1905995 (Refugee)

1905995 (Refugee) [2022] AATA 4877 (26 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Khurram Shahzad (MARN: 1572896)
CASE NUMBER:  1905995
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Christine Cody
DATE:26 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 October 2022 at 5:30pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – targeted by the Taliban and/or neighbours – living near an army area – credibility concerns – inconsistent and changing evidence – delay in seeking protection – document fraud in Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 423A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Pakistan. His migration history (relevant to Australia) is set out in the delegate’s decision record[1]:
·     The applicant has been recorded on Departmental systems as having arrived in Australia on 14 occasions [since] September 2014 as maritime crew.
·     [In] September 2018 the applicant arrived in Australia as the holder of a Class ZM Subclass 988 Maritime Crew visa on [Vessel 1] at [specified] port.
·     On 17 September 2018 the applicant deserted from [Vessel 1] at [specified] port.
·     He was a ‘ship deserter’ on 18 September 2018. He was detained from 18 September to 4 October 2018[2].
·     On 8 October 2018 the applicant applied for XA 866 (Permanent Protection) visa; an associated Bridging visa was granted.
[1] Provided to Tribunal by the applicant
[2] Set out in his application form.
Departmental file
The applicant provided application forms and supporting documents to the Department. According to the application forms, his background is as follows:
·     The applicant was born in [year] in Ghazi, District Haripur Tehsil, Khyber Pakhtunkhwa Province, Pakistan. His religion is Muslim and his ethnicity is Pashtun. He has never been married. He speaks, reads and writes in Urdu, and he can speak both Pashto and English.
·     He has lived all of his life, from birth in [year] to September 2018 (the date he last left Pakistan) in Ghazi.
·     He was educated from 1986 – 1996 in Ghazi. When he was a student, he was supported by family, and he worked casually in a nearby restaurant. He remained living at home in Ghazi. [From] October 2007 he worked as a seaman. This role continued to September 2018. His role on the ship was a [Occupation 1].
·     He provided no details of his family.
The applicant’s claims are set out in the application form as follows:
·     The reason why he left Pakistan was because: “I had a threat for my life (back in end 2011). My neighbour, [Mr A], son of [Mr B], was a member of Taliban and I had suspicion of his activities and the people who came to visit him every now and then. I reported to Army of his activities. Because of my reporting to Army, I started receiving calls from unknown numbers and they would regularly give me threats over the phone. They threatened to kill me and warned me not to report their members to any authority.”
·     He experienced harm in Pakistan: “2-3 weeks after I reported to the Army, I was going to my sister's home in a nearby village on my motor bike and 3 unknown people stopped me and beat me. After they saw some villagers coming towards us, they ran away. They kept asking me who else I have told about their men.”
·     He did not seek help: “I did not inform any authorities because they threatened me not to tell anyone anymore and else they will kill me and harm my family members.”
·     He did not move to any other city: “Did not move to any other city as most of my life was spent on the ship but the conditions were still extremely unsafe in Khyber Pakhtunkhwa Province.”
·     His fears if he returns to Pakistan: He will be harmed, he will face loss of life/security. “My father tells me they are still getting threat calls on their home phone. Every time they call from a new number. They keep on warning my father that we won't spare your son if he keeps on reporting on our people.”
·     When asked if the authorities will protect him, he said: “I do not believe the authorities will protect. They did not protect or take serious actions when I was there and we are still getting threat calls which is why I do not have any confidence in them.”
·     When asked why he is not able to relocate, he stated: “Very difficult as we have lived there for generations, we own property there and so cannot relocate”.
Supporting documents
The applicant’s supporting documents[3] include identity documents: identity pages from passports (current version will expire in 2026); his Pakistan National ID card; ‘Seaman engagement and discharge record’ card and ‘Seaman Additional Information’ card, as well as 5 electronic images in original language and 7 electronic images of unofficial translations[4]:
·     4 pages of undated threat letter(s) stated to have been written by members of the Taliban.
·     A letter written by the applicant to the Ghazi Police Station dated [in] May 2001 (stamped) stating that he is working to keep his home running, doing hard work, but some social enemies who identify themselves as Taliban tease him every day and they also give him death threats. Please take action against them.
·     A document stated to be a First Information Report (FIR) dated [in] May 2001 which states “In this FIR it is stated that [the applicant] is threatened by some social enemies. According to these threats this FIR was written.”
[3] Provided before, during and after the interview.
[4] One was a repeat.
There are no non-disclosure certificates on the Departmental file.
Department interview
The applicant attended an interview on 25 January 2019. Some of the evidence given at the interview is recorded by the delegate in the decision record, which is set out as follows (other relevant evidence given at interview is referred to later in this decision record and was put to the applicant pursuant to s.424AA of the Act when required):
·     The events were recorded as occurring in 2011 in his protection visa application form, however this should have been 2001. He provided a scanned copy of a First Information Report (FIR) relating to threats by the Taliban dated [in] May 2001 (with informal translation) (referred to in paragraph 5 above)
·     When he began receiving threatening calls he disconnected the phone after 4-5 days. Then “night letters” arrived.
·     He added a claim that his mother was pushed off the roof of their family home by the Taliban in 2001/02, injuring her. He fled to Karachi.
·     He claims the date that he was beaten up by Taliban members was in 2003, and it occurred at a local market. He had returned to his village for four days. He returned to Karachi.
·     He became a ship crew member in 2007, and has been employed by [Employer 1] since 2014.
·     During his career as a seaman he has travelled to [various countries] as a crew member. He has never applied for refugee status; he never needed to do so.
·     He didn’t jump ship previously in Australia because he didn’t have any issues previously.
·     He has stayed away from his family home, instead he stayed in budget hotels in Karachi between shipping contracts to avoid the Taliban.
·     His family continue to reside in Ghazi village, district Haripur, Swat, Khyber Pakhtunkhwa Province.
·     He is unmarried because of his issues with the Taliban.
·     The last time he went back to his home village, he stayed just for a night or so, “maybe at his sister’s or a friend’s [place]”.
·     He has no relatives in Punjab province or Karachi.
·     He has also been criticised by [Mr A]’s brother, [Mr C], also a Taliban member, for drinking beer. If the applicant reports him, he’ll be killed, and his family harmed.
·     He was not a member of any Village Defence Committee (VDC).
·     He managed to survive so long in Pakistan, between 2001 and 2018, despite being a Taliban target, by staying in Karachi and working on ships. He also moved around a lot.
·     His brother, who lives in Swat, has not been targeted because he is religious and has a beard.
·     He cannot relocate in Karachi because the Taliban have networks there and everywhere else in Pakistan. Just recently, a man and his three children were killed in Lahore.
The delegate’s decision record
The delegate noted that the applicant has supplied his current and previous passports, his NIC and Seaman’s Service book, all stating his birthplace as Swat, Khyber Pakhtunkhwa Province. In addition, the information he provided at interview regarding his birthplace and background was commensurate with that expected of a person born and raised in Ghazi village in the province. Based on the information above the delegate accepted the applicant’s identity, birthplace and background. Further, the delegate accepted that the applicant was employed as a crew member from 2007 until September 2018. He accepted that the applicant had a passive anti-Taliban opinion.
The delegate was prepared to accept the applicant’s assertion that the reference to 2011 in his written claims was a typographical error, and that the applicant was claiming that the adverse events had occurred since 2001. The delegate found his accounts of the beating and his mother being pushed off the roof to be unconvincing. The delegate noted that in between shipping contracts since 2007, the applicant was able to return to his home village; the delegate did not accept the applicant’s assertion that he has been living in hiding in Karachi since 2003, moving hotels every second day as he claimed at interview. The delegate considered that the applicant’s multiple and continual returns to Pakistan, given he claimed to have informed on his neighbour in 2001, for extended periods of time, indicates that the applicant did not have a profile, and indicates that he did not have a fear of harm (including a fear for his life). The delegate noted that he had travelled 14 times to Australia and that he could have jumped ship on any of those occasions and sought protection.
The delegate considered that the claim that he moved to Karachi to avoid the Taliban was a fabrication. The delegate considered the applicant’s claim to have been criticised for drinking beer in light of country information that indicates that alcohol is widely consumed in Pakistan and Huduud laws are not enforced. The delegate did not consider there to be a well-founded fear of persecution in this regard.
The delegate did not accept that he had an anti-Taliban profile of any sort. The delegate referred to country information noting the ease of obtaining fraudulent documents in Pakistan, including FIRs, and stated that he would not be able to place much weight on the documents supplied by the applicant.
The delegate found that the applicant was never targeted by the Taliban or any other fundamentalist organisation, and his claims were not credible. When stating that relocation was not an option for him, the applicant claimed that the Taliban have networks everywhere and so he would not be safe in Karachi. The delegate referred to country information and noted that the Taliban does have a presence in Karachi and they have in the past targeted their enemies there, but noted that the security situation has improved significantly since the implementation of the National Action Plan (NAP) in 2014.
The delegate noted the long-term security trends in Pakistan show improvements, although large-scale terrorist attacks and smaller scale incidents continue to occur. Since 2007 the Pakistan military has implemented relatively successful military operations in various parts of the country aimed at clearing areas of anti-state militants and militias associated with various political parties.
The delegate did not accept that the applicant faced a well-founded fear of persecution nor a real risk of significant harm.
The Tribunal
The applicant was represented by the same registered migration agent in relation to the review to the Tribunal. The applicant provided to the Tribunal a copy of the delegate’s decision record with his application for review. Upon lodgement of his application for review, the applicant was requested to provide any supporting documents or submissions to the Tribunal as soon as possible. In the hearing invitation he was also requested to provide any supporting documents or submissions 7 day prior to the hearing. No documents were received prior to the hearing.
The applicant appeared before the Tribunal on 13 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The Tribunal was informed just before the hearing that the agent would like to attend by telephone instead of in person. However, when the hearing was about to start, the Tribunal was informed that the agent had some issues and would not attend the whole hearing. The applicant told the Tribunal that he agreed with this. The Tribunal contacted the agent who confirmed this and said that he could join the hearing whenever the Tribunal wished him to do so. The Tribunal said to the applicant that he could ask for a break at any time to speak to the agent, or he could request at any time that the agent be contacted. Breaks were provided and the Tribunal suggested that the applicant contact his agent.
Concerns about the applicant’s evidence and claims were raised with the applicant throughout the hearing, others were raised towards the end of the hearing. It is not the role of the Tribunal to decide when an agent should be present during the hearing, and the Tribunal was not privy to the arrangements between the applicant and the agent concerning the agent’s attendance at the hearing. However, towards the end of the hearing, noting that it was going to put information to the applicant pursuant to s.424AA of the Act, the Tribunal called the agent, who agreed to join the hearing.
When the Tribunal put the s.424AA information to the applicant, he said that he would like to speak with his agent before commenting or responding on the information. The Tribunal suggested that there be a break to allow the applicant and agent to discuss the information. After the break, the agent responded to the information on behalf of the applicant.
One of the responses related to the applicant’s home area of Ghazi and the agent said that the applicant wanted further time to produce information about his home area. The Tribunal noted that the applicant had already had plenty of opportunity to provide information about his home area to the Tribunal: he had been reminded when his application for review was initially acknowledged by the Tribunal that he should provide any documentation as soon as possible, and when the hearing invitation was issued, he was requested to provide all relevant submissions and documentation one week prior to the hearing. However, the Tribunal agreed to allow further time for the applicant to provide further information about his home area. No further information was provided to the Tribunal, nor was any request for an extension of time made.
Evidence at hearing
Some of the applicant’s evidence at hearing was as follows:
The applicant told the Tribunal that his application form and his evidence to the delegate were all true and correct and there were no mistakes.
He has been working in Australia since his arrival, once he had received permission to work, undertaking [specified work] in a [workplace]. He also works [in food delivery]. He sends money home to Pakistan.
He was born at [location], in the village Ghazi, in District Haripur. He lived in the village with his parents and 4 siblings:
·     Sister [Ms D], who is married and lives in Abbotabad (adjoining district), about 50 km away from the family home (1.5 hours drive).
·     Sister [Ms E], who is married, lives in Ghazi; she has always lived there.
·     Brother [Mr F], who lives in Ghazi. He has always lived in Ghazi but due to the nature of his work ([Occupation 2]) he travels to [Country 1] or [Country 2]. He has been working like this for the past 15-16 years [since about 2006]. Mostly he is in Ghazi.
·     Brother [Mr G] does [Occupation 2] work and has lived in [Country 2] for almost 20 years. He returns to visit Ghazi every one or two years.
The applicant said that he doesn’t have all the threatening letters that were delivered but his sister gave him some. He said the letters were delivered to the house and when he was working on the ship, and he came to know about new letters. The Tribunal asked him what was in the letters that caused him fear and he said they are still referring to his complaint that he made about them. He claimed that the complaint was made in 1998, and it was not that his neighbour who was a member of the Taliban, but Taliban were visiting his neighbour. He said that they will not spare him, they will kill him.
The Tribunal asked the applicant what he fears would happen if he returned to Pakistan and he responded that he only sees death, maybe not immediately, maybe after 1 year or 2 years, from the Taliban. He claimed that once the Taliban consider him an enemy this will continue, sometimes into next generation. The reason why he fears the Taliban is because he is targeted by them because he reported them. When asked if there was any other reason or concern or worry about going back to Pakistan and he said the only reason he is not going back is because he is targeted because he reported them.
The applicant told the Tribunal that apart from the threatening letters and the attack on him (which he now claimed occurred in 2017), nothing else happened to him in Pakistan.
At another time he said when asked whether there was any other reason why he was afraid of the Taliban (apart from him having made a complaint about the Taliban having visited his neighbours), he said that he is not regular in praying and fasting and they do that regularly, so he was scared.
The Tribunal put to the applicant that if the Taliban wanted to take revenge on him, he had numerous family members they could have just targeted. In response the applicant said that his two brothers agree with Taliban, and they live life like that. The Tribunal noted they had travelled and lived in [Country 2]; he said that is where their jobs are.
He said that there is nothing else that happened to him that he has not told the Tribunal about.
The applicant produced a number of documents at the hearing, including his ID card and a penal certificate from the District Police Office, Haripur, typed in English (showing no adverse information or convictions against him). He also produced:
· A slightly different unofficial translation of his letter to the Ghazi police dated [in] May 2001, (with the same untranslated version).
· An unofficial translation of an undated letter making threats to the applicant (with the untranslated version), similar in tone to the 4 pages of letter(s) produced by the applicant to the Department.
Further evidence is referred to below.
Consideration of claims
Country of reference
The applicant produced his most recent passport issued by the Pakistan authorities to the Tribunal. The Tribunal accepts that the applicant is a national of Pakistan, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Pakistan.

The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Concerns as to the credibility of the applicant’s claims
Relevant law about claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that 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 the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
As Kirby J observed in Dranichnikov v MIMA:[5]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[6]
[5] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.
[6] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].
The Tribunal has a number of concerns with the case the applicant has advanced, on the basis of his changing claims, inconsistencies in his claims, and inability to discuss matters relevant to his claims. The Tribunal’s concerns are set out below.
Firstly, the applicant changed his evidence as to his background and claims throughout the protection visa process in a number of respects, as set out below.
Different dates as to when he first made a complaint about his neighbour which led to his problems starting: In his protection visa application form the applicant claimed that he made a (single) complaint about his neighbour who was a member of the Taliban and he started to get harassed and threatened. This occurred in 2011. He didn’t dare make a further complaint to the authorities about these actions. The applicant told the Tribunal, as noted above, that everything in his protection visa application was true and correct, and there were no mistakes.
At interview, however, he produced an image of an FIR dated [in] May 2001 and said that this was the complaint he made and that the incidents occurred in 2001. The applicant told the Tribunal, as noted above, that everything he told the delegate was true and correct, and there were no mistakes.
However, he told the Tribunal that members of the Taliban visited his neighbour in 1998, and he attended the police station, in person, with his friends, to report this (in 1998), and then the whole village seemed to know about his complaint and he started to get threats. He then went into hiding, in his area, sometimes in Ghazi, sometimes in Haripur, sometimes in another village close by. Then, in 2001, he made a written complaint to the police asking them to take action.
The Tribunal was concerned that the dates that the applicant reported his neighbour to the police (and the details) were changing. The Tribunal put the differences to the applicant and his only response was to say that the whole episode started in 1998. This however is inconsistent with his application form and his evidence to the delegate[7] as to when the applicant reported his neighbour. The applicant did not offer any explanation for the changes in dates from 1998, 2001 and 2011.
[7] As set out in the delegate’s decision record provided to the Tribunal by the applicant
The Tribunal’s concerns with his new claim at hearing that he had made 2 complaints (to the police), one in person in 1998 which had led to the commencement of the adverse attention, and then a second time, in writing, in 2001 (because he was seeking legal protection), were heightened because, as noted above, the applicant stated in his protection visa application form that once he had reported his neighbour (in 2011), he was warned not to make any further report to the authorities, and he “did not inform any authorities because they threatened me not to tell anyone anymore and else they will kill me and harm my family members.”
When discussing his new claim, the Tribunal was also concerned with his evidence as to why it took 3 years for him to make a written complaint after the oral complaint, given he told the Tribunal that he spent this whole time in hiding.
In response he said that he made the written complaint 3 years later because “they” were harassing his parents, they were going to his house and making threats. The applicant had, however, given evidence to the Tribunal before this that the only threats received were in the form of threatening letters; and although he had been given an opportunity to tell the Tribunal about any other threats, he had not claimed that there were any other threats; in particular he did not claim when asked about what had happened, that the Taliban had visited his home and had harassed and threatened his parents. The Tribunal put to him that his evidence about the threats received had changed. Although he was given an opportunity to respond to this concern with his changing evidence, he did not engage, he just said that he received threatening letters.
The Tribunal considers that if there were threatening visits to his family’s house by the Taliban, he would have mentioned this to the Tribunal when it asked him about the threats received and whether there was any harm to his family members (to which he responded, as discussed further below, that it was only about him, his family was not involved). The Tribunal also considers that if there was a reason for him omitting to tell the Tribunal about the threats to his parents, he would have been able to explain this reason. The Tribunal considers that this undermines his explanation that there were threats to his parents which was the reason why he made a formal written complaint in 2001.
The Tribunal put to the applicant that the provisions of s.423A of the Act, noting that if he did not have a satisfactory reason for not mentioning to the Department that everything started in 1998 with an oral complaint, and then he made a second (written) complaint, then the Tribunal will be required to draw an adverse inference unfavourable to the credibility of the claim that everything started in 1998. In response he said he said he can only say that he was mentally very disturbed when he came here, and he probably missed this point. The Tribunal accepts that the applicant was in detention for some days when he came here and that this could be a distressing experience. However, it notes that he gave two different dates (2011 then 2001) while his case was being considered by the Department; his new claim that everything started in 1998 is the 3^rd date. Given that he had a number of opportunities to tell the Department that everything started in 1998 (in his written materials, at interview[8] and including when his agent provided additional documents to the Department on his behalf), and that he now says that this is the crucial date, from which all of his claims flow, the Tribunal is not satisfied with his explanation for not having made this claim when his case was before the Department. The Tribunal does not accept that the applicant has a reasonable explanation as to why his claim that everything started in 1998 with an oral complaint to the police was not raised before the primary decision was made. Therefore, the Tribunal draws an adverse inference about this new claim. Even if it did not, however, draw an adverse inference by operation of s.423A of the Act, the Tribunal considers that the difficulties with this claim, and generally the changing dates and details about his reporting, undermine the credibility of the claim that he reported his neighbour/ the visitors to his neighbour.
[8] As set out in the delegate’s decision record, he stated at interview that the correct date was 2001.
The applicant claims that all of the adverse attention he suffered was due to his original reporting of his neighbour / his neighbour’s visitors. The Tribunal considers that he has changed the date significantly as to when the complaint occurred and the adverse attention started. This undermines his claimed complaint and his credibility. The Tribunal’s concerns were heightened because although his protection visa application states that his neighbour was a member of the Taliban being visited by suspicious people whom he assumed were members of the Taliban, he told the Tribunal that it was not that his neighbour who was a member of the Taliban, but that Taliban were visiting his neighbour.
Changing evidence as to whether the problems started as a result of reporting to the police or the army: The Tribunal was concerned that the applicant’s evidence changed as to the reason why he suffered adverse consequences from the Taliban, and had to go into hiding for almost 20 years in his country. In this regard, he told the Tribunal that the problems occurred when he made the oral complaint to the police; the whole village knew and then his problem started. This, however, was inconsistent with his evidence to the delegate. He told the delegate that when he reported on his neighbour to the police, there were no consequences. The consequences only arose when he reported it to the army; that is when everything started to happen. The Tribunal put this to the applicant pursuant to s.424AA of the Act, noting that this inconsistency undermined his claims. In his s.424AA response, however, the applicant only said that he misunderstood the question. The applicant did not explain which question he misunderstood (and he told the Tribunal it was the police, he did not say he had complained to the army). The applicant also did not explain in his response whether it was the police or the army (or both). His evidence to the Tribunal specifically referred only to reporting to the police (and the FIR he relies upon is issued by police), whereas his evidence to the delegate distinguished the army and the police. The Tribunal does not find his explanation to be persuasive. It considers that his inconsistent oral evidence at interview and at hearing as to whether he received adverse attention after reporting to the army, versus whether he received it after reporting to the police, undermines his claims of adverse attention and his credibility.
The Tribunal’s concerns were heightened because in his protection visa application form he only claimed to have reported to the army (not to the police).
Changing evidence as to whether threatening phone calls were received: The Tribunal was concerned as the applicant’s evidence as to the nature of the threats he received was changing and inconsistent.
In his protection visa application form the applicant claimed that he had received threats via telephone calls. He also told the delegate[9], that he started to receive threatening phone calls, so he disconnected the phone. However, when the Tribunal asked the applicant about the phone calls, he said [Mr A]’s family telephoned him and told him the police visited their house because he had complained about them. The Tribunal said that this was not a threat, it was [Mr A]’s family telling him the police had come. The applicant did not disagree; he did not say that there was anything threatening in terms of content or otherwise about the phone call (such as an implied threat from the call itself). The Tribunal asked him what the threat was, however, he did not maintain that he had received any threatening phone calls; instead his response was to say that he had received threatening letters.
[9] As set out in delegate’s decision record
The Tribunal put to him that he had not claimed to have received any phone calls that were threatening, which was inconsistent to his other evidence given during the course of his protection visa application. The Tribunal asked the applicant if he wanted to say anything about that and he said no.
The Tribunal has considered whether the applicant did not understand the word “threatening”, however it notes that in his protection visa application form he specified that he received regular threatening phone calls which he described as containing threats to kill him and warnings not to report their members to any authority (indicating that he was aware of the meaning of “threatening”). The Tribunal is not persuaded that the applicant has offered an explanation as to why his evidence changed from receiving multiple threatening phone calls (when his case was before the Department) to receiving one phone call that he did not maintain was threatening, and thus his evidence to the Tribunal was that he received no threatening phone calls. The Tribunal considers that his changing evidence undermines his credibility and his claim to have received threatening phone calls.
Further, the applicant gave inconsistent evidence as to his reason for going into hiding. He told the Tribunal that the threats he received were through threatening letters. When asked how many were received, he said about 4-5 [from 1998 to 2017]. When asked what the letters said, he said that he will face grave consequences for what he has done about them. If they find him they will cut him into pieces and throw away the pieces. He is going against his Taliban brothers, and he should be ashamed of himself. That is the only content of the letters, nothing else was said. The Tribunal asked the applicant why he went into hiding, and he said because he had received the threatening letters. He then said, however, that he only received the threatening letters when he was in hiding. The Tribunal put to him that this did not make sense, it was trying to understand why he first went into hiding, and it could not be he went into hiding when he received a threatening letter, if he only ever received threatening letters after he was in hiding.
The applicant did not offer an explanation for this concern, he just said that these people were very dangerous, he was scared of these people and he wanted to save his life. The applicant had, as noted above, confirmed to the Tribunal that nothing further had happened to him other than the receipt of threatening letters and being beaten up (in 2017). Seeking to ascertain why he went into hiding (in 1998), the Tribunal asked why he was scared of these people (the Taliban), he then said it was because of the news on TV. The applicant’s evidence was confusing, because it indicates that when he went into hiding in 1998 he had not received any threatening letters (because they were only ever received after he was in hiding), but at the same time he claimed that the threatening letters were the reason he went into hiding. Further, if he had not received any threatening letters (and thus did not have a reason to be afraid), it is difficult to understand why he would go into hiding just because of the TV news (and no other personal reason). He did not suggest there was any other reason for going into hiding; when the Tribunal asked whether there was any other reason for him going to hiding, he said no.
The Tribunal considers that the applicant was unable to offer a credible reason for going into hiding, and that his evidence in this respect undermined his claim of going into hiding, and his credibility.
The applicant’s evidence as to the contents of the threatening letters was inconsistent in a number of respects with the letters he produced: The applicant had produced images of 4 pages of letter(s) to the Department and another handwritten letter (attested as a true copy) to the Tribunal. As noted above, when asked at hearing what the letters said, the applicant said that they only said: he will face grave consequences for what he has done about them; if they find him they will cut him into pieces and throw away the pieces; he is going against his Taliban brothers, and he should be ashamed of himself. When asked, he told the Tribunal that nothing else was in the letters.
The letters themselves however, stated that they will not leave the applicant alive, he speaks nonsense about the Taliban, he is forbidding youngsters from joining the Taliban, he is thus a disbeliever, they know where he lives and what he has done and the only way to spare his life is for him to invite young men to join the jihad in Afghanistan, and for him to join it himself. He has to give them money, they know he has earned a lot of money. The Tribunal asked the applicant what the letters from the Taliban wanted him to do and he said the letters don’t want anything from him, they just say they want to kill him. The Tribunal asked again what the letters wanted him to do or to not do, and he said nothing else. The Tribunal asked if the letters said anything else apart from that they want to kill him and he said no. The Tribunal put to him that this is not true and it would think that he would know what the letters say. The Tribunal read to him from the letters he had produced to the Department and the Tribunal, to the effect that he has to invite young men to join the jihad in Afghanistan, he has to also join, he has to give them money, he has been forbidding boys to join the Taliban, they know he has earned a lot of money. In response the applicant said that he thought the Tribunal was asking him what kind of threats he had received. The Tribunal does not find the applicant’s explanation to be persuasive, noting that he had been given a number of opportunities to tell the Tribunal the contents of the letters. The Tribunal would expect that it is reasonable that someone who had been receiving threat letters like the applicant would be able to recall the details of what was demanded by him through these letters. The Tribunal consider that the applicant’s inability to tell the Tribunal the differing threats and demands contained in the letters he claims to have received undermines his credibility, the reliability of the letters, and his claims to have received threatening letters.
Inconsistencies concerning when the applicant was attacked: In his protection visa application form, the applicant claimed that 2- 3 weeks after he reported to the army (2011), he was beaten up (when he was going to his sister’s home in a nearby village on his motorbike). At the delegate’s interview he claimed that he was beaten up by Taliban (at a local market) in 2003[10]. However, when giving evidence to the Tribunal, he claimed that he was attacked when he was in the adjoining district of Mardan in 2017 when there was a large crowd and he escaped. The Tribunal asked the applicant why he was attacked in 2017 and he said that his area is peaceful but that area (in the neighbouring district Mardan) is rough. He then said that there are a lot of Taliban in that area, and it was a targeted attack on him. He claimed that he has a mark on his [body part], he didn’t see how it was inflicted, perhaps with a knife; he also heard shots fired.
[10] As set out in the delegate’s decision record provided to the Tribunal by the applicant

The Tribunal put to the applicant that the dates as to when he was attacked had changed throughout the process. The applicant did not, however, engage with this concern when responding; he just said in 2017 he went to Mardan from the ship and that is where he was attacked. The Tribunal asked if he wanted to say anything else about the inconsistency in the dates when he was attacked and he said no. The Tribunal notes that the applicant provided no explanation for the significant differences in the dates that he was beaten up. The applicant did not claim to the Tribunal that he had been beaten up on separate occasions (which could have explained the different dates); he maintained that he had been beaten up once, but did not offer an explanation as to why there was such a significant variation in the dates that he was beaten up.
The Tribunal also put the provisions of s.423A of the Act to the applicant in relation to the new claim that he was beaten up in 2017. His response was the same as set out in paragraph 49 above, namely that he was mentally very disturbed when he came here, and he probably missed this point. The Tribunal’s consideration of this response is set out in paragraph 49 above. Further, the Tribunal notes that he gave two different dates (2011 then 2003) while his case was being considered by the Department; the date of 2017 is the 3^rd date, and given that he had a number of opportunities to tell the Department that he was beaten up in 2017 (in his written materials, at interview[11] and including when his agent provided additional documents to the Department on his behalf), and that he now says that this was a significant event which contributed to him deciding to leave the ship to claim asylum, the Tribunal is not satisfied with the applicant’s explanation for not making this claim when his application was before the Department. Therefore, the Tribunal draws an adverse inference about this new claim. Even if it did not, however, draw an adverse inference by operation of s.423A of the Act, the Tribunal considers that the difficulties with this claim, and generally the changing dates as to when he was attacked (and the different details of the attacks), undermine the claims that: he was attacked in 2017 which led to him wanting to claim asylum, that he was attacked at all, and his credibility.
[11] As set out in the delegate’s decision record, he stated at interview that the correct date was 2001.
Changing evidence as to whether any of his family members were harmed: The applicant claimed to the delegate at interview that his mother had been pushed off the roof of the family home by the Taliban in 2001/2002[12]. However, when the Tribunal asked whether anything happened to his family, he responded no, because he was the only one involved, his family were not involved in this.
[12] As set out in the delegate’s decision record provided to the Tribunal by the applicant
The Tribunal put to the applicant that his evidence that nothing happened to his family undermined his claim to the delegate at interview that his mother had been pushed off the roof by Taliban. In response the applicant claimed that she is still paralysed, and this was done by [Mr A]’s mother with the Taliban. The Tribunal put to him that he was now changing his evidence as he previously said nothing had happened to his family members. In response he said that he took the question as asking whether someone had been killed in the family. The Tribunal does not accept this explanation. It considers that his response (he was the only one involved, his family were not involved in this) does not suggest that this was the question. Further, the Tribunal also noted that he had been given opportunities during the hearing to tell the Tribunal anything else that had happened, yet he had not claimed that his mother had been paralysed at the hands of the Taliban. The Tribunal considered it reasonable to expect that he would have told the Tribunal about this if it had occurred.
The Tribunal considers that his assertion that he was the only one involved, his family were not involved, when asked when anything had happened to his family, undermines his claim that his mother had been pushed off the roof by the Taliban and her neighbour, leading to her paralysis. The Tribunal considers that this also undermines his credibility.
Secondly, the applicant gave inconsistent and changing evidence as to where he lived, including as to where and how he was in hiding:
·     In his protection visa application, he claimed that he had lived all of his life from birth to September 2018 in District Haripur Tehsil, Ghazi. Although he provided details in his form and in his seaman record indicating that he had spent time away from Pakistan for his work as a seaman, he only recorded living in a single location in Pakistan. This is despite the form asking him to state details of previous addresses including those that were temporary. Further, when asked in the form whether he attempted to relocate, he stated that he did not move to any other city: “Did not move to any other city as most of my life was spent on the ship but the conditions were still extremely unsafe in KPK.” Further, he indicated that he could not relocate because: “Very difficult as we have lived there for generations, own property there and so cannot relocate”. His protection visa application, which he told the Tribunal was true and collect, undermines any claim to have been in hiding outside of Ghazi.
·     He told the delegate at interview, however, that ever since 2001/3 he had been living in hiding in Karachi, moving hotels every second day: he managed to survive between 2001 and 2018 despite being a Taliban target, by staying in Karachi but moving around a lot.[13]
·     His evidence to the Tribunal, however, was different to both his protection visa application form and his evidence to the delegate. The applicant said that he first worked as an [Occupation 3] while he was still at school (compared to his claim in his protection visa application form that he worked in a restaurant) and then he had problems so he escaped to Karachi. The Tribunal asked for clarification, and he said that when he was [age] years he learned to be an [Occupation 3] for about 9 months with his maternal uncle. Then, between 1998 and 2001 he was in hiding, in his area (sometimes in Ghazi, sometimes in Haripur, sometimes in another village close by). He then said that from 2001 he lived mostly in Karachi. He worked in hotels in [Neighbourhood 1] (in Karachi) and he would stay in those hotels. When asked for details about the hotels, he said that he worked in 3 hotels for 3-4 years (until 2001-2004 or 2005). After that, he worked in Karachi on local fishboats for a few years (until 2007) and then he joined the shipline in about 2008. For 10 years until 2018 he worked on the ships, and every year he would return to Pakistan, and he would spend 2, 3 or 6 months in Karachi. At this time, he would stay mainly in [Neighbourhood 1], sometimes staying with a friend, or at his uncle’s place, or sometimes he would rent premises in Karachi. While residing in Karachi he would occasionally visit his home briefly, in hiding. He said that after the attack happened in 2017 he did not go to his village or his area.
[13] As set out in the decision record provided to the Tribunal.
The Tribunal put to the applicant that his application form indicates that he only ever lived in Ghazi except when travelling out of Pakistan, he did not provide any other temporary addresses, and the form does not state that he lived in Karachi or worked in hotels in Karachi, nor that he worked as an [Occupation 3] in Ghazi nor that he had any other employment other than in a restaurant in his local area, and then as a seaman. The applicant did not engage with these inconsistencies: he said if you change your address you need to change your ID card and your passport so I never changed my address officially in Pakistan. The Tribunal put to him that it was asking why he didn’t refer to any other addresses in his protection visa application form and he said he was not aware he could write this. The Tribunal had already put to him that the form specified that any temporary addresses should be listed; his response did not otherwise deal with the inconsistencies (including, for example, why he claimed in his form not to have relocated, in contrast to his claims to both the delegate and the Tribunal that he relocated to Karachi where he spent many years).
The applicant said that he could write to the Tribunal and give a list of addresses where he had resided. Although, as noted above, the applicant was given further time to produce documents after the hearing, he did not provide a list of addresses. His claim that he could do so suggests that he could have provided a list of addresses when he was preparing his protection visa application form.
The Tribunal again put its concern that he did not claim to have changed addresses, relocated or to have lived in hiding when describing his addresses in his protection visa application form. In response he said that he didn’t want to disclose that he had moved to other areas; the Tribunal put to him that this was difficult to accept, given this was his protection visa application form, and he had referred to other information in it. The Tribunal put to him that he can read English and he agreed. He then said that he didn’t complete the application form; the Tribunal noted that it was stated in the form that he had completed it with the assistance of his migration agent; the applicant then changed his evidence and said that there can be mistakes but whatever he has said is the truth. Concerning why he didn’t previously disclose his work he said that when he worked as an [Occupation 3], he had no identification, but he did work in Karachi hotels.
The Tribunal did not consider the applicant’s responses to these inconsistencies to be persuasive. It is reasonable to expect that if he had been in hiding and had relocated for many years, he would not have made claims contrary to this in his protection visa application. It considers that his evidence and the lack of persuasive explanations undermine his credibility and the claims that he was in hiding.
Further, the Tribunal put to the applicant that his evidence to the delegate and his evidence at hearing, about how and where he lived in in Karachi, was inconsistent: living in 3 hotels in Karachi during a 3-4 year period (as told to the Tribunal), compared to moving around a lot in Karachi, changing hotels every second day (as told to the delegate). In response the applicant said that he didn’t have to move around because he was away from his area. This undermined his claim to the delegate that he had needed to change hotels in Karachi every second day (for years) to avoid the Taliban. The Tribunal put to him that nothing happened to him in Karachi, and he repeated that he was away from his home area.
Despite his claim that he was safe in Karachi while living there for significant periods of time for about 15 -17 years, the applicant then said that he can’t stay in Karachi for a long time because someone can find him. The Tribunal noted his claim that whenever he returned from the ship he would spend between 2- 6 months in Karachi every year, and no one found him. He responded that the fear is always there that someone will find him.
The Tribunal considers that his inconsistent and changing evidence about where he lived, and whether or not he relocated to Karachi, and whether or not he was in danger in Karachi, undermines his credibility and claims that he has been targeted and living in fear since 1998.
The Tribunal’s concerns are heightened because the applicant’s claim to have had an uncle and to have stayed with him in Karachi is inconsistent with his evidence to the delegate[14] that he had no relatives in Punjab or Karachi.
[14] As set out in the decision record provided to the Tribunal.
Thirdly, the Tribunal had concerns with the applicant’s evidence about the dangers he claimed to have faced, noting he remained in Pakistan from 1998 to 2007, and that from 2007 to 2018 he returned continuously to, and stayed in, Pakistan, only claiming asylum in 2018.
The applicant claimed that in the early letters (1998) the Taliban had threatened to “chop him up” into pieces, and that this had caused him to go into hiding. He claims to have spent the next period of almost 20 years in hiding, only ever able to visit his home village briefly and while hiding, and having to move every 2 days when living for years in Karachi. With this background, the Tribunal was concerned with the applicant’s claim to the delegate at interview that he didn’t jump ship previously (and claim protection) because he had “no issues” previously (and although as a seaman he has travelled to [various countries] as a crew member, he has never previously applied for refugee status as he never needed to do so). The Tribunal put to the applicant that his claim to have had no issues prior to 2018, and his failure to have left the ship and claimed asylum earlier undermines his claims of the significant difficulties he faced ever since 1998. In response he said that he claimed asylum now because he is exhausted. The Tribunal does not find this explanation persuasive. While acknowledging it is now his claim to the Tribunal that he was attacked in 2017 and that this event, in combination with new threatening letters he became aware of on the ship (he said the letters only said We won’t spare you, we will kill you, and they were written because he had made the complaint in 1998) were the reason why he decided to jump ship and claim asylum, it considers that if, prior to this he had received such threatening letters and had spent years in hiding in Pakistan, he would not have said that he did not have issues prior to 2018, nor that he had no reason to claim asylum until 2018.
The Tribunal’s concerns with the new claim of attack in 2017 are referred to above.
The Tribunal noted that he had had plenty of opportunity to claim asylum given that he had been travelling around the world (and he said he had been to European countries) ever since 2007, and he had been to Australia 14 times since 2014. The Tribunal put to the applicant that he had claimed that in the early letters (1998) they had threatened to “chop him up”, so it did not understand why he didn’t claim asylum earlier. In response he said he has now decided he has a fear. The Tribunal put to him that his delay in claiming asylum earlier, despite having numerous opportunities to escape his country, undermines his claim that all this started in 1998. He agreed that he had had many opportunities, he said it is now that he is exhausted. The Tribunal put to him that this was difficult to accept, noting that it is his claim that he has been under threat since 1998. He said yes it started in 1998 but there is a stage when a person gets tired or exhausted. The Tribunal does not find the applicant’s explanations to be persuasive. It considers that if his circumstances were as claimed (the Taliban had threatened to “chop him into pieces” since 1998), and his life in Pakistan (where he spent many years thereafter) was spent in hiding, fearful of his life, then it is reasonable to expect that he would have claimed asylum earlier, including on one of the 14 occasions he had come to Australia previously, or at one of the many other countries to which he had travelled. The Tribunal considers that his failure to do so earlier undermines his credibility and his claim to have been so fearful that he had to live in hiding whenever he was in Pakistan since 1998.
Fourthly, the applicant responded to a concern that he remained in Pakistan by giving evidence that was inconsistent with his protection visa application form. The Tribunal had put to the applicant that he claimed to have been living in hiding in Pakistan since 1998 (almost 10 years before he got a job as a seaman); in the circumstances, it was difficult to accept that he did not also go off to [Country 2] for work like his two brothers. In response the applicant claimed that his brothers tried very hard to get him a visa but they were not successful. The Tribunal put to him that this was inconsistent with his protection visa application form. He had been asked whether he had previously ever applied to enter a country other than Australia (response: no) and whether he had ever been refused entry to any other country (response: no). The Tribunal put to him that he would not have answered no if, as he was not claiming, he had tried for a visa many times to [Country 2] but that all attempts had been unsuccessful. In response he said that it was his brothers who were trying to get a visa for him. The Tribunal put to the applicant that if they were applying for a visa for him, then this is his application, yet he had not declared this. His response did not engage with this concern: he said that at that time he applied and now he is here. The Tribunal does not find his response to be persuasive. The Tribunal considers that his evidence indicates that he made up a response to the Tribunal’s concern that he could have travelled to [Country 2] like his brothers if he was facing the threat of being chopped into pieces by the Taliban, which undermines his credibility.
Fifthly, the Tribunal was concerned that other claims by the applicant appeared to be implausible or inconsistent:
·     The Tribunal put to the applicant that it is his claim that in the letters since 1998 the Taliban threatened to chop him up into pieces, he claims to have taken these threats extremely seriously, yet almost 20 years later he was still, continually, returning to Pakistan, still visiting his village, and he was still alive. The applicant did not engage with this concern; he responded that this is why they were after him in 2001 and that is why he was attacked in Mardan (in 2017). The Tribunal considers that if these claims were true, he would have been able to explain why he continued to return to (and reside in) Pakistan, and why he had not been harmed (other than a single claimed attack) in almost 20 years. The Tribunal considers that, had the Taliban been intent on harming him over such an extended period, and if, as he claims, they have the ability to find him all over Pakistan, it is difficult to understand why he did not experience more than one attack, and that they did not otherwise locate him. Further, it was difficult to accept that their continuing interest in him over what appeared to be a minor issue according to his claims (that he once, in 1998, reported visits of Taliban members to his neighbours). While the Tribunal accepts that an applicant may not know the motive for the actions of others, and that implausible events do occur, when it considers the other issues with his credibility, it remains concerned with this evidence which further undermines the credibility and claims of the applicant.
·     The Tribunal put to the applicant that if the Taliban had threatened to chop him up into pieces, it did not understand why he ever returned to his village; he said he went in hiding just to see his mother. The Tribunal put to the applicant that if the Taliban were as powerful as he claimed, such that they could have found him all over Pakistan, it would be reasonable to expect that they would know about his visits to his home village, especially as it was his neighbour who had the association with the Taliban, and they could have informed the Taliban when he was home. He said in response that this could have happened, but the Taliban don’t live in his village, they just visit his village. While the Tribunal understands the applicant’s desire to see his mother, it considers that other arrangements could have been made if there was a risk to his life.
·     The Tribunal notes that the applicant had claimed to the delegate that he had been criticised by his neighbour (the brother of [Mr A]) for drinking beer; by the time of the hearing the applicant changed his claim about the neighbour, stating that the neighbour was not Taliban, but the neighbour had had Taliban visitors. Further, he made no claim at hearing to have any fear of [Mr A]’s brother, for any reason, despite being asked what had happened in Pakistan and what he was worried about if he returned to Pakistan. The Tribunal put to the applicant pursuant to s.424AA of the Act that in the interview with the delegate the applicant said that he had a fear of [Mr A]’s brother, but his only fear claimed at the hearing was a fear of the Taliban and he failed to tell the Tribunal that he had any fear of [Mr A]’s brother. The Tribunal put to the applicant that his omission to mention this fear undermined that he held any such fear of [Mr A]’s brother. The applicant’s response, through his agent, was that the applicant said he had misunderstood the question. The Tribunal notes that the applicant was asked on a number of occasions whom/what he feared, and he said the Taliban. That response indicates that he did understand that he was being asked whom/what he feared, yet he never mentioned [Mr A]’s brother. The Tribunal’s concern with this claim to fear harm was heightened because the applicant specifically told the Tribunal that nothing else had happened to him except for threatening letters and the attack in 2017. If he had been criticised for drinking beer by [Mr A]’s brother, to the extent that this led to a further fear of harm, then the applicant had the opportunity to tell the Tribunal this (and to have mentioned it in his protection visa application form), instead he confirmed that nothing else had happened, and he had no other fears. The Tribunal considers that this undermines his claim to have drunk beer and received adverse attention, and his credibility.

On the basis of the above concerns, the Tribunal does not accept that the applicant is a witness of truth in relation to his claims of past harm and future fears.
Other matters
The agent said that the applicant may have been nervous; the Tribunal accepts this, however it does not overcome the difficulties with his evidence and claims.
The Tribunal acknowledges that the applicant gave some consistent evidence throughout the process, including for example the name of his neighbour, that he had made a complaint about the people visiting his neighbour, that he feared the Taliban, that there were threatening letters. This does not, however, overcome the difficulties with his evidence.
As noted above, the applicant claimed to have a mark on his [body part] which he thought might have been caused by a knife, but he was unsure of this, and he said this occurred from the attacking 2017. He did not provide any further evidence of this. The Tribunal is not satisfied that even if he does have a mark on his [body part], this supports, and can overcome the difficulties with, his claims and evidence.
As discussed above, the Tribunal put to the applicant its concerns with his inconsistent evidence about his mother, namely that if his mother had been paralysed and hurt by the Taliban, he would have told the Tribunal this, instead of claiming that nothing had happened to his family members, because the Taliban had only been interested in him. The applicant suggested that the Tribunal could videocall his mother to see her. The Tribunal put to him that even if she is in a wheelchair, it doesn’t mean that she was pushed off the roof by the Taliban. In response he said he doesn’t have any video proof of that incident. The Tribunal put to him that seeing his mother in a videocall would not prove that she had been harmed by the Taliban; the Tribunal said that if this had occurred, it would think that he would have mentioned it in his original application form. The applicant said that he forgot about it at that time. The Tribunal does not accept that explanation, considering that if the applicant’s mother had been paralysed by the Taliban, because she was thrown off the roof by them, he would not have forgotten this when completing his protection application form. Further, if this had occurred to his mother, the Tribunal considers that he would not have said in his evidence that nothing had happened to his family members because the situation only involved him, not his family members.
The applicant had had numerous opportunities to provide a witness statement from his mother /any other evidence about his mother to the Tribunal before the hearing (or indeed to the Department), including:
·     When his application for review was acknowledged by the Tribunal on 15 March 2019 he was informed that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible;
·     On 23 February 2022 the applicant was informed that the application for review was being prepared for a member and if he has any additional evidence that is relevant to his application, he should send this to the Tribunal as soon as possible;
·     On 16 September 2022 the Tribunal wrote to the applicant (via his agent) stating that the agent should provide a written submission setting out all claims made and maintained by the applicant by 6 October 2022. The submission should be accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims, and if he was proposing that a witness give evidence at the hearing, a witness statement setting out the witness's evidence should be provided to the Tribunal by 6 October 2022. It was stated that where a witness is unable to adopt or sign a witness statement, particulars of the evidence the witness is expected to address and how it is relevant to the case should be provided by this date (this was not done). The applicant was also requested to provide any additional information, any requests to the Tribunal, or any new information which he wishes the Tribunal to consider, and any documents or written submissions, within 7 days of the receipt of the hearing invitation dated 16 September 2022.
No such written submissions declared as true by the applicant, nor any further documents nor witness statements nor requests for the Tribunal to take evidence were provided to the Tribunal. In his Hearing Response, where the applicant was asked whether he requested the Tribunal to take evidence from any person, and if so to provide their details and describe the evidence they would give, he stated “no”. In addition, at the request of his agent, the applicant was given further time after the hearing to provide any further evidence or documents/submissions. He has not provided any submission or document or witness statement from his mother. While it remains open to the Tribunal to videocall his mother, the applicant has not provided anything from his mother or about his mother despite numerous opportunities to do so, and the Tribunal does not consider that calling the applicant’s mother by video could lead to independent evidence that could assist in overcoming the difficulties with his claims and evidence.
The delegate had obtained some media news articles about the ship [Vessel 1] and crew that had deserted the ship, which were located on the Departmental file. The applicant acknowledged that many of the crew had deserted because of pay disputes; he said however that his desertion was not because of a pay dispute. The Tribunal accepts that the applicant did not claim asylum because of a pay dispute. This does not mean, however, that the Tribunal accepts the reasons for his asylum claim.
The Tribunal considered the documents produced by the applicant, namely the threat letters, the applicant’s request for an FIR dated [in] May 2001, and the FIR dated [in] May 2001. At hearing the Tribunal referred to the DFAT Report which states that:
Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.
Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds…. FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.
The Tribunal put to the applicant that it has concerns about his credibility and it may not be able to give weight to these documents given the country information about documents in Pakistan. In response the applicant said the documents he produced are correct and true.
The Tribunal has concerns with the reliability of the documents provided by the applicant (which are images or copies, albeit attested to be copies of the original). The Tribunal had significant concerns that although he produced the threat letters, he was unable to tell the Tribunal the contents of the letters including the details of the threats made therein (save for the death threat). As put to the applicant, the letters stated to have been written by the Taliban could have been drafted by anyone. Further, the applicant gave inconsistent evidence about his complaint to the police, as discussed above, in that it was either made in 2001 or 2011, and it was either made in writing in 2001 or orally in 1998; further, his protection visa application does not even claim to have made a complaint to the police, instead he claims to have reported the neighbour to the army. The Tribunal has considered the documents in light of the country information about the relative ease of procuring false documents, and noting DFAT’s statement that DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.
The Tribunal does not place weight on these documents as evidence of the claims made.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
Finding on the applicant’s claims
The Tribunal accepts that the applicant is a Pashtun male who has been based in Karachi since 2001 for work, and that he would occasionally go back for short visits to his family in Ghazi. It accepts that since about 2007/2008 he has worked as a seaman, coming back home to Pakistan for between 2 and 6 months every year. The Tribunal accepts that his family members reside in Pakistan close to or in the home village, and that his two brothers travel to/reside in [Country 2]/[Country 1] for work.
On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant reported his neighbour, or the people who visited his neighbour, to the police or the army, nor does it accept that his neighbours or visitors to his neighbours were members of the Taliban or suspected to be members of the Taliban. While it is prepared to accept that his mother may be paralysed, it does not accept that this was caused by the Taliban and/or his neighbour(s). It does not accept that he was harassed, threatened, teased or attacked by the Taliban, nor does it accept that he was targeted by the Taliban or his neighbours for any reason. It does not accept that he ever received threatening calls or letters, nor that his family received threats about him. It does not accept that he was ever in hiding. The Tribunal does not accept that the applicant has an anti-Taliban opinion. The Tribunal does not accept his assertion that his brothers are like the Taliban, they live life like the Taliban, nor that they tried unsuccessfully to get him a visa to leave Pakistan. The Tribunal does not accept that the applicant has faced adverse attention (including for making a complaint or his claim made to the delegate that he had drunk beer or undertaken any other such activity) while in Pakistan or when out of Pakistan. It doesn’t accept that he is unmarried because of his issues with the Taliban. The Tribunal does not accept his claims to fear harm for drinking, irregular praying or fasting, as it does not accept that he engages in the behaviour claimed. The Tribunal does not accept any of the claims flowing from these claims. It does not accept that he has a genuine fear of harm from the Taliban for any of the reasons claimed throughout the process. The Tribunal finds that he has been prepared to make up claims to support a protection visa. The Tribunal does not accept that the applicant faces any risk or chance of adverse attention based on these claims, as it has not accepted that these claims are true.
The applicant’s home areas
The Tribunal put to the applicant that on his own evidence he has two home areas; it is his claim that he had been living and working in Karachi for many years (since 2001), but that he would go back occasionally to visit his home village in Ghazi. He did not disagree with this. The Tribunal has not accepted that his purpose in residing in Karachi was due to fear, it considers that he chose to move there for work in 2001, and he considered this his home area as he kept returning to Karachi and residing there. The Tribunal considers that upon return to Pakistan, the applicant will continue to do the same.
The Tribunal put to the applicant at hearing that it is required to have regard to the country conditions as set out in the DFAT Report on Pakistan. It said to him that if it did not accept his claims including relating to the adverse attention arising from the claimed report to police/army (which it has not) then it may find that he does not face a real chance of serious harm or a real risk of significant harm in Pakistan. In response the applicant said that the Taliban just won’t go away; 2 days ago innocent children were killed in Pakistan and this will just continue. The Tribunal has considered the situation in Pakistan including the risk of general violence/ being a victim of terrorist attacks from the Taliban or others, when considering his profile as a male Pashtun who will have returned after 4 years away from Pakistan, who will reside in Karachi working, and occasionally visit his family in the village. The Tribunal notes that the applicant has never claimed that his brothers have faced harm when returning to the village after working abroad (and the Tribunal has not accepted that they are any different to the applicant, namely it has not accepted the claims that they live like or are like the Taliban). Apart from claiming that he was in hiding from the Taliban and that he was attacked in 2017, and that he received threats (none of which the Tribunal has accepted) the applicant did not claim to have ever experienced harm in Pakistan or to have been targeted by anyone.

100. The applicant’s claim in his protection visa application form (that he did not attempt to relocate because “Did not move to any other city as most of my life was spent on the ship but the conditions were still extremely unsafe in KPK”) has been considered, however it is noted firstly that this claim is contrary to his subsequent evidence that he did relocate to Karachi, and secondly insofar as he was claiming in his protection visa form to have lived for years (1998 to 2007/2008) in Khyber Pakhtunkhwa Province where conditions were “extremely unsafe”, the Tribunal notes that the applicant said at hearing that his area was peaceful.
101. The applicant did give further contradictory evidence about the conditions in his home area of Ghazi. The Tribunal put to the applicant pursuant to s.424AA of the Act that in the interview with the delegate he said on numerous occasions that his area is very peaceful, and nothing happened there. However, he said to the Tribunal (at a different time during the hearing to when he said that his area is peaceful) that where he resides is a very sensitive area, it is an army-controlled area and there are always things happening there, a short time ago there was a blast in the army mess, he doesn’t know who did it. The Tribunal was concerned with his changing evidence about Ghazi. In the oral s.424AA response his agent said on his behalf that it is army-controlled area and it is not a high-risk area but sometimes there are incidents involving the army that are high risk. His area is [specified]. The agent said that there were some incidents a few years back when the Taliban attacked the army, and as the Taliban have carried out attacks, the applicant fears harm.
102. The applicant did not produce any country information in support of his claims to fear harm in his home areas in Pakistan, although he asked for further time to do so and the Tribunal agreed to allow further time for submissions. The Tribunal has considered the country information in the DFAT Report (some of which is extracted at Annexure B).
103. As noted above, the applicant gave contradictory evidence about his home area of Ghazi, including telling the Tribunal that his area is peaceful, when comparing it to neighbouring Marden (where he claimed to have been beaten in 2017). The Tribunal is prepared to accept that his family in Ghazi live near an army area and that army facilities can be targeted by the Taliban or other such groups. The applicant claimed that nothing had ever happened to him in Karachi, and the Tribunal so finds. It also finds that he had never experienced any adverse attention or harm in Ghazi (or Mardan or other adjoining areas) (and he makes no such claims apart from those claims that the Tribunal has rejected). The Tribunal accepts that there have been problems over the years in Khyber Pakhtunkhwa Province where he lived, but it does not accept that he or his family experienced that the conditions there were “extremely unsafe”. The Tribunal finds that his family have experienced no harm or adverse attention, including his two brothers who travel in and out of Pakistan to go work overseas.
104. The Tribunal accepts that there are terrorist attacks throughout Pakistan, including in the applicant’s home province of Khyber Pakhtunkhwa and in Karachi. It accepts that he is a Pashtun and that the largest Pashtun community in the world lives in Karachi, a city of 16.5 million people. It also accepts that since the Taliban have regained power in Afghanistan (combined with other factors set out in the DFAT report), there has been a decrease in the security situation. The applicant has not claimed at hearing to fear anyone or anything other than the Taliban (except for his neighbour which the Tribunal does not accept); he did not claim to fear harm from the authorities, and he has not claimed to fear or to have experienced any discrimination. The DFAT Report assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country, and the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm just by having been abroad. The Tribunal does not accept that the applicant has engaged in behaviour while being abroad (nor that he will do so upon return) which could lead to him facing a real chance of serious harm or a real risk of significant harm in Pakistan. The Tribunal notes that the applicant has travelled in and out of Pakistan for years, with no adverse attention or harm from anyone.
105. The Tribunal does not accept that the applicant’s profile means that he faces more than a remote chance of any harm, and it does not accept that he faces a real chance of serious harm or a real risk of significant harm when residing and working in Karachi, or when occasionally visiting his family in Ghazi.
106. The Tribunal does not accept that the applicant had an adverse profile, nor had received adverse attention when he was previously in Pakistan. The Tribunal is not satisfied that there is any credible reason for the applicant to have an adverse profile upon return which would lead to him facing a real chance of serious harm.
107. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.
108. The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm if he returns to his home country Pakistan.
109. The Tribunal is not satisfied that the applicant faces a real chance of persecution in Pakistan. 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).

Complementary protection
110. Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
111. The Tribunal has accepted that the applicant is a Pashtun who originally lived in Ghazi but now is based in Karachi where he works and supports himself and occasionally visits his family in the village. It accepts that for many years, as a seaman, he spent long periods of time in and out of the country, returning to Karachi after being at sea. It has not accepted his other claims including that he was ever targeted by the Taliban and had to live in hiding, nor that he has ever faced harm or adverse attention in Pakistan. It does not accept that he engages in behaviour that he considers will lead to adverse attention in Pakistan (drinking, irregular praying or fasting). The Tribunal has found that he is not a witness of truth who is prepared to make up claims to seek to be granted a protection visa.
112. The Tribunal does not accept that the applicant (nor his family members in Pakistan) have experienced any of the past harm or threats claimed. The Tribunal has considered his profile and the country information discussed above, however it is not satisfied that he faces a real risk of harm in Pakistan for the reasons he has claimed, or for any reason.
113. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

115. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

annexure a - 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.
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 below.
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.
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.
…
Annexure B- extracts from the DFAT Report
According to the 2017 census, the population of Pakistan is 207.7 million, with a 2.4 per cent annual growth rate. More than half the population lives in the province of Punjab, and 60 per cent of the total population lives in rural areas. There is a large and growing youth bulge; according to the United Nations Population Fund, a third of the population is aged 10-24 years. The largest cities are Karachi (16.5 million) and Lahore (13.1 million). The capital, Islamabad, has a population of 1.2 million.
SECURITY SITUATION
2.34 Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
2.35 Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks.
2.36 Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
2.37 While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).
2.38 Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.
Domestic jihadist groups
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[1]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
Pashtuns
3.14 There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason
Internal relocation
5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted.
Conditions for Returnees
5.28 Returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistani law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan….
5.31 DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad

[2022] AATA 4877

26 October 2022

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Immigration

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