1906614 (Refugee)

1906614 (Refugee) [2023] AATA 3223 (7 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Fayyaz Ali Shah (MARN: 1570276)
CASE NUMBER: 1906614

COUNTRY OF REFERENCE: Pakistan
MEMBER:Rodger Shanahan
DATE:7 July 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 July 2023 at 12:45pm
CATCHWORDS
REFUFEE – protection visa – Pakistan – political opinion – Awami National Party – opposition to the Taliban – Army informant – family land dispute – physical assault – fear of killing – return visits to Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 who claims to be a citizen of Pakistan, applied for the visa on 10 October 2018.
The applicant appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The following statements were given as part of the applicant’s protection visa application:
I was born on [date] in [my home village in] Swat in the province of Khyber Pakhtunkhwa Pakistan. I am a Sunni Muslim and my ethnicity is Pashtun. I am the only child of my parents and they passed away many years ago.
I am married to [wife’s name] and together we have [number] children [genders specified]. [One named child] is currently in [Country 1]. [Another child] is married and live with [family members]. My remaining children live with my wife in Swat Pakistan.
I have been working as a Seaman since 1985. During my career as a Seaman I have travelled to [list of countries]. In these countries I would work and stay in the ship.
The Country to which I fear returning: I fear to return to Pakistan.
Why I left that Country:
I left Pakistan because I was not feeling safe there. In the past few years I have stayed mostly away from my family home. I have stayed in Karachi and some time with my in-laws because Taliban were after me. I am wanted to Taliban because of my affiliation with Awami National Party (ANP) and because I would speak against Taliban.
My father has inherited a lot of agricultural land for me. My cousins are jealous of my financial position because I had more land than them. They want to kill me, so they can grab my land.
Taliban began their movement in about 2005/06. I was against their movement because their treatment was inhumane. I would talk against Taliban whenever I could. My cousins have also joined them. Taliban have many spies in the community and they would inform Taliban of anyone who would talk against them.
In about 2008 when I was working in my agricultural land a group of Taliban came to me and told me that I have been talking against them. I replied that I haven't. They start beating me and left with a warning to keep my mouth shut and stop supporting ANP.
I had a land dispute with one of my neighbour [Neighbour A] for many years. During Talibanization he also joined them. He has a big family and most of them supported Taliban. [Neighbour A] and his family ordered me to keep myself away from my disputed land. He has threatened me many times that I should not visit my land that was in dispute with them.
After the Army operation in Swat many Taliban left our home town. When the Army came to Swat they need assistance from the public to show them Taliban and their houses. I showed them my cousins who were member of Taliban and [Neighbour A] and his family member homes which were destroyed by them.
I would go to Karachi from time to time to join my shipping company. Many Taliban who left Swat went to Karachi and they would target people who have worked against them or those who were supporting ANP. I stayed in Karachi with my ANP friend [Friend A]. He was killed by Taliban in Karachi in about 2012. One of my other friend [Friend B], from ANP was also killed in Karachi.
My cousins who have joined Taliban and [Neighbour A] and his family members are now threatening me. They have threatened me many times by saying that I have showed the Army their houses which were destroyed by them and that I have supported ANP who have done an Army operation against them.
What I fear may happen to me, by who and why, if I return to that Country
I fear from my cousins and our neighbours who are member of Taliban. They are against me because of our land dispute and my association with Awami National Party and that I have showed the Army their houses which were destroyed by them.
Did I experience harm in that Country? I was beaten and threatened by Taliban and my cousins who have joined them. They are now threatening to kill me.
Did I seek help within the country after the harm? When I was beaten by Taliban there were no police in Swat to seek help from. I am unable to report any threats to them because I fear if Taliban get back in power they will harm me and my family.
Did I move or try to move to another part of that country to seek safety? I have lived in Karachi and with my in-laws but there is no safe place in the country where I could stay away from Taliban.
Do I think I will be harmed or mistreated if I return to that Country? I fear I will be harmed or killed by Taliban if I return to Pakistan.
Why I think the authorities of that Country cannot or will not protect me if I were to go back to that Country: The authorities cannot protect me. There are many people who fears from Taliban, but they cannot protect us from Taliban.
Why I think relocation to another area in my country is not a reasonable option
I cannot live safely anywhere in the country. Karachi is a big city and there are many Taliban who fled from Swat. Taliban have killed many of our friends and people known to us in Karachi. I am sure there is no place in Pakistan where Taliban does not exist.
I came to Australia and I am now requesting for asylum. I came to Australia because I am unable to have a peaceful life in my country and request the Australian government to grant me protection.
AAT Hearing
The applicant was asked about his response to the hearing invitation where he said that he was experiencing significant memory loss that made it difficult for him to remember past events. He was told that the Tribunal had requested some medical evidence regarding this and was asked if he had any and he claimed that he had difficulty to see doctors as he lived in [Town 1] and didn’t speak English and there was no such doctor in the medical field to see and he had no one to help him. He was asked what he meant that there was no doctor in this field in [Town 1], he said there weren’t many doctors in [Town 1] and people were too busy to take him.
Asked if he had a Medicare card he said that he did. Asked how he got this if he couldn’t speak English and couldn’t get around, he said that he got it for emergencies. It was put to him that the Tribunal could not give his claim to have memory loss any weight without any evidence given there were doctors in [Town 1] and [City 1] and he had sufficient warning of the hearing and he could have arranged events and their dates in his mind before he attended the hearing. The Tribunal had to satisfy itself that he was not just claiming to have a poor memory as an excuse for any inconsistencies that may emerge in his claim.
The applicant said he didn’t drive and had no one to take him to a doctor and didn’t speak the language. Asked if he worked in [Town 1], he said that he did sometimes. Asked why he chose [Town 1] to live in, he said that there was a relative living in [Town 1] but he was married and had his own life there. He couldn’t help the applicant all the time.
The applicant claimed that if he returned to Pakistan, there was land litigation where cousins wanted to take over his land. Another person wanted to do this to him as well, and they had connection to the Taliban (TTP). He was a follower of the Awami National Party (ANP) and the TTP was threatening him to leave it. Asked what serious harm would happen to him if he returned to Pakistan, he said that he would be killed by TTP. In 2005/06 he cooperated with the Pakistani Army and pointed out the homes of TTP members and the TTP knew he had done that.
He claimed that he would be killed by some people if he returned to Pakistan. Asked who they belonged to, he said it was his cousins who were cooperating with TTP. Both his cousins and the TTP would seek to kill him because of the land dispute and because he had pointed out TTP sympathiser’s houses to the Pakistani Army. Asked who would kill him because of his claimed membership of the ANP, he said the TTP. He had this fear from 2005/06.
He had the fear from TTP after pointing out the houses of TTP members from 2008. He had a fear of [Neighbour A] and his cousins over a land dispute since 2005/06. He had no other claims. There was also discrimination against Pashtuns in Pakistan. Asked what harm he personally feared as a Pashtun, he claimed that this related to his membership of the ANP. He then said that in Pakistan Pashtuns were not considered the perfect human beings. Asked what he meant by this, he simply repeated his previous claims.
Asked about his ANP membership, he claimed that In 2005/06 when the TTP came to Swat he began speaking out against the TTP actions. Asked when he joined the ANP he said he couldn’t recall exactly. Asked if other members of his family were ANP members, he said his family just recently joined. Asked who joined, he said that his cousins joined. Asked if these were the pro-TTP he said they were, as they were playing both sides. Asked when they joined the ANP said he couldn’t recall but it was about 3-4 years ago. It was after he had arrived in Australia. Asked if any siblings or parents were in the ANP, he said his father was but his parents were now dead.
Asked what he did as a ANP member, he stated that he was a ‘worker’. He would try to convince people to vote for the ANP. He also helped during elections and he would campaign for candidates. Asked if he had any photographic evidence of his participation at ANP rallies or functions during his nearly two decades of service, he said that he went to Karachi in 2008 and helped senior people in ANP. He was told this was not the question that he was asked and he was reminded that the Tribunal asked if he had any evidence that would place him at any ANP events that could serve as evidence to support his claim. He said there would be perhaps in the past but he was unsure if it was available.
He said that he had given a card and this was his only evidence. It was put to him that country information said that fraudulent documents were easily obtained in Pakistan and his card had hand-written entries and given it could have been easily forged, the Tribunal was unlikely to give it much weight. Asked if he had any other evidence, he claimed that he didn’t but the Tribunal could enquire with the ANP in Pakistan if it wished.
Asked why he thought he would be killed in 2005 for being a member of the ANP, he claimed that it began when the army came to Swat in 2005/06 and he pointed out TTP houses to them. Asked if he had been to Australia between 2005/06 and when he last came to Australia (as well as other countries) he said that he had but when in Pakistan he hid. Asked why he didn’t previously apply for protection in Australia or elsewhere if he had been at risk since 2005, he said that he had been to countries multiple times but he didn’t have a serious harm during this time and he was in hiding in Pakistan in Karachi or his village.
It was put to him that if he claimed to fear serious harm for such a long time and yet continued to return to Pakistan this raised serious questions in the Tribunal’s mind as to whether he was fearful of being harmed. He said that he felt fear from 2018 when he was threatened by his cousins. It was put to him that he had said he feared his cousins from 2005/06. He said that he received the last, most serious warning in 2018 which was why he jumped ship. Asked if he was the only one who jumped ship, he said there may have been others. Asked what he meant by there may have been, he said that perhaps others had jumped ship before but on this occasion it was just him. What he meant by ‘on this occasion’ he said that there were three people from the ship. He said that prior to them there may have been others – asked how long before they jumped, he said that it was the day before when approximately 10-15 people jumped. In all that made 18 people.
It was put to him that the same time as he received a threat from his cousin there were 17 other people from the ship who wanted to jump. It was hard to believe that he had received a serious threat from cousins who he claimed they wished to kill him for the last 13 years and within 24 hours 17 others decided to jump ship. It was not uncommon for ship’s crew to protest poor working conditions or lack of pay. Perhaps the applicant had jumped ship over working conditions and not for a reason separate to the others given the coincidental timing of the alleged threat from his cousins.
He claimed that he did not have any discussions with these other people and he didn’t know their conditions. He had been left by the others on the ship and he was afraid of the danger he faced in Pakistan. He was asked why he had never jumped ship in any other Western country or in Australia in the last 13 years. He said that it was only recently he had these issues. It was put to him that he claimed he had a fear of being killed since 2005 because of the land dispute, being in the ANP and having showed TTP supporter’s houses to the army. Yet he came to Western countries regularly for over a decade and yet continued to return to Pakistan for more than a decade despite claiming he would be killed there. It didn’t make sense. He said the fear became severe in 2018, before that it wasn’t so severe. He was asked what could be more severe than fear of death and he stated that the situation wasn’t that bad in the previous years so he was happy to return.
Asked when he inherited the land from his father, he claimed that it was in 1995 when his father died. Asked if he had a copy of the title deed, he said that he did but hadn’t given a copy previously. He was asked why there was a dispute if he had a deed to the land he said that his house was looted during the fighting and his deed and other papers were taken. Asked if he had mentioned this before, he said that he got this information from his family. This had occurred in 2016. It was put to him that there had not been a previous mention of this in his statement or interview yet 2016 was after he applied for protection. He said he was never asked – he was asked if he didn’t think it was an important issue to mention. He said his memory wasn’t that good to remember everything.
He was asked why there was a dispute over the land from 1995 given he had the title deed, and he claimed that the papers were lost. He then said the papers were lost in 2006 when the army operations were conducted. He was asked why he hadn’t mentioned the missing title deed as part of his claim about the alleged land dispute. He said that he was only told by his family when he was asked to provide a copy of it. It was put to him that if the documents were taken in 2006 then he would already have known that this was the case but had not mentioned this. He did not answer.
Asked what the nature of the dispute with his cousins was, he said that he believed that his cousins cooperated with the TTP and that they had been given the title deeds after they were taken from his house. Asked what the dispute was between he and his cousins regarding the land, he said the cousins were going to occupy the land and if he resisted they would kill him. He was asked what he meant, he said that they sent him a warning not to come on the land. Asked if he still had the land he inherited in 1995, he said that he did but he couldn’t do anything with it. Asked if he had sold or subdivided it or given it to anyone he said that he had no siblings. He agreed that the land was just sitting there and he didn’t have any land anywhere else.

He agreed that he had showed the army his cousin’s properties because they were pro-TTP and the army destroyed them. His cousins had returned to their land after the army left. The applicant’s own family lived where they always had. He said they did but they were always scared. He was asked if his cousins had taken retribution against the applicant’s family or their house following their own houses being destroyed, he said they had. Asked when they did this as it hadn’t been mentioned previously, he began replying although it didn’t make any sense as he simply began repeating his claim that the army destroyed his cousins’ houses. The question was re-asked and the applicant said his family was living in dangerous conditions. He was asked if their house had been destroyed and said that it hadn’t been destroyed but the documents had been taken. It was put to him that he had previously said the TTP did this. He repeated the house had not been destroyed just the documents taken.
He was asked why he allowed his family to remain in the same village as his cousins who would presumably want revenge after their houses had been destroyed by the army. Yet after 15 years nothing appeared to have happened. He said the houses were destroyed by the army not him, and it was pointed out that he was the one who told the army. He then said the cousins were just waiting for an opportunity. He was told the Tribunal found it hard to believe that no opportunity had presented itself after 15 years. He did not respond.
He said that he was concerned about his family and that his cousins may kill them and he wanted asylum. He was asked if he was so concerned about his family it was strange he left them for 15 years. The Tribunal was concerned that there was no risk as there was no dispute with his cousins which was why he was happy for them to live there for the last 15 years.
He was told about s 424AA and it was put to him that he had been asked if the land he currently had was the same as that which he had inherited and he hadn’t given any away or subdivided and he said he still had his land. Yet in his interview he said that he gave some land to his cousins for them to build houses and that his cousin’s children had taken ten per cent and that he had sold some land and others had been taken by force. He had reported this to police but they did nothing. This was inconsistent with what he had said to the Tribunal which could go to issues of his credibility. He claimed that the land was in their hands and they had warned him not to return.
Under s 424AA it was also put to him that the media report about his group of people who jumped ship reported that they had done so over a dispute concerning wages. The Tribunal was concerned that the coincidental timing of his threat he received from his cousins 15 years after the dispute began appeared to coincide with a wage dispute on his ship and that he had no land dispute and he simply jumped ship with the other people over an economic dispute. He claimed the others may have had a dispute but his condition was different.
He was asked why he couldn’t relocate given he had lived with his in-laws and lived in Karachi without having any problems from the TTP. He said he couldn’t live anywhere as it was dangerous. He was told that country information indicated that people (including Pashtuns) could move freely around Pakistan. His family had not relocated so must feel safe – he was asked why he couldn’t just move. He said it was very difficult to move which was why he was seeking asylum.
The Tribunal acknowledged that there were attacks from the TTP but it was a country of 230 million and country information indicated that the TTP was trying to focus away from civilians as targets so they didn’t lose popular support. To this end in 2022 there were only 14 attacks against civilian targets resulting in 13 deaths which was miniscule in a population of 230 million. He claimed that there were constant attacks and people being kidnapped. He was told he would be given an opportunity to provide country information post-hearing. It was put to him that the Tribunal was concerned that none of the events he had described had occurred and that he was of no interest to the TTP. He claimed that there was no peace in Pakistan and that women could not leave their homes even to do shopping and there was much kidnapping going on as the situation deteriorated in Pakistan.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a maritime crew visa [in] 2018, deserted his ship [days later] and applied for protection on 10 October 2018. He applied for a protection visa on 10 October 2018.
The applicant is [an age] year-old married male Pakistani citizen. I have seen a copy of his passport and accept that he is a genuine Pakistani citizen. He claimed that if he returned to Pakistan he would be killed by the TTP because he had pointed out houses of TTP sympathisers to the army and because of his involvement in the ANP, and by his cousins because of a land dispute and because their houses had been destroyed by the army after he said they were TTP sympathisers.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
I note that the applicant claimed in his response to the hearing invitation that he suffered from significant memory loss. He was asked to provide medical evidence of this yet failed to do so. I do not accept that this was because there were no appropriate doctors in [Town 1] where he lived, he did not speak English and people were too busy to take him. A quick internet search reveals a community mental health centre that includes psychiatrist services, as well as other psychologists in [Town 1]. There are several psychiatrists in [City 1], two hours away.
The applicant lives and works on occasion in [Town 1], has a relative living there, a Medicare card and was able to travel to Sydney to attend the hearing in person. The ability to live and work in the country, obtain a Medicare card, retain a migration agent to assist with his case and to travel to Sydney to attend the hearing shows that he can navigate the bureaucracy sufficiently to obtain healthcare cover via Medicare and to engage professional assistance to progress his protection claim. I do not therefore believe that he would be unable to access a psychiatrist/psychologist in [Town 1] or elsewhere if he actually required their services. I am satisfied that he would have been able to provide medical evidence to support his claim if he did actually suffer any mental health ailment significant such as memory loss. He was also given sufficient notice of the hearing to have obtained some form of medical evidence if he actually did have memory loss.
Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Land Disputes
I do not accept that the applicant was in a land dispute with his cousins or another man by the name of [Neighbour A] and that they had both threatened to kill him. The applicant claimed to have inherited land in the mid-1990s however he was unable to provide copies of any land title deed(s) that would support his claim. He claimed that they had been taken by the Taliban when his house was ransacked by them in 2005/06 and his family had told him when he tried to access them as part of his protection claim.
I do not accept this to be the case. He had never previously mentioned this fact and I do not accept as reasonable that he only came to know about the missing land title deeds when he attempted to access them as part of his protection claim. Given he claimed they had allegedly been missing since the TTP took them in 2005/06 and he had been locked in a land dispute before and after that, it lacks credibility that he would not know they had been missing for well over a decade. He provided no answer when this concern was put to him at hearing. Because of the lateness of the claim and the absence of a reasonable explanation as to why this claim was not raised before the primary decision was made, s 423A of the Act requires that I draw an inference unfavourable to the credibility of the claim.
There was also an inconsistency in his description of what occurred with his land that was of such an order as to further confirm in the Tribunal’s mind that the applicant is fabricating the issue of his land dispute. He was asked at hearing if he had done anything with his land such as sub-divide and sell, or gift any of it away and he claimed that he had done nothing with the land inherited from his father and he retained it all. He owned no land other than this.
Yet during his interview with the delegate he claimed variously that he gave some of this land to his cousins to build houses, that his cousin’s children had taken ten per cent of the land, that he sold some of the land and that other parts had been taken by force and that this was reported to the police but they took no action. He was unable to account for the inconsistency in his claims regarding the use of his land.
Threats from TTP
I do not accept that the applicant was ever threatened by the TTP or that his cousins and/or [Neighbour A] were members of the TTP. This relies entirely on his oral testimony, and there are sufficient aspects of his account and his behaviour which gives the Tribunal cause to disbelieve this claim.
To begin with the applicant claimed that he had pointed out the homes of TTP sympathisers in his village (including those of his cousins and [Neighbour A]) to the army during 2005/06 and they were subsequently destroyed. His cousins then returned to the village and yet took no revenge against the applicant or his family. The applicant said that he spent a lot of time living in Karachi and/or with his in-laws and not in the village. It makes no sense however, that the applicant would allow his family to remain in the same village as his cousins who were seeking revenge for having had their houses destroyed thanks to information provided by the applicant to the army. I do not accept that the cousins are just biding their time given that no action has ever been taken against the applicant or his family in the nearly 17 years since the houses were destroyed.
ANP Membership
I do not accept that the applicant is, or was a member of the ANP. I also do not accept that the applicant has ever spoken against the TTP or that he was beaten by them in 2008 when working on the land and told to stop supporting the ANP. The claim to have been a worker in the ANP relies largely on his oral testimony which I have found above lacks credibility. I have taken into account a copy of what the applicant claims was an ANP membership card that was presented as part of his application however I can lend it no weight given country information indicates that document fraud is widespread in Pakistan.[1]
[1] DFAT Country Information Report – Pakistan, 25 January 2022, p 47.
The applicant’s claim that his cousins had also joined the ANP also lacks credibility. Although he claimed they did so because they wished to play both sides, it lacks credibility that they would be allowed to join the ANP given they were also TTP members, or that the applicant would not have warned the ANP of their antecedents and their alleged desire to kill the applicant who was allegedly a long-standing ANP member himself.
Pashtun Ethnicity
Whilst I accept that the applicant is of Pashtun ethnicity I do not accept that there is a real chance he will face serious harm because of it. Country information indicates that Pashtuns face a moderate risk of violence by state security forces in Khyber Pakhtunkhwa but elsewhere in Pakistan they face a low risk of official/state discrimination.[2] The applicant has provided evidence that he has remained employed for a long period of time, owns land and has a son working overseas. This does not support his claim to have been severely discriminated against.
[2] DFAT Country Information report – Pakistan, 25 January 2022, p 20.
Whilst I note the risk of violence in Khyber Pakhtunkhwa I also note that the applicant’s family remains living there even though internal migration in Pakistan is common, although it depends on the individual’s financial means.[3] I do not accept the applicant’s claim that it is difficult to move and that he couldn’t live anywhere else because it was dangerous to do so. The applicant gave evidence that he did not return to the village because of the danger and lived instead at his in-laws and in Karachi. This is simply another example of the applicant’s inconsistency and his lack of credibility as a witness. I am satisfied that the applicant, like his family, feels safe to live in their current abode but are able to relocate if they deemed it necessary to do so.
Other Issues
[3] DFAT Country Information report – Pakistan, 25 January 2022, p 43.
The applicant’s actions are inconsistent with a fear of serious harm due to a land dispute or TTP attention. Despite having travelled to many Western countries (including Australia) on numerous occasions in his role as a seaman, he never applied for protection until he jumped ship in 2018. I do not accept that the threats prior to this weren’t so bad so he was happy to return to Pakistan.
This is inconsistent with his claims that he was beaten, his family was under threat because the applicant had given the army information that led to the destruction of TTP members’ houses in his village, and that this was all sufficient to force him to avoid the village and live at his in-laws or in Karachi. I also note the coincidental timing of his decision to desert the ship. He was part of a larger group of more than a dozen sailors who deserted ship over what the media described as a dispute over wages.
Although he did not explicitly raise the issue of general violence in his area of Pakistan the Tribunal has dealt with it for completeness’ sake. I do not accept that there is a real chance that the applicant will suffer serious harm if he returns to Pakistan. The Tribunal accepts that there are armed attacks in Pakistan and that the security situation has deteriorated since mid-2021 as per the DFAT report.[4]
[4] DFAT Country Information report – Pakistan, 25 January 2022, p 24.
The report on which the DFAT report is based notes that in 2021 there were 207 attacks that resulted in 335 deaths in Pakistan. The most recent report from the Pakistan Institute for Peace Studies (from which the DFAT figures come) indicated that in 2022 there 262 attacks resulting in 419 deaths.
There are two issues of note here. The first is that the 419 deaths, while tragic, occurred within a population of 230 million. The second is that of the 262 attacks in 2022, the majority (180) were against security forces and only 13 were against civilians, resulting in 14 deaths.[5] As a result, while the Tribunal accepts that there are attacks occurring in Pakistan those with the applicant’s profile are not the preferred targets and the likelihood of being caught up in the incidental violence in a population of 230 million (based on the figures available) is so small as to be virtually zero. It certainly falls well short of representing a real chance.
[5] SecReport_2022.pdf (pakpips.com), accessed 24 May 2023.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever a member of the ANP, criticised the TTP or showed the army the location of TTP members’ houses, was beaten by the TTP, was in a land dispute with his cousins or anybody else, that he faces harm because he is Pashtun or that he would not be able to relocate if the security situation deteriorated, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3223

7 July 2023

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