1905785 (Refugee)

1905785 (Refugee) [2023] AATA 1319 (27 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Fayyaz Ali Shah (MARN: 1570276)
CASE NUMBER:  1905785
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:27 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 February 2023 at 3:05pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – ethnic Pashtun – political opinion – Awami Nationalist Party (ANP) membership – anti-TTP views and actions – credibility concerns – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of Pakistan. A seaman, he was one of [number] crew members who came ashore between [in] September 2018 in protest disputing a failure on the part of their ship’s operator to pay them. They were reportedly all detained, initially, but [the applicant] for one was later released into the community. He lodged a PV application on 5 October 2018. The delegate refused to grant the visa on 28 February 2019 and [the applicant] sought review by This tribunal.
[The applicant] appeared before the Tribunal on 22 February 2023 to give evidence and present arguments. The Tribunal hearing was facilitated by an interpreter in the Pashto-English medium. [The applicant]’s adviser also attended the hearing.
For the purposes of this review, [The applicant] submitted a copy of the delegate’s decision which includes a summary of [the applicant]’s claims and discussion relating to critical issues in this matter.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade 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
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as refugees or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims to the Department
In his original PV application and statement of claims, [the applicant] claimed to be a married father of [number] daughters and a son, his family living with his parents in [Village 1] in the Swat district of KPK Province in Pakistan.
[The applicant] claimed he had problems with local cadres of the Taliban going back many years. He claimed the Taliban was against him because he was a member of the Awami Nationalist Party (ANP) and also because he used to support the Pakistani Army through his uncle [who] was an officer.
[The applicant] claimed that in 2006-7, he assisted army officers in identifying houses occupied by Taliban insurgents. He claimed that in 2008 a Taliban leader, perceiving him to be a spy for the army, ordered his execution. He claimed he fled KPK with his family for Faisalabad in Punjab Province. He claimed to have been unemployed during that time. He claimed he returned to Swat and [Village 1] in 2010, just after the Pakistani armed forces had secured KPK Province and decimated the TTP and forces its remnant members into retreat in Afghanistan. He was then able to go to Karachi to undergo training for the merchant marine. He said he was given his first contract in February 2010. He worked abroad for thirteen months, returning to Karachi in March 2011. He said he found Swat fully under state control but was threatened by TTP members over the telephone. He claimed he was offered another shipping contract in October 2011 on return to Karachi. He claimed he worked abroad until July 2012. Then, he said, he resided in Karachi, making occasional visits home to see him family at his wife’s father’s house in [Village 2], near [Village 1] in Swat. He said he did this, away from [Village 1], in order to keep a low profile for his own safety. He claimed that in early 2018, the TTP called him on his mobile telephone and demanded that he commence spying for them against the Pakistani army and ANP, instead of the other way around, or else face execution by beheading for having been a spy against the TTP. He said he then fled to Karachi and took up a shipping contract in April 2019.
Independent country information
Evidence to the Tribunal
[The applicant] told me his wife, their [children] and his parents all live together in [Village 1], Swat. He said that his two brothers live in Peshawar, although one brother has been declared missing after a January 2023 bomb blast in Peshawar that has been attributed to emboldened TTP members. He said both his brothers were in the habit of visiting [Village 1] from time to time.
[The applicant] said that when he stayed in Swat for seven months in 2011, he mostly stayed in his in-laws’ house which was about a kilometre and a half form his own home in [Village 1]. He sad he spent only a little time in his own village. I put to him that this did not seem like he was hiding, given how close the two villages were and give that he would likely have been easy to identify in the area. In reply, he said he “moved around.”
[The applicant] said he received only one threat in 2011, and that it was made a few days before he moved back to Karachi in October 2011. I asked him the content of the threat and he said it was something like, “You damaged our party. You spied on us. Wherever we see you, we’ll kill you.”
I asked [the applicant] why it took the TTP around six months to contact him after he returned to [Village 1] and nearby [Village 2]. He said this was because he was in hiding at his in-laws’ house. I put to him that since he was contacted by telephone his location did not seem at the time to have been an obstacle for the TTP which had purportedly been on the watch for him at least since 2008. IN reply, he said it might have taken the TTP some time to obtain his number. He said he changed it a few days later after reaching Karachi.
Noting that [the applicant] claims to have first been threatened with execution as a spy against the TTP in 2008, and noting that this threat was revived in 2011, I put to him that a reasonable person might be sceptical about the TTP purportedly asking him in 2018 to spy for them: he was hardy present in or near Swat most of the time and the TTP had twice confronted him in the past as a person they could not trust. In reply, [the applicant] confirmed that the TTP never trusted him because he had always been “against” the TTP. I put to him that this made it harder to conceive what the TTP would engage him to spy for them: how would they trust his information and how would they prevent him from absconding or hiding, as he claimed to have done effectively in the past? Death threat or none, he claimed to have been able to avoid the TTP year after year. It did not seem to make sense that they would not just kill him to avenge past activity and be done with it.
Responding to this, [the applicant] said that the TTP, at that time in 2018, intended to brainwash him into spying loyally for them. I put to him that this was a very new, hitherto unclaimed framing of the alleged TTP order for him to spy on their behalf. When I put to him that he had never claimed this before, he said, “They threatened me.” Here, though, it seemed to me illogical that people embarking on brainwashing [the applicant] to do anything for them would start by threatening to kill him. I asked him if there was any blackmail involved, as it has not been uncommon to her of people coerced into espionage to prevent harm to their reputation or to loved ones. [The applicant] said in reply that he was lucky not to fall into the Taliban’s hands.
I asked [the applicant] why he did not take his parents and young family out of Swat when he left. In reply, he said that the TTP would not have harmed them because his parents were old and the others would be left alone, being a woman and children. I put to [the applicant] that I was surprised to hear him speak with such confidence about the TTP quarantining its threats just to him. I put to him that the Taliban was often reported to have engaged in sexual abuse of women.[1] In reply, he said “In my area they don’t touch women and children.” He said his wife, children and parents had not been harmed. Then he said that he had taken them with him to Faisalabad in 2008 to protect them from harm during the end of Taliban rule in his area. This made it seem all the more odd, in the claimed circumstances, that he did not do anything to move his family away from where he was being targeted in 2018.
[1] “Afghan women face increasing violence and repression under the Taliban after international spotlight fades,” The Conversation, 5 February 2022, “PAKISTAN: Taliban threaten the family of a gang rape victim, her lawyers are illegally detained and tortured by the perpetrators,” Asian Human Rights Commission (AHRC), 31 October 2011,
I asked [the applicant] if anything notable had happened to his family since he evaded conscription into espionage in 2018. He then reminded me of a claim in his original statement of claims: “My family has informed me … that some unknown people are throwing rocks [at] our house in the middle of the night” and, “They are now throwing rocks [at] our house in the middle of the night.” I put to [the applicant] that such harassment sounded like quite serious harm to me. He then said that it only happened three or four times in 2018 and then stopped entirely. He also said he did not know where his family could go. I put to him that they might be able to relocate to Peshawar where, he said, his two brothers were living. He then said, again, that the TTP were only interested in him. Again I put to him that his confidence in supposed boundaries respected by the Taliban seemed odd in the claimed circumstances, and he said the TTP only ever targets its specific targets. His explanation did not appear to sit with the TTP reportedly having occasionally bombed mosques, including Sunni ones, where mean and women attended prayer in large numbers with their male and female children.
I asked [the applicant] if this might mean that these remnant TTP activists might have moved on, or died somehow, given the information, that he acknowledged to be true, about the Pakistani authorities having control of the area where he lived. In reply, he said the ones he had encountered were young.
[The applicant] acknowledged having entered Australian ports several times since 2008 and never having claimed asylum here. He said he had always been aiming to do so but had not been able to disembark the ships on which he had arrived. I asked him if some of his landing permits had been 4- and 5-day permits. He said they were. He said he was never allowed to go ashore. I asked him what had been different in 2018 and he said he saw officers of the Australian Border Force on the docks. I put to him that that would not have been unusual. He then said his ship had security preventing crew from disembarking. It was implicit in [the applicant]’s claim here that the ship fed and accommodated its crew so that the latter did not much need to go ashore. I asked [the applicant] how he overcame “security” in 2018 and he said he “took an opportunity.” I asked him to describe in detail how the opportunity unfolded, and he said he came ashore in the daytime. I asked him of there had not been lots of daytime during previous dockings in Australia and he then said he “took a chance” in 2018. I asked him to describe in detail how he made luck work for him on that occasion and he said he “took a chance.” I put to [the applicant] that I was no closer to hearing a plausible explanation as to how an opportunity was taken in 2018 that had not been available during several previous occasions. His evidence here remained vague. He said other crew members fled the ship en masse at night whereas he escaped alone in the daytime. He said he was not with them until Australian authorities proceeded to hold them in a common location. He acknowledged that many of the other crew members also applied for PVs.
Here, we discussed the events of [September] 2018 when several crew came ashore to protest unpaid wages. [The applicant] indicated that it did not end well as all who protested did not get their jobs back. He acknowledged that any returning to Pakistan would likely never be contracted in the merchant marine ever again and likely have to go back to relatively menial income from farming. He said that that would be his fate, whether or not the TTP was threatening him.
We discussed the relevance of [the applicant]’s claimed membership of the ANP, the Tribunal having regard to the following relevant information from DFAT:
3.73 The Awami National Party (ANP) is a secular Pashtun nationalist political party. It was formed in 1986 and enjoys strong support in Khyber Pakhtunkhwa and Balochistan. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government. Since 2018, ANP members have participated in large-scale demonstrations led by the PTM against human rights abuses against Pashtuns in the tribal regions of Pakistan.
3.74 The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and work to improve the Pakistan-Afghanistan bilateral relationship. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded 69 and killed at least 20, including prominent DFAT Country Information Report – PAKISTAN - January 2022 29 ANP politician Haroon Bilour. In June 2019, the Peshawar city district president of ANP, Sartaj Khan, was gunned down in Gulbahar, Khyber Pakhtunkhwa. The ANP was also the target of TTP attacks ahead of the May 2013 elections. While security operations have weakened the TTP in recent years, they retain the capacity and intent to target ANP members and leadership …
3.75 DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The risk may be higher for ANP leaders. ANP leaders may also be at risk of official harassment due to their association with the PTM protest movement.
I asked [the applicant] how substantial had been his role in the ANP over time and he said he was involved in an election campaign in 2008. I asked him how his election campaign activities back in 2008 would give rise to sustained and systemic harm now or in the reasonably foreseeable future and he said that because he was a person “against” the TTP he would be persecuted. He appeared to imply that just being a member of the ANP is enough to tell the Taliban one opposes them in some way. [The applicant] claimed no ongoing substantial involvement with the ANP in Pakistan after 2008 when he was mainly engaged in the merchant marine abroad. I also note that being known to the TTP as a person “against” it did not stop him from residing in Karachi or the Swat region in between crewing contracts.
I asked [the applicant] to explain the significance of his uncle who, he claimed, was an army officer. He said that he was targeted by the TTP for helping his uncle. I asked why the TTP was targeting him and no other males in his family, like his two brothers in Peshawar, and he said that it was he alone who had shown the army which local houses were inhabited by TTP operatives back in 2008.
I asked [the applicant] to describe his uncle’s current circumstances. He said his uncle had retired from the army and was now living in the village ([Village 1], apparently). I asked him if his uncle is suffering any potentially relevant harassment or harm and he said his uncle is “trained,” implying that his uncle is able to avoid anything that anyone might try to do to hurt him. I asked [the applicant] again if anything relevant had ever happened to his uncle and he said that nothing had. I put to [the applicant] that the ongoing wellbeing of his uncle who is residing in the same home village did not appear to help support his own claims about facing a real chance of serious harm there. He said that it is different for anyone who showed Taliban houses to the army.

Up till a very late stage in the hearing, [the applicant] was still talking about his two brothers in Peshawar as though both of them continued to be accounted for. However, his adviser then asked if we might discuss the “kidnapping.” Here, the adviser appeared to be referring albeit inaccurately to claims appearing in a recent 15 February 2023 statutory declaration. The declaration states that [the applicant] continues to be a member of the ANP in Australia. [The applicant] provided a letter from an ANP office holder in Swat attesting to his ANP membership there. He claimed that one of his brothers is also an ANP member on Peshawar.
[The applicant] provided new information in his statutory declaration about his other brother, the one who was not an ANP member, having recently disappeared. Although the adviser referred to his current status as “kidnapped,” [the applicant] said in his statutory declaration that his brother has been missing “since 31 January 2023” after a bomb blast in Peshawar.
The bomb blast, I note, has been independently verified. It happened in a mosque on Monday 30 January 2023.[2] There were around 100 fatalities. [The applicant]’s claim suggests that his brother was accounted for up to the day of the bombing and disappeared the next day.
[2] “Death toll from blast in Pakistan mosque rises to at least 100 as country faces ‘national security crisis’,” CNN, 31 January 2023,
[The applicant] included a “newspaper cutting” which reads like a personal notice submitted to a newspaper by his family:
A youth named [Mr C] son of [Mr D], belonging to [named] neighbourhood in the [Village 1] area of Kabal Tehsil of Swat District, has been missing from Peshawar since 31 January 2023. [Mr C] is wearing black clothes and sports shoes; and he is a mentally sound educated youth. If anyone has seen him or has any information in relation to [Mr C], then please contact the following number as his family members are very worried.
[The applicant] also submitted a purported request to police to log a First Information Report (FIR) relating to the purported disappearance of [the applicant]’s brother:
It is stated that the applicant is a resident of [Village 1], Kabal tehsil, Swat district, and has been living in Peshawar for some time. The applicant’s son, [Mr C], who is about [age] or [age] years old, has gone missing since 30th of January 2023 without informing us. We have made a lot of effort to contact him but could not find him. Therefore, I would like to request you to register the first information report about [Mr C] son of [Mr D] at this police station and help us find our son. We are very worried. We want the police’s help in finding [Mr C].
Your sincerely,
[Signature]
[Mr D]
[Village 1], Kabal tehsil, Swat district
Date: 30/01/2023
This request is also purportedly witnessed by a police officer:
SHO of [specified] Police Station
The application is approved for action.
[Signature]
30/01/2023
It can be seen in the above report, purportedly signed by [the applicant]’s father and witnessed by a police officer on 30 January 2023, that the disappearance of [the applicant]’s brother was purportedly reported to police on the same date as the son went missing “without informing us.” However, 30 January 2023 is the day before the date given in the family’s notice in the newspaper.
[The applicant] also submitted a translated copy of a purported FIR:
The applicant is a resident of Swat district. He is a labourer and is [Mr C]’s father. On the night of 31st of January 2023, the applicant contacted [Mr C] via phone, but the number was switched off. The applicant got worried. The applicant tried to contact [Mr C] again and again, but the number was switched off, that the applicant tried to contact [Mr C] again and again, but the number was constantly switched off. Then, it was found out from friends that [Mr C] had not been to the office in the morning. Then, when he arrived at [Mr C]’s accommodation, the lock of the applicant’s house had been broken, and stuff was scattered everywhere. After receiving the application and as per the situation, the offence was found to have taken place under Article 365 of Pakistan Penal Code. The written application along with a copy of the case were sent to [named officer] for investigation.
[Signature and seal]
ASI [named]
31/01/2023
Here, it is reported that on the one and same night of 31 January 2023, [the applicant]’s father attempted unsuccessfully to telephone his son in Peshawar several times and then in the same evening travelled to Peshawar from [Village 1] where he claimed to reside, found the son’s home disturbed and then reported the matter to police who investigated it and found a specific offence had been committed. Peshawar is reportedly [number] hours by car from [Village 1].[3] A reasonable person might quite understandably consider it far-fetched that one person would be able to all of the things [the applicant]’s father is purported to have done in one evening and also travel the equivalent of a [number]-hour drive; this is even ignoring, for a moment, that [the applicant]’s father is purported to have first reported the son’s/brother’s disappearance on the day before it was first suspected and discovered.
[3] [Source redacted]
It is not clear from any of these documents that the suicide bombing in the Peshawar mosque on 30 January 2023 had anything to do with the allegedly missing brother’s circumstances.
[The applicant]’s statutory declaration mentions other relatives allegedly killed by TTP activists in recent years.
It will be recalled, meanwhile, that [the applicant] explicitly said to me at the Tribunal hearing that the TTP is not interested in harming other family members and are targeting him alone because of something he specifically did to assist the army in 2008. When I asked him, during the hearing, why his brothers in Peshawar had not been harmed, he omitted referring to one brother in Peshawar having recently disappeared; he emphasised that the TTP was “just after me.”
The ANP office bearer’s letter is dated 31 January 2023; it is very short and provides little to no helpful detail:
He and his family members affiliated with Awami National Party Since long.
Here he was facing danger from Taliban, therefore he left country Pakistan and now he is in Australia. Where he is safe. His arrival to Pakistan is not in his favour, because here his life is in danger. Therefor request that asylum may be granted to him on humanitarian ground.
The ANP office bearer in this case, according to his letterhead, is an “Additional General Secretary” and ex-MP called [name deleted]. There is no suggestion in the letter that the author or any other ANP members in or near [Village 1] in Swat are under any potentially relevant stress. The letter does not suggest that being an ANP member is, on its own, sufficient to attract a real chance of being persecuted. The letter does not acknowledge that [the applicant] voluntarily re-entered and resided in Pakistan, and in Swat in particular, many times since 2008.
[The applicant] declared that in 2008 the TTP asked him to join them and assist them in construction of Taliban centre in [Village 3] of Imamdherai, in Swat: “I refused and they declare me to be a spy of the Pakistani Army and order [sic.] for my killing.”
The statutory declaration includes a claim about social discrimination against Pashtuns in cities and provinces outside of KPK province.
In the statutory declaration, [the applicant] said he was “allowed” to leave his ship in September 2018 with other crew members. This is inconsistent in two respects with what he said at the Tribunal hearing, when he said he seized an opportunity of some kind to escape because he was still not allowed to go ashore, and that he came ashore alone in daylight whereas the rest came ashore under cover of night.
[The applicant] declared that he is also receiving psychological treatment:
I have been receiving psychological treatment in Australia because of the trauma I have suffered in Pakistan. I continue to suffer from sleeping problems, depression and stress. I felt I had no choice but to return to get help. I am receiving treatment from [name deleted]. Whenever I think about returning to Pakistan and think about the situation there it gives me a lot of fear and tension. The fear is what is causing all of my mental health issues. I could not work or move freely anywhere in Pakistan without having these worries. I'd always feel like a walking target. My psychologist has provided me a psychological report and is attached to this response.
Independent country information
I have had regard to the following information from DFAT relating to the TTP and other armed groups in Pakistan:
2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
2.40 TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have re-pledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.
Findings in relation to s.36(2)(a) of the Act
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.[4] 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.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220 .
[5] 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.
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.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] 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
[7] Sun v MIBP [2016] FCAFC 52 at [69].
In this case, [the applicant] claims fear of being persecuted for reasons of “political opinion” on account of his claimed ANP membership and anti-TTP views and actions. There is also a claim regarding his ethnicity, not involving the TTP who are also Pashtun, but relating more to social discrimination and whether he can enjoy state protection as a member of Pakistan’s Pashtun minority.
[The applicant] submitted a report from a psychologist diagnosing depression/anxiety disorder and other symptoms. I accept the diagnosis and have asked myself if [the applicant] was prevented by circumstances beyond his control from giving content and meaningful evidence in this application. I am confident he was not.
I have also considered the psychologist’s general position to the effect that the trauma he has diagnosed can be considered to be consistent with events described in [the applicant]’s claims. On this particular issue, it is important to acknowledge that the source of the information that informs the treatment recommended by the psychologist is, as must be, [the applicant] himself. Hence the psychologist’s report is in no practical way independent evidence in this matter. Also, a consulting psychologist and the Tribunal have very different tasks as must gather and test information in very different ways, appropriate to the very different tasks we perform. Still, that said the report records generally plausible descriptions of the time the TTP was in power in Swat:
… [the applicant] disclosed … seeing multiple killings ‘too many; my friends from my village’.
… he disclosed that the Taliban ‘harassed us; hitting us; forced us to join them against the government’.
Whereas I can accept that the TTP engaged in coercion and violence when it ruled Swat and [the applicant]’s village up until 2008-9, and can accept that this has caused some long-term traumatic sequelae in his case, I must test in his claims about what happened to him, in particular, then and since, in ways not required in the preparation of a psychologist’s report.
I accept that [the applicant] is an ethnic Pashtun, Pashto-speaking Pakistani citizen. I accept that there is some discrimination against Pashtuns in provinces other than KPK province, and that [the applicant] may have experienced social discrimination in Karachi and elsewhere. However, I am not satisfied that this is indicative of a real chance of his being persecuted in Pakistan. Meanwhile, on the evidence before me, I am not satisfied the Pakistani authorities are unwilling or unable to protect its Pashtun population in KPK Province, notwithstanding a recent, aggressive re-grouping of TTP insurgents in that province and other regions.
I do not accept as factual the suggested timeline in which the TTP, having threatened to kill [the applicant] in 2008, failed to get around to doing so and then later demanded in 2018 that he spy for them and then failed in that endeavour too. [The applicant] was unable to explain how the Taliban would ever have been able to rely on him to provide them with useful intelligence from anywhere. Also, the demand as described had no credible concomitant mechanisms capable of ensuring that [the applicant] would succumb to it. For example, whereas a person may indeed be coerced into spying for an entity in the context of extortion of some kind, there is no evident extortion in this story, and nothing else to give the TTP leverage over [the applicant] in the matter. In addition, the TTP gave itself no advantage by making the demand over the telephone as [the applicant] was all too easily able to hang up, move soon enough to Karachi and go offshore. I find the claim nonsensical, even more so in light of [the applicant]’s late suggestion that the TTP wanted to brainwash him. He has probably heard of the TTP’s notorious practice of offering food, lodging, camaraderie and education to youths who it then woos into embracing martyrdom. That practice has widely been described as a process of brainwashing.[8] However, his attempt to suggest that the TTP intended to “brainwash” him was just nonsensical. On the evidence before me, I am not satisfied that the TTP ever communicated any demand to [the applicant] that he spy for them.
[8] “Taliban using local maulvis to brainwash youngsters: police,” Deccan Herald, Karachi, 14 June 2011,
This in itself does not provide sufficient basis for disbelieving that the TTP threatened to kill [the applicant] back in 2008. It is possible that an applicant for protection may have embellished a truthful claim about a long-past problem to give it a little more currency. However, in light of the poor quality of the evidence discussed below, it is hard to accept the claims about the TTP seeking to avenge [the applicant]’s assistance of the army back in 2008.
With regard to [the applicant]’s “missing” brother, he spoke throughout the hearing as though unaware of that brother, in fact, being a missing person. He spoke of that brother living in Peshawar and of himself being the TTP’s only target. I give this failure some cumulative negative weight in this matter overall. Meanwhile, I am not satisfied on the evidence before me, viewed as a whole, that the content of the police documents and the family notice in the newspaper are factually reliable. Whereas I can accept that [the applicant]’s family published a notice in a newspaper on some recent day, I am not satisfied, in the context of the absurdly-dated police request document authored by [the applicant]’s father (on “30 January 2023”), that the content of that notice is in any way truthful. This inconsistency regarding the date of the discovery of the alleged disappearance also leaves me unable to give any weight to the purported 31 January 2023 FIR, even though it purportedly describes the police’s investigation on the alleged disappearance. The police might be telling the truth, meaning that their report is genuine, but I do not accept that [the applicant] and his family made truthful reports to the police. Hence I give no weight to any of those three documents. I give no weight to the claim about [the applicant]’s brother having disappeared. On the quality of the evidence before me, I give no weight to the references to various relatives having been killed by the TTP in recent years.
On the vague, inconsistent and somewhat nonsensical evidence before me, I do not accept that [the applicant] tried and failed or was blocked by any person or party from coming ashore to claim asylum in Australia on many occasions in the decade preceding his coming ashore in September 2018. Hence I find there has been an unsatisfactorily-explained delay on his part in bring his asylum claims to light. I find on the evidence before me that [the applicant] cam ashore with other members of his crew to protest in the context of a pay dispute.

All of this is to say that I find [the applicant] a comprehensively unreliable witness in this matter. For this reason I do not accept that the TTP ever threatened him for assisting the army, let alone in locating TTP houses in or near [Village 1]. On the evidence before me, [the applicant]’s training as a merchant seaman and long periods away from Pakistan at sea have nothing at all to do with a genuine fear of being persecuted.
I am all the more confident that [the applicant] gave no potentially significant assistance to the army in 2008 or at any time before evacuating his family temporarily to Faisalabad around that time because of the evidence he gave about his uncle having been an officer in the army who fought the TTP in Swat in 2008 and subsequent years and who is now a retired resident of [Village 1], living there unharmed and apparently unafraid. I give no weight to [the applicant]’s suggestion that this is only possible because his uncle is “trained.”
I am prepared, however, accept that [the applicant] joined the ANP more than a decade ago in Pakistan. Thousands of ethnic Pashtuns his age would have done so at the time. The ANP is a party of mass appeal to Pashto-speaking people in Pakistan. However, on the evidence before me, I am not satisfied that mere membership of the ANP is sufficient to give rise to a real chance of being persecuted in Pakistan, even in these times of TTP resurgence. As noted, I gave [the applicant] an opportunity to describe to me any particular aspects of his involvement with the ANP that might have led to his being singled out for serious harm by the TTP, and he mentioned having been involved in election campaign activities back in 2008. As also noted, I asked how these activities might give rise to sustained and systemic harm now or in the reasonably foreseeable future and he said that he would be seen by the TTP as a person “against” the TTP because he had been an ANP member. However, at other times during the hearing he said he was being singled out by the TTP not merely because of his ANP membership but because of his having helped the army to locate TTP houses in 2008. At the same time as threatening to kill him for exposing the TTP houses, the TTP were also asking him to help them construct a Taliban centre in [Village 3]. His evidence about his relationship with the TTP is confused. I have already found that I do not accept that the claim abut showing the army the TTP houses is truthful. ON [the applicant]’s performance as a witness in this matter generally, I give no weight to the claim about the TTP also seeking to avenge a refusal on his part to help being a Taliban centre in a nearby village in 2008.
Meanwhile, it is also claimed that [the applicant]’s brother [in] Peshawar is an ANP member and thus, according to [the applicant], also a person “against” the TTP in the eyes of that group, and yet [the applicant] explicitly said to me that nothing potentially relevant has ever happened to that brother. I give some cumulative weight in this matter to the evidently ongoing wellbeing of [the applicant]’s brother [in] Peshawar.
Whereas the ANP office bearer’s letter suggest that [the applicant] faced, and still faces, danger from the TTP due to his ANP affiliation, there is insufficient detail in the letter for me to give it any weight. I give more weight to the fact, evidenced in the generation of the letter, that the ANP still operates without evident relevant difficulty out of an office in or near [the applicant]’s village.
I give some negative weight in this matter to the evidence of [the applicant]’s family continuing to reside peacefully in [Village 1] and to his confidence about the TTP not targeting them for any reason.
In the event, as claimed, that [the applicant] joined the ANP’s Australian chapter after landing here in 2018, I am not satisfied on the evidence before me that that gives rise separately or even cumulatively to a real chance of his being persecuted in Pakistan.
Notwithstanding the DFAT reporting of recent targeting of some ANP figures by a resurgent TTP, particular during election campaigns, I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in Pakistan for reasons of having been or being a member and supporter of the ANP.
On the evidence before me, I do not accept that [the applicant] came ashore with any genuine asylum claims, let alone the one about the TTP having then-recently demanded he spy for them. I find that the pay dispute on board the ship he crewed led to sackings and left [the applicant] stranded in Australia without much if any economic future in Pakistan and that this was his real motivation for lodging his PV application.
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reasons cited in s.5J(1)(a) of the Act. He claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) 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.
Relevant to this, 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).
“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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” 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.
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.
Accepting that [the applicant] is a national of Pakistan, I find that Pakistan is the receiving country in this matter.
[The applicant]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and/or for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.
There is an implied claim about the TTP being resurgent in KPK Province, but the evidence of the circumstances of [the applicant]’s family members including his uncle lead me to find that there is not a real risk of [the applicant] suffering significant harm in this context. In addition, the resurgence as described is a risk to the population generally and is not faced by [the applicant] personally.
There is also an implied claim about [the applicant]’s trauma worsening in the event of being removed to Pakistan. In considering this claim I have had regard to the many times he continued to live in Swat after the Taliban were kicked out in 2009 and to the many times he resided in Karachi awaiting crew contracts. I have given some weight to his having been able to train in 2008 for the career he chose and then worked in for another decade, returning voluntarily to Pakistan many times in the interim. I have also considered whether there is any evidence of an intention on anyone’s part to cause him psychological harm in removing him to Pakistan, and am not satisfied on the evidence before me that there is.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions
For the reasons given above the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1319

27 February 2023

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