as it were, and that the policeman somehow heard he was there, but did not catch up with his family until after he, [the applicant], had already left again for Australia. He said, apparently quite equivocally, that the officer asked his parents where he had been for the preceding two years, “or maybe he just wanted some money.” He thus implied that the officer extracted some money from his parents in 2014. He went to to say that in 2017, the officer said to his parents, “Pay me money or I’ll disturb you guys a lot.”

13. I invited [the applicant] to comment on the possibility that the behaviour of the police officer in 2017 might have had nothing at all to do with him and only to do with wanting some easy cash. In reply, [the applicant] said this was quite possible, although he said he was concerned that it was the same police officer as the one who had given his family trouble in the past. By way of arguing the plausibility of the officer’s behaviour, [the applicant] directed my attention to the story of an officer called Rao Anwar, former Karachi police chief, who was convicted and internationally blacklisted in the matters of a number extrajudicial killings. I have duly followed up the history of Mr Anwar, a corrupt police officer, and though it suggests by vague example that “these things can happen,” I find accounts of that person’s crimes[9] add little to no weight to [the applicant]’s claims about himself and his own family.

    [9] “US blacklists Rao Anwar for 'serious human rights abuse' through fake police encounters,” Dawn, 10 December 2019,

14. [The applicant] went on to contradict much of what he had just told me about his immediate family in Pakistan.

15. [The applicant] said his brother, who is [Age], had started a number of small businesses in recent years that had failed due to market forces. He also said that his brother had tried to apply for jobs with several employers who refused to employ him after they checked “criminal records.” [The applicant] said those employers told his brother that he did not meet criteria for the jobs on offer, but implied to him that they were refusing him employment due to who his brother ([the applicant]) was. These claims, however, appeared to collapse entirely under closer examination. When I asked whose “criminal records” he was mentioning, he said they pertained to himself, rather than his to his brother. Then he said they were not actually “criminal records” at all. I then asked him, “So what record would those employers have read about you?” and in reply, he said, “I don’t know.” I asked him of he was not merely engaging here in speculation and he said that his brother does not talk to him much, in any event, and did not tell him directly what had happened during his searches for employment. [The applicant] then told me that he had himself merely intuited somehow what he thought his brother had been telling him. I put to him that, at its best, this information appeared to be bald and unsupported speculation. In reply, he said that it “could be.” He went on to say, “I don’t have anything to prove it.”

1. I put to [the applicant] that this evidence about his brother struck me as being inconsistent with the claim made earlier in the hearing about his having been doing “nothing.” He did not give a satisfactory response.

2. I asked [the applicant] for more information about his sisters and he said that both of them have gained master degrees, the younger sister having had hers conferred on her around two to three years ago. This would appear to suggest that her life has been a substantially stable one.

3. [The applicant] said that one of the sisters used to work [until] about six months ago when she quit after being sexually harassed by a colleague. He said his family did not report the mater to police, acknowledging that it is common for families in such cases to avoid doing so, as society usually blames the victim for somehow provoking the abuse. [The applicant]’s evidence about his sister here did not appear to have any link to his claimed problems with [Company], the TTP, the Mullah or the police, or anyone else such as, say, the MQM. However, quite relevantly, it contradicted his suggestion, from earlier in the hearing, to the effect that this sister had been doing “nothing” because of the family having remained under repeated or renewed pressure arising from his past problems.

4. [The applicant] told me that his other sister has been working, since the conferral of her master [degree]. This also contradicted his earlier suggestion bout her doing “nothing” because of the family having remained under repeated or renewed pressure arising from his past problems.

5. I asked [the applicant] for more detail about his family’s house moving in or since 2017. He said that the family moved in 2017 from its original home in Karachi to a house in [Suburb 1], about one hour’s drive away. He said his family them moved in 2020 to a location called [Location], near [Suburb 2], about 30 minutes’ drive from the original home. I asked [the applicant] to explain why, in the claimed circumstances, his family had moved closer to the district in which it had previously lived. In reply, he said that his father wanted to be nearer to the house they vacated in 2017 so that he could “look after” it. He said his father goes there every day. I put to him that on this evidence his family had not abandoned that house at all, and he agreed it had not. I asked if the house was not rented to anyone and [the applicant] said it was not because it is old. He then changed his evidence about this a few moments later, saying that because of his past problems and experiences, which had negatively impacted on his family, people who knew his family had only ever made insulting and exploitative rent offers. He said that his father had therefore refused to rent out the house for “emotional reasons.” He said his father prefers to visit the house every day and just sit inside it until it is time to return to [Location] for dinner. On this evidence, it struck me as hard to accept that [the applicant]’s family had fled their old home in Karachi for fear of ongoing, potentially relevant harassment.

6. I asked [the applicant] why, if his family had hit such hard times, it had not been more pragmatic abut renting out the house, at least temporarily, at a lower rent than it might otherwise prefer. In response, [the applicant] suggested that to do so would have amounted from his father’s perspective to a loss of face. It surprises me that the family, if as straitened in its affairs as claimed, and as fearful for its safety in 2017 as claimed, did not at least try initially to sell or rent the house.

7. I asked [the applicant] to describe his parents’ day-to-day life in [Location] and he spoke of his mother doing the housework and his father making regular nostalgic visits to the old home. I put to [the applicant] that whereas he had tried to suggest to me that his family has suffered years of disadvantage arising from his alleged problems with [Company] and the rest, the facts appeared to strike somewhat of a stark contrast: his family members have enjoyed arguably stable and productive lives. [The applicant] refuted this, saying that his family lost all its savings after having worked to accumulate dowries for his sisters. He then showed me some photographs of one of the religious rites conducted at his 2011 wedding, this one in particular involving an imam reciting prayers while the bride and her party are doing something else in a different room. [The applicant] said that the look on his face was one of stress and that this was exclusively the result of what he had been going through with [Company], [Mr A], the TTP, the corrupt Mullah and the co-opted police. I asked if he was not just looking solemn in keeping with the particular rite at that moment and he said he was not. I asked if he might not have been a bit nervous, as bridegrooms might be, and he said he was not nervous in that way but stressed about his protection issues. I returned the wedding photographs to [the applicant] without copying them, indicating that it would be extremely difficult to give a mere handful of images of a solemn prayer reading any weight either ay in the present matter.

8. Interestingly, [the applicant]’s 21 January 2020 submission does not mention anything about a police officer he purportedly encountered in 2011 or 2012 having re-appeared in 2017 and having intimidated his family out of its entire savings. Having considered all of the evidence in this case in its entirety, I have given this omission, cumulatively, some negative weight.

9. I asked [the applicant] why, in the claimed circumstances, he had returned voluntarily to Pakistan and visited his family home in 2014. In reply, he said he had wanted to see his parents. I asked him if he did not think at the time that he would be putting himself at risk of serious and significant harm, and he said that the police officer had stopped harassing his family by 2014 (before commencing again just after he had visited, stayed there left) and that the Mullah with the TTP affiliations had moved away. He said that six months after he first departed for Australia, no-one who appeared to represent a potential threat to him had continued to ask after him.

10. [The applicant] appeared to say something significant here: that out of everybody who had represented a potential threat to him in the past, only one individual police officer ever reappeared and his motivations, according to [the applicant]’s evidence, might have been solely mercenary, having nothing to do with the alleged facts that led to [the applicant] purportedly fleeing Pakistan in March 2012. On these facts, it might be difficult to find that he continued to have well founded fear of being persecuted or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there would be a real risk that [the applicant] would suffer significant harm.

11. However, I continued to invite more detail from [the applicant]. In particular, I drew his attention to the “local Mullah,” described in the 21 January 2020 submission as having contacted his father around October 2019, to interrogate him about his and [the applicant]’s involvement with [Mr A] in the past, and to demand through his father that he, [the applicant], come back to Pakistan and work for the TTP.

12. I asked [the applicant] if this “local Mullah” was the same Mullah who had given him and his family so much trouble before having left the scene prior to his, [the applicant]’s, return visit to Pakistan in 2014. [The applicant]’s reply struck me as very surprising: he said he did not know. He said he did not ask his father. I asked him why he would not have asked, as the details could potentially have been of significant relevance to the present case. In reply, [the applicant] said he had just asked his father for an update. I put to [the applicant] that it would have been in his interests to ask his father for more detail. Then, in reply, he changed his evidence, saying that the relevant conversation had been one that he had with his mother, rather than his father. This was a clear inconsistency. [The applicant] went on to say that his mother told him at the time that his father had been “tortured” in 2019. This claim made it seem all the more implausible that [the applicant] did not ask for more detailed information in the claimed circumstances.

13. Further to all this, [the applicant]’s reference to the “local Mullah” in October 2019 struck me as being a reference to the Mullah in the locality where [the applicant]’s family was purportedly residing in October 2019: according to [the applicant]’s evidence earlier in the hearing, that would have been a local Mullah in [Suburb 1], about one hour’s drive away from where his family and the original Mullah used to be located. On this evidence, and on the evidence of the troublesome Mullah having left the scene by 2014, it seemed inconceivable this “local Mullah” could have been the same Mullah as before, and yet [the applicant] said he did not know and had not bothered to ask. On the evidence before me, this “local Mullah” would not have been the one from the previous locality who had left the scene five years earlier. However, according to [the applicant], this “local Mullah” knew all about [Mr A] and the alleged illicit relationship between [Company] and the TTP, right down to details about [Mr A] and [the applicant] having embezzled money that the TTP had intended for [Company], or someone in [Company] other than [Mr A] and himself. On the evidence before me, [the applicant]’s evidence about this “local Mullah” struck me as vague, confused, inconsistent, improvised and far-fetched. Ultimately, on the evidence before me, it appeared inconceivable from a range of viewpoints that the contents of the 21 January 2020 submission could be factual. If that submission were truthful, and I am not satisfied on the evidence that it is, that would mean that, contrary to his oral evidence, [the applicant]’s family had been living since 2019 suffering constant hostility, mistreatment and death threats from TTP abductors torturers and extortionists, and hence there would be even more reason for [the applicant]’s father to avoid turning up regularly to sit for hours at his old house where he could easily be located and harmed.

14. I introduced [the applicant] in detail to the protocols of s.424AA of the Act, and in doing so I assured him that as at that time I had not made up my mind about the information I was to put to him or about my overall decision in this matter, however potentially “negative” some of the terms in this section of the Act might sound:

    Information and invitation given orally by Tribunal while applicant appearing

    (1)  If an applicant is appearing before the Tribunal because of an invitation under section 425:

    (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)  if the Tribunal does so--the Tribunal must:

    (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)  orally invite the applicant to comment on or respond to the information; and

    (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information ...

15. With explicit reference to these protocols, I read three sets of information about [Company] as summarised in the previously-constituted Tribunal’s decision record. After I read each individual item I invited [the applicant] to say whether he wished to comment on or respond to the information immediately or wished to seek additional time. At each instance, he asked if he could make up his mind about seeking more time after having heard and noted all three items of information. I assured him that that would be allowed.

16. For clarity, I repeat here the three relevant sets of clear particulars that I put to [the applicant], as drawn from the summaries in paragraphs 38 39 and 41 of the previously-constituted Tribunal’s decision record (under my paragraph 17):

17. The first item of information is that

    [Details deleted].[10]

    [10] [Details deleted].

18. I put to [the applicant] that this information appeared relevant because, given his junior sales position, it might be difficult to accept as fact that he was required to work across three provinces so soon after he had commenced work with [Company].

19. The second item of information is that

    [Details deleted].[11]

    [11] [Author], About [Company] (internal publication), 19 December 2010, [Reference deleted]

20. I put to [the applicant] that this information appeared relevant because it potentially cast doubt on his claims that [Company] was in need of volunteers, such as him, to sell its products in Baluchistan and Khyber Pukhtunkhwa (formerly NWFP).

21. The second item of information is that

    [Details deleted].[12]

    [12] [Deleted].

22. I put to [the applicant] that he relevance of this information appeared to cast doubt on [the applicant]’s descriptions of the details, logistics and style of his delivery operations in various far-flung provinces.

23. After I finished reading each of the items of information and after having explained to [the applicant] in each instance why the respective items of information were relevant to the review, mainly because they raised concerns about inconsistency between the information read to him and his own claims about how he had been employed at [Company], I invited him to say if he was seeking additional time to comment or respond. Answering this invitation, [the applicant] said he did not require additional time and would comment on and respond to all three items of information.

24. [The applicant] commented on and responded to each of the three items of information in reverse order, but first he asked me to listen to a general oral submission about how much more clearly he now understood his past experiences, compared with when he appeared before the previously-constituted Tribunal.

25. [The applicant] said that when he joined [Company] he had been impressed by [Mr A]’s lifestyle and had been eager to emulate it and therefore accepted [Mr A]’s invitations to accompany him on business trips out of Karachi and Sindh. He said that at the time he was eager to amass concomitant travel expenses so that he could buy a flashy motorcycle and treat his friends to expensive dinners and the like. He told me that he now felt that [Mr A] and [Company] had been setting him a trap, taking advantage of his aspirations towards leading an ostentatiously comfortable lifestyle. He said that [Mr A] kept assuring him that he was future management material. He said he was spending a lot of money at that time on himself and his family.

26. I asked [the applicant] if he ever told the previously-constituted Tribunal that [Mr A] and others at [Company] had set out to trap him from the outset and he said he did not do so because, at the time, he had not been thinking along those lines. I asked him on what basis he came to conclude that he had been ensnared from the outset in a trap exploiting his wealth aspirations and he said that it occurred to him in 2018, the year after he received the previously-constituted Tribunal’s decision, that this was probably the case. He said that in 2018, he became aware of a notorious case of corporate malpractice in Pakistan know as the Nestlé milk scandal. (See separate discussion of this below.) He said that what happened with Nestlé was not in any way what he supposed was happening in [Company] but, in his opinion, it did go to show that a supposedly reputable company could be capable of truly venal practices. He said that he made the connection in his mind when, in 2018, he saw the Canadian movie Tigers, a film depicting the struggle of a Nestlé employee in Pakistan to blow the whistle on Nestlé’s efforts to influence doctors to recommend or prescribe Nestlé’s infant “milk” formula as a product that was superior to mothers’ milk, an initiative over several years that killed millions of babies worldwide including in Pakistan.

27. Essentially, [the applicant] was now saying that he went to work with a company as venal in its own way as Nestlé had reportedly been. I asked him if he had any evidence and he said he did not. He indicated that watching the movie Tigers had opened his mind to the possibility. I asked him several times after several assertions he made if, given the absence of evidence, he was engaging in bald speculation about how comprehensively corrupt [Company] might be. He repeatedly said he was not, but in every instance in which he was given an opportunity to lay out the sequences of his thinking he gave me the unalloyed impression that he was indeed baldly speculating. In any event, I needed more from him in terms of comments on or responses to the three items of information I had put to him.

28. I indicated to [the applicant] that I was looking forward to hearing how this or any other comments or responses he might give with regard to the three items of information I had just put to him, and he then proceeded to comment on, or respond to, the third item of information.

29. [The applicant] acknowledged the distributions relationship between [Company] and [the distributer]. He said he was nevertheless asked to deliver “small boxes.” He said the people receiving the boxes used to thank him “nicely” and given him tips in cash, which he liked to receive without ever being curious about what he was really delivering because he was blindly pursuing his comfortable lifestyle at the time. He said he was unaware then but confident now that his manager, and his senior and director above his manager, were knowingly involved in illicit drug trafficking and using him to deliver those illicit drugs. As noted, he expressly pointed out to me that his manager was the man named [Mr B]. He was essentially saying that in addition to [Mr A] this criminal venture had involved a significant line of command within [Company]. [The applicant] indicated that he understood why the previously-constituted Tribunal put this third item of information to him but had not understood at the time what had really been happening back in the time when he worked for [Company]. He said he now realised that the deliveries he was sent to make were an irregular, side-bar operation, as it were, operating well outside [Company]’s logistical relationship with [the distributor]. He said he had blindly believed that [Company] could send him anywhere irrespective of its usual practice. He said to me that he had not yet had this new realisation, inspired by seeing Tigers, when asked by the previously-constituted Tribunal to comment on or respond to the third item of information. I asked him again on what basis he had come to this conclusion, and he said he had made the mental connection after seeing how Nestlé had been depicted in the movie Tigers.

30. Turing to the second item of information, [the applicant] commented or responded in the form of a question: noting how quickly [Company] had grown since its inception to a company with international networks including [in] [Country 3], he essentially asked how else it could have made its money except through operating an illicit drug trade put of Afghanistan in an illicit client relationship with the TTP. I reminded him that the potential relevance of the second item of information was that given the company’s size it might be seen as doubtful that [Company] was in need of volunteers, such as him, to sell its products in Baluchistan and Khyber Pukhtunkhwa (KPK, formerly NWFP). In the course of commenting or responding, [the applicant] disclosed to me that he only speaks Urdu. He explicitly stated that he does not speak or understand Baloch, the language of Baluchistan, or Pashtu, the language of KPK and, in particular, the local TTP there, such as it existed at the time. I put to [the applicant] that whether or not he wanted to volunteer because he liked commission, he would appear to have been a substantially under-skilled candidate to work in either province. In reply, he said did it because the Mullah with the TTP connections told him he had to replace [Mr A] who had left Pakistan.

1. Turning to the first item of information, [the applicant] said that it was not just [Mr A] but a whole corrupt cell of several senior managers in [Company] including its CEO who got him involved in the illicit drug trade once they saw how much he enjoyed the high life, as it were. Again, he said he never really realised this until after seeing the persuasive example of Nestlé’s venality as depicted in the movie Tigers. He went on to assert something that could only reasonably be regarded as speculation: he said that he though [Company] engaged him in the provincial delivery activities, inconsistent with its usual practices and his own level of experience and responsibility within the company, just in case one day it might need a “scapegoat” to offer up to authorities to distract the latter from discovering how corruptly the company was operated throughout its highest levels. He said this was consistent with having commented to the previously-constituted Tribunal that he was not sure what the company had wanted to do with him.

2. I asked [the applicant] if he had anything more he wished to discuss. He repeated the claim about things having tended to quieten down in Pakistan when he was away and having heated up when or after he was back there. He said he still believed that the October 2019 events had occurred. He said that if he returns to Pakistan “they” will go after his family again.

   The movie Tigers (Canada, 2014) and the Nestlé milk formula scandal

3. The agency known as Corporate Research Project has provided a detailed account[13] of the Nestlé infant formula controversy in Pakistan, which involved incentives to doctors to recommend and dispense its product over mothers’ milk.  

   [13] “Nestlé: Corporate Rap Sheet,” Corporate Research Project, 9 March 2013,

4. I have had regard to the following information which appears in a GQ article[14] about the film Tigers:

   Though events behind the real story of Tigers took place in the '90s and early 2000s, the Nestlé Baby Food Scandal and the subsequent Nestlé Boycott had been on since the 1970s. The International Baby Food Action Network (IBFAN), Save the Children and other public interest groups contended that baby formula was causing health issues and death in children in developing and underdeveloped nations. Activists pinned this issue not just on the product itself but with the way it was being sold.

   Nestlé was accused of marketing its product to mothers from economically backward communities, and of encouraging healthcare professionals to push formula as a substitute/improvement to breast milk, something that paediatric studies have proven protects the child against several diseases.

   Another unethical marketing method that advocacy groups alleged Nestlé was using was getting doctors to promote the baby formula as a milk substitute to poor mothers in Third World countries who had limited to no access to potable water. This water, when mixed with the formula powder, could cause severe health complications in the infants, they claimed. IBFAN even claimed that the FMCG giant was giving out free samples of its baby formula at hospitals and doctors' clinics frequented by poor mothers. These mothers would then use this formula to feed their infant instead of breast milk and so would end up losing their ability to lactate over time -- forming a dangerous cycle.

   These practices were first brought to public notice by the efforts by two British non-profits. An independent magazine called New Internationalist shed light on the Nestlé's supposed strategy in 1973. In 1974, a British NGO called War on Want published a booklet called The Baby Killer which was an "investigation into the promotion and sale of powdered baby milks in the Third World".

   When Third World Action Group, based in Bern, published a translation of The Baby Killer in Switzerland under the name Nestlé tötet Babies (translation: Nestlé Kills Babies), the company filed a libel suit. Though Nestle won the two-year-long trial, the defendants only had to pay a fine of $400 (approximately INR28,550). The judge also commented that the company would have to modify its methods of marketing. This issue gained even more publicity in 1976 when Time declared the results of the trial a "moral victory" for Third World Action Group and their findings.

   The case opened the courtroom doors for citizen groups, advocacy groups and others to bring more baby formula companies to trail -- thus kicking off the boycott. From America, it spread to Australia, New Zealand and Canada. Parts of Europe followed. By 1978, the U.S. Senate looked into the promotion of breast milk substitutes amidst calls for regulation. In 1977, the need for a marketing code was registered at a WHO and UNICEF meet attended by delegates from across the world. After the conference, six of the groups who were represented at the meet went on to form the IBFAN.

   Finally in 1981, almost a decade after New Internationalist's piece, the World Health Assembly (WHA) adopted the International Code of Marketing of Breast-milk Substitutes. When the Swiss food company (the biggest in the world) agreed to conform to the code in 1984, the Nestlé Boycott was lifted.

   Interestingly, Tigers' real story begins only in 1997 with Syed Aamir Raza Hussain blowing the whistle on Nestlé's baby formula operations in Pakistan. But it took another five years and a whole lot of courage on Hussain's part to finally have the Code's guidelines put into law in his home country…

   [14] “The real story of Tigers: How a brave whistleblower took on an international conglomerate for Pakistan’s poorest infants,” GQ Magazine, 21 November 2018,

5. Although [the applicant] claims to have first drawn inferences in 2018 from the Nestlé scandal in Pakistan, to argue before me how plausible it might be that [Company] had set a trap for him, by deploying him in ways that were inconsistent with its known working structures and practices, he did not discuss any of these inferences in his 21 February 2020 submission to the Tribunal.

6. Relevant to this I have found no suggestions in independent media to the effect that [Company] or its affiliates have any dealings with the TTP or any other criminal groups or ventures. After a thorough Internet search, I have only been able to evidence of a single instance of possible controversy having arisen from what appears to have been a rigorous investigation of [Company]’s accounts: a [Year] court case dealing with failure on the part of the company to pay the appropriate level of duty on a specified commodity, namely [details deleted].[15]

   [15] [Reference deleted]

   Other independent country information

7. I have had regard to the DFAT Country Information Report: Pakistan, of 20 February 2019:

   Mutahidda Qaumi Movement (MQM)

   3.163   MQM is a Karachi-based secular political party which advocates the rights of ‘Mohajirs’, or Urdu-speaking Muslim migrants (and descendants) from India. MQM also has power bases in Hyderabad and Nawabshah districts, Sindh. Prior to the July 2018 general election, MQM exercised considerable political influence in Sindh holding 50 seats in the 167-seat Provincial Assembly of Sindh. Its influence has diminished in the wake of the general election: it now holds 21 seats in the Provincial Assembly. It remains a political force, but leadership and faction conflicts have affected performance. MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindh-based Pakistan People’s Party and Pashtun parties.

   3.164   In 2013, the Rangers – a federal, paramilitary force - (see Police, Frontier Corps and Rangers) commenced operations in Karachi that significantly reduced political violence. MQM leaders claim the Rangers disproportionately targeted MQM, affecting over 500 families since 2013. MQM claims that, since 2013, over 140 of its members were subject to enforced disappearances and over 100 to extra-judicial killings. MQM further claims that government forces detained more than 1000 of its members in the same period. MQM reports a decrease in numbers of new enforced disappearances in the context of an increase in enforced disappearances across Pakistan.

   3.165   While numbers are difficult to verify, reports indicate the Rangers killed many MQM members during operations against alleged violence and extortion. In August 2016, the Rangers announced they had apprehended 848 assassins affiliated with MQM ‘militant wings’ since September 2013. The Rangers claimed that 654 of those arrested were responsible for more than 80 per cent of all targeted killings in Karachi and Hyderabad. MQM suspects have reportedly confessed to involvement in 5,863 incidents of targeted killings.

   3.166   Militant groups such as the TTP have periodically attacked MQM members because of their secular ideology, but such attacks have been much less frequent in recent years. Anti-MQM sentiment is also connected to allegations that MQM has links with Indian intelligence. The level of anti-MQM rhetoric, discrimination and violence reflects popular perceptions of the Pakistan-India bilateral relationship.

   3.167   In August 2016, the controversial exiled leader of the MQM, Altaf Hussain, made an address from London to MQM supporters on a hunger strike in Karachi. Altaf allegedly urged supporters to attack media outlets that did not give MQM sufficient media coverage. Following the speech, a group of MQM supporters attacked an ARY News office. The attack and subsequent violent clashes with police killed one person and injured several others. Rangers sealed MQM’s offices in Karachi, launched a treason case against Altaf, and arrested five MQM leaders in Karachi.

   3.168   Anti-Pakistan rhetoric in Altaf’s speech led to senior MQM leaders to declare they would no longer answer to Altaf and run the movement from Pakistan. The party split into two factions, one loyal to Altaf Hussain’s leadership from London (MQM-London, or just MQM) and one led by Pakistan-based party officials (MQM-Pakistan). The government formally recognised MQM-Pakistan (MQM-P) and its former leader, Farooq Sattar. Sattar was replaced by Khalid Maqbool Siddiqui as the leader of MQM-P in February 2018.

   3.169   DFAT assesses that MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. DFAT assesses that MQM members who are associated with (or perceived to be associated with) political violence and/or criminal activities face a moderate risk of violence from security forces.

8. Evidence of the longstanding and unresolved enmity between the MQM and the PPP is discussed in Minorities at Risk Project, Chronology for Mohajirs in Pakistan [2004] at Refworld.com.[16]

   [16]

9. Since the time when [the applicant] and his family last resided in, the MQM is reported to have been decimated as a political force by internal schism, corruption and assassination:

   On 18 June [2020], an antiterrorism court in Islamabad closed a final chapter in the history of the Muttahida Qaumi Movement (MQM), a political party that once represented Mohajir nationalism, lorded over urban areas of Sindh province, including Pakistan’s economic heart Karachi, and was a force to reckon with in national politics.

   The court sentenced three men to life in jail for the murder of MQM leader Imran Farooq in London in 2010. More significantly, the court held the MQM’s supreme leader Altaf Hussain responsible for it, having been ordered the fatal hit of the man who once was his trusted lieutenant and the party’s chief ideologue.

   … [The] party that once dominated Sindh’s urban middle class finished, with a big void in it, Mohajir nationalism no longer a potent force it once was.[17]

   [17] “Closing of MQM chapter in Pakistan’s politics,” Raisina Debates, 25 June 2020,

10. Independent reporting[18] indicates that MQM’s main rival, the PPP, is also a diminished political force in Pakistan:

    Today, the People's Party is a shadow of its former tumultuous self, a once-mighty political force that held power repeatedly during three decades but has fallen precipitously in popularity …

    The party suffered a crushing defeat in the 2013 national elections, handing power to its longtime rival, the Pakistan Muslim League-Nawaz. Today, its influence in Parliament has been reduced to its longtime stronghold, Sindh province. It also faces new competition from the Pakistan Justice Movement, led by cricket star Imran Khan, which has siphoned off much of the youth and labor vote.

    [18] “Once a mighty political force, the Pakistan People’s Party is struggling to make a comeback,” The Washington Post, 11 December 2017,

11. The demise of the PAC is described in the following 2016 report:

    When Benazir Bhutto returned to power, her government worked on the uplift of Lyari. But other political forces had encroached on its turf, most notably the MQM, which flexed its muscles through Pappu’s gang. After Benazir Bhutto’s death in 2007, it was her widower Asif Ali Zardari’s government that supported Rehman Dakait to form the “People’s Aman Committee” (PAC) to take on the MQM. The PAC had its work cut out and wars erupted between the gangs of Rahman Dakait and Arshad Pappu.

    The PAC went out of control and kidnappings rose significantly in Karachi. PAC members started collecting “protection money” across the city. But its biggest mistake was when the PAC refused to endorse Zardari’s half-brother as a candidate for MP from Lyari.

    Relations between the PPP and the gangsters soured and the PAC was banned in 2011. A police action led to the death of Rehman Dakait in 2009. His empire was taken over by his cousin Uzair Baloch. This was contested by Baba Ladla, an ally of Rehman Dakait and Baloch, who formed his own gang.

    After a particularly bloody round of violence in Lyari, Prime Minister Nawaz Sharif ordered the paramilitary Pakistan Rangers to take control. The operation started more than a year ago and more than 1,000 men were taken into custody …[19]

    [19] “Gangs of Lyari: Brutal tales of violence from Karachi’s ‘wild west’,” Hindustan Times, 18 April 2016, >

    There is independent evidence of the PAC was banned in 2011 and several of its remnant offices in Lyari razed in 2016:

    Amid a crackdown against illegal offices of the Muttahida Qaumi Movement in the city, the authorities launched an operation on Saturday to demolish offices of the banned People’s Aman Committee (PAC) in Lyari.

    Police said three offices were razed with the help of bulldozers in Baghdadi, Kalakot and Chakiwara localities. They said the offices had been constructed on government land.

    The police further said all illegal offices of the PAC would be demolished in the city. Saturday’s action followed the completion of a survey of such offices in Lyari, Yousuf Goth, Malir and Old Golimar.

    [A] PAC leader … who had fled the country after the start of the Karachi operation in September 2013, was arrested after his return to Karachi in January this year.

    Separately, three more MQM offices were demolished which had been constructed on government land illegally, according to the Anti-Encroachment Cell. [20]

    [20] “Five offices of banned PAC razed in Lyari,” The News, 18 September 2016,

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

12. 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.[21] 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.[22]

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

    [22] 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.

13. 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.[23] 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.[24]

    [23] 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

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

14. I have considered all of the evidence in this matter both separately and cumulatively.

15. I accept that [the applicant] is from [Town], North Karachi and was studying in [Suburb 1] when he was offered a junior position in [Company] which he took in 2008.

16. To argue the case that he faces persecution and significant harm in Pakistan [the applicant] has placed considerable emphasis in his evidence on the treatment of his family, particularly since he left in 2012 and left again in 2014. After close consideration of his evidence I find that [the applicant] has made inconsistent, contradictory, improvised (e.g., the “criminal record” claims) and exaggerated claims about the circumstances of his family, not least since 2016 and, in particular, October 2019. There were a number of instances in which he said that people asserted things and then changed his claims to suggest, on the contrary that what he was saying was merely the product of intuition, inference or speculation. In particular, I find that the references in the 21 January 2021 submission to a “local Mullah” and to subsequent abduction, detention and torture of [the applicant]’s father are all recent inventions. I also find that [the applicant]’s 21 January 2020 claims about and [Mr A] and himself being accused in 2019 of having siphoned money to support the MQM are also recent inventions. 

17. I am prepared to accept that [the applicant]’s family moved away from [Town] in or around 2017, while maintaining their usual home there. I am prepared to accept that the family moved in 2020 to [Location] to be closer to their house in [Town]. However, the evidence of the family’s ongoing physical attachment to the old house is at odds with clams about having fled [Town] in 2017.

1. As noted, [the applicant]’s 21 January 2020 submission does not mention anything about a police officer he purportedly encountered in 2011 or 2012 having re-appeared in 2017 and having intimidated his family out of its entire savings. Since the police officer’s actions allegedly had such an effect, it is hard to conceive that they were not mentioned in the 21 January 2021 submission. Having considered all of the evidence in this case in its entirety, I have given this omission, cumulatively, some negative weight in this matter. I do not accept that the policemen forced the family to pay him a “bribe” in 2017 or that he threatened them. I do not accept that there was any encounter around that time between [the applicant]’s family and such a person.

2. Meanwhile, noting that [Suburb 1] was where [the applicant] was sent to study and first made his connections with [Company], I am not satisfied that [the applicant]’s family was fleeing or going into hiding or trying to avoid harassment from anyone when it moved to [Suburb 1] in or around 2017. I am more confident in this view because [the applicant] told me that when his family moved to [Location], it did so in order to be closer to their usual home. I give the family’s purported house-moving in recent years no weight in the present matter.

3. Generally, as shown, [the applicant] provided highly inconsistent evidence about his family’s security and socio-economic circumstances in recent years. The many deficiencies in [the applicant]’s claims about the circumstances and treatment of his family since he started working for [Company] and, in particular, since 2012, do not relate to a marginal or minor aspect of his case; rather, they relate to a significant aspect of his overall case, going to whether potentially relevant intimidation and harm are ongoing, and also calling into question whether any potentially relevant intimidation or harm ever occurred in the first place. It is my confident opinion that these deficiencies demonstrate that [the applicant] has been an unreliable witness in this matter overall.

4. Regarding his claims about having been co-opted or coerced into illicit drug trafficking during his tenure with [Company], [the applicant] has now had ample opportunity to comment on and respond to independent information that appeared to cast into doubt the possibility that he would have been in a position in the company to be deployed as claimed. Ultimately, [the applicant]’s comments on and responses to the information I put to him did not satisfy me that he was involved, even unwittingly, in either a small or larger conspiracy within the company to traffic in illicit drugs in cahoots with the TTP. His comments and responses, largely suggesting that on the basis of speculation he thought he had been manipulated by a corrupt cell in [Company], that potentially included the CEO, into an entirely irregular side-operation, struck me as being far-fetched and fanciful. His many references to the Nestlé infant formula scandal, at their best all baldly speculative, in my view, did not help in any way to make his claims appear more credible.

5. Ultimately, I find it implausible that [the applicant], as a junior sales representative assigned to Karachi, would have been permitted to operate in zones in other provinces, effectively encroaching on the territory that would have been the responsibility of other Sales Managers, Assistant Sales Managers and Territory Managers, and that he could have done so without causing any conflicts within the company.

6. [The applicant]’s comments and responses to the information I put to him under s.424AA of the Act do not help to explain how [Mr A], who was [the applicant]’s immediate supervisor, and who would have been responsible for sales in a specified wider area, would have had the authority to assign [the applicant] to work in zones within other regions without any apparent authorisation by or intervention of the Sales Manager, [Mr B]. In particular, the baseless suggestion that a corrupt cell, reaching into the upper echelons of company management, working through [Mr A] to trap [the applicant] into working in such a activity strikes me as being far-fetched and fanciful.

7. Generally, I find [the applicant]’s descriptions of his delivery activities to far-flung provinces far-fetched and fanciful. I am all the more confident in this view given the fact, that [the applicant] himself at least tacitly acknowledged, to the effect that his complete lack of any ability to speak Baloch or Pashtu would have been disadvantageous to the company in such operations. 

8. Ultimately, notwithstanding that the Nestlé case shows that companies with good reputations can do bad things when no-one is keeping them in check, I do not accept that [Company] organised a van for [the applicant] to deliver company’s products to various locations in three far-flung provinces because the independent evidence demonstrates that this would have been purely the responsibility of [the distributor]. I am not satisfied on the evidence before me that [the applicant] and [Mr A] either circumvented [Company]’s clearly-defined and  well-established logistics, distribution and delivery systems for its products or, as he suggested in his comments and responses during the hearing before me, that the company somehow surreptitiously set him and [Mr A] up to do this in spite of its established relationship with [the distributor]. On [the applicant]’s performance as a witness in this matter overall, I do not accept that [the applicant] and [Mr A] were able to do what he claims they did because they had offered “discounts” to clients.

9. Having regard to the independent evidence about [Company] and [the distributor], and also having regard to [the applicant]’s general shortcomings in this matter as a witness of truth, I do not accept that he, as a junior sales representative, personally collected any payments, either in cash or by cheque, or that he carried these payments with him as claimed for delivery to [Mr A] or anyone else.

10. Whereas [the applicant] came to a “realisation” about [Company] being just as capable of venality as Nestlé, and whereas I tried to find evidence that might support his speculation, even though he told me there was no such evidence to be found, I give ultimately no weight in this matter to the evidence of the instance in which [Company] was prosecuted over unpaid import duty.

11. [The applicant]’s suggestion that the TTP saw him as suitable to carry out drug trafficking operations because of his age, profession, desire to make commissions or claimed capacity to travel does not sit with his evidence suggesting he would easily have been identified as a Mohajir and, as such, no friend of the TTP. In view of [the applicant]’s inability to speak Pashtu, and notwithstanding that some Pashtuns in Afghanistan may know how to speak some Urdu with contacts in or from Karachi, I do not accept that he was involved in any illicit drug operations, let alone involving the TTP, let alone in Afghanistan.

12. Given my findings above, I do not accept that [the applicant] was ever taken to the Afghanistan border. For the same reasons, I do not accept what I consider to be his far-fetched and fanciful claims about [Company] was colluding with TTP and a “local Mullah”, let alone to try to persuade him to smuggle illicit drugs from Afghanistan.

13. On [the applicant]’s performance as a witness, I give no weight to his evidence to the previously-constituted Tribunal as to why, in what he claimed were dire circumstances for him, he nevertheless returned from [Country 1] to Pakistan as soon as he did. On the evidence before me, I do not accept that he went to [Country 1] to avoid potentially relevant harm. I also note that, according to evidence he gave the previously-constituted Tribunal, [the applicant] returned from [Country 1] to work at [Company] and married a few months later. He was evidently not in hiding if he was doing all of that, no matter how “stressed” he claims to have been during the wedding ceremony. Overall, I find that his conduct on return to Pakistan from [Country 1] is not consistent with what one would reasonably expect of a person genuinely feared relevant harm.

14. I am not satisfied on the evidence before me that [the applicant] has been truthful about the considerations he weighed before returning to Pakistan in 2014. I find that his return there at that time, purportedly after having optimistically assumed that things had quietened down in his absence, is highly inconsistent with what one would reasonably expect a person with genuine fear of relevant harm would have done in the claimed circumstances.

15. I give some cumulative negative weight in this matter to [the applicant]’s delay in bringing his protection claims to light in Australia. He did not apply for protection until several months after re-entering Australia after his return visit to Pakistan. He suggested to me that it took a while before the “police officer” came calling  his family, but on his performance as a witness in the hearing before me, I do not accept that this happened at all. He evidently explained to the previously-constituted Tribunal that his father advised him to hold off from formally seeking  protection here, but I give that explanation no weight. [The applicant]’s delay in lodging a protection visa application and his 2014 visit to Pakistan both cast significant doubt on his overall credibility in this matter, cumulatively contributing to my overall finding to the effect that he is not a reliable witness in the present matter.

16. Ultimately, having considered all of the evidence in its entirety, both separately and cumulatively, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any of the five Convention-related reasons cited in paragraph 12 above. His claimed fear is not well founded. He is not a refugee.

17. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a). Accordingly, his wife and daughter do not meet criteria for protection as refugees.

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

18. Having concluded that the applicants do not meet refugee criteria, I have considered the alternative criteria relating to complementary protection.

19. 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.

100.   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).

101.   "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.

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

103.   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.

104.   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.

105.   Accepting that [the applicant] and his family are citizens of Pakistan, I find that Pakistan is the “receiving country” in this case.

106.   I find that the harm [the applicant] identifies in his claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”. He may also be claiming that he could be scapegoated by those with whom he was associated in the past and put up to face the “death penalty.” As far as his wife and daughter are concerned, any harm he faces would cause significant harm to them.

107.   The applicants’ claims to complementary protection are essentially the same as the refugee status claims put forward by [the applicant], as detailed above. Those claims have failed as refugee status claims due to their many instances of inconsistency and, cumulatively, due to his overall lack of reliability. In view of this, and of the "real risk" test imposing the same standard as the “real chance” test, those claims can no more succeed as complementary protection claims.

108.   On the evidence before me 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 the applicants will suffer significant harm.

109.    Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

Other findings

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

DECISION

111.   The Tribunal affirms the decision not to grant the applicants protection visas.

Luke Hardy
Member

Attachment  -  EXTRACT FROM MIGRATION ACT 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…