1907301 (Refugee)

[2023] AATA 2279

1907301 (Refugee) [2023] AATA 2279 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907301

CASE NUMBER:  1907305

REPRESENTATIVE:  Ms Joey Bich Chau Tran

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:31 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 31 March 2023 at 11:13am

CATCHWORDS

REFUGEE – protection visa – Pakistan – political opinion – Awami National Party members – Village Defence Committee members – fear of the Pakistani Taliban (TTP) – refusal to join TTP – fear of killing – return visits to Pakistan – previous opportunities to seek protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 75, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. These are application for review of decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are brothers who are also citizens of Pakistan. As former seamen they have both arrived at Australian ports numerous times over several years. On many occasions they arrived and left on board the same ship. Their last arrival was [in] September 2018 on board [a named ship]. They signed off to disembark during [an industrial] dispute [in] September 2018. They were due to return to ship on [the following day]. They did not return. They and others evidently presented to Australian border staff on [a specified day]. The applicants both lodged separate PV applications on 3 October 2018. The claims in the application forms were brief: fear of the Pakistani Taliban (TTP).

3. The delegate refused to grant the visas on 12 and 13 March 2019 respectively.

4. The applicants appeared before the Tribunal on 20 February and 16 March to give evidence and present arguments. They were accompanied by their adviser, a registered migration agent, who appeared by video link. The Tribunal also received oral evidence from the applicants’ [relative, Witness A]. Another witness was offered, a current resident of Pakistan called [Witness B], whose telephone number was provided. After appropriate consideration, bearing in mind the applicants’ interests and also having regard to a sworn affidavit from [Witness B], I decided not to take oral evidence from him. I provided [Witness A] with an opportunity to give oral evidence at the resumed hearing.

5. The Tribunal hearing was facilitated by an interpreter in the Pashto-English medium.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

10. 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

11. In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    The issues

12. The key issue in this case is whether, on accepted evidence, either of the applicants is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

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

    Claims

14. The applicants are Sunni Muslims who come from [Village 1], [Town 1], in the Swat Valley region of KPK Province, Pakistan, where their immediate and extended families still reside. For clarity I shall refer to them as [Applicant 1] and [Applicant 2]. Their father, a farmer, used to be [an occupation 1]. Their mother died in 2017 due to a long sickness and a heart attack. Counting each other, they [had specified family members], all married, except for [one].

    [Applicant 1]

15. [Applicant 1] is married with [specified children]. He was [an occupation 2] before becoming a seaman in 2002. In a statement of claims to the Department, he said that many of his family members were members of the Awami National Party (ANP) a noted pro-Pashtun Party. He claimed to have joined the ANP in 2002, the year he commenced work as a seaman abroad. Notwithstanding this, he claimed he attend meetings, gatherings and demonstrations, campaigning for the party during election times.

16. [Applicant 1] made a supportable claim to the effect that there was an increase in Muslim extremist militancy in Pakistan’s border regions around 2007. He said that in 2008, when TTP activities increased, Village Defence Committees (VDCs) were formed to bolster the security of the people within the villages. He claimed he became a member of his local VDC in about 2008. He claimed that as a member of the VDC, he had to co-operate with the army personnel, do night watch patrolling and inform the VDC leaders about the location and whereabouts of the Taliban.

17. [Applicant 1] claimed that in early 2009 a group of people from the Taliban came to his home and asked that two persons from the household join them to fight against the Army. He said his household was selected because his family was influential in the area. Not wishing to have anyone join the TTP the applicants said their mother was sick and that the family needed some time. He said his whole family fled the next day to [Town 2], another town in KPK Province, and remained there for two months. [Applicant 1] claimed that while the family was in [Town 2] friends told them that there were some suspicious people looking them there. He said the family thus moved to [Town 3] in Punjab and stayed there until the Pakistani army took control of their village.

18. [Applicant 1] did not go back to the village because he was a seaman working for a company called [Business 1], his job being [specified duties]. He described the job as a contract role. At Karachi he joined a ship for 9 or 10 months and then went back to there. He stayed in Karachi for about 2 or3 months and then started a new contract with the same shipping company.

19. [Applicant 1] claimed that in January 2011, in Karachi, the Taliban killed his friend, relative and neighbour [Friend A], who had also been working for [Business 1] and a member of the ANP. He claimed his [Relative A] and his friend [Friend B], a community leader and ANP member were attacked in 2011 but luckily survived. He claimed that in 2012 the Taliban also killed [Mr A], the paternal uncle of [Friend A] and also a member of the ANP. [Applicant 1] himself took a new contract with the shipping company was abroad for about 10 to12 months before returning to Karachi where he stayed for a couple of days. He claimed he then joined his wife and children for two months in [Town 2] where they were staying at the time. I stayed there for about 2 months and then took them to Punjab for safety.

20. [Applicant 1] claimed he then returned to Karachi and acted as an informer to the Pakistani army because he had seen some apparent TTP people in Karachi. He claimed he then took an eleven-month seaman contract. He claimed that in April 2013, during that contract, he found out that his [Relative B] who was also a member of the ANP was killed while locking up his shop in [Town 4], Swat; shot in the head by the TTP. He claimed that after his contract finished, he returned to Karachi where he stayed for around two months and then went to Punjab to be with his wife and children. He claimed he did not feel safe remaining in the one place and that this was why he moved to Punjab. In this formulation, seeing his family was apparently less essential than moving from place to place.

21. [Applicant 1] claimed that in July 2016 he returned to work at sea. He claimed he received a telephone call from his father in 2017 saying that his mother was seriously ill. He claimed that in March 2017 he returned to Swat, KPK to see her. He claimed that [Applicant 2] also returned. [Applicant 1] claimed that the Taliban raided and attacked his family home one night while he was there. He claimed his [named relative] who lived two houses down called to advise his family not to go outside as there were TTP people gathered there. He said his neighbours, “hearing noises and knowing that our house was under attack, came to our help.” He sad he believed the people outside must have been TTP “as we do not have any animosity with anybody else.”

22. [Applicant 1] said he left his village because he did not feel safe anymore, but added that he moved to Karachi again just after his mother died. He said he stayed in Karachi for four to five  months and then, in November 2017, went again to sea. He said that [Applicant 2] joined him on the same ship.

23. [Applicant 1] claimed that “[d]uring all these years in Pakistan I continued to be politically active with the ANP whilst I was in Karachi. In Karachi I continued to campaign for the ANP in election campaigns and put up banners supporting them.” It is hard to see on the evidence, however, that he was in Pakistan after 2002 for a period that could be called “all these years” let alone after 2008 or 2009.

24. [Applicant 1] claimed that the [business] that he worked for used to cover all his expenses “while we were moving around in Pakistan hiding from the Taliban.” He claimed the company later stopped paying salary to its employees:

    Therefore, we had to get off the ship in Australia, as without money and job it would be impossible to moving my family running around from the Taliban. However, the main reason leaving the ship was not financial, but was due to the fact that my life was in danger in Pakistan. I got off the ship as I wanted to apply for asylum in Australia because I knew that my life was in danger back home, and I knew that Australia would be the safest place for us to live in peace, without any fear of harm by the militants.

25. [Applicant 1] said he will be seriously harmed or killed by the TTP in the event of return to Pakistan because he was a member of the ANP and the local VDC. He said the authorities cannot protect him due to limited resources and the “random and spontaneous targeted attacks” by the militants. He said it almost impossible for the army, the police or security forces to control or contain the attacks. He said that he sought help from the army and VDC in 2017 after the attack of his family’s house and was told that his family had to take care of its own safety. He said that nowhere is safe in Pakistan as the militants have very strong and vast networks throughout.

    [Applicant 2]

26. [Applicant 2’s] claims to the Department are generally similar to this of his brother [Applicant 1]. They have similar family background, of course, but they also joined the same profession and claim similar affiliations with the ANP and local VDC.

27. [Applicant 2] claimed to be married with one child. He worked as [an occupation 3] before becoming a seaman. He claimed it is a family tradition to join the ANP which he joined in 2005He claimed that as a member of the ANP he did the same things as [Applicant 1] did.

28. [Applicant 2] said that in or around 2008, he became a member of VDC for the same reasons [Applicant 1] did. He claimed he used to accompany injured people to hospital, thus indicating that he witnessed conflict between the TTP and the Pakistani military. He said the VDC supported the army and vice versa. He said that he and other VDC members would inform the VDC leaders if we saw the Taliban around. He said he took part on all the usual VDC duties whenever he was not in Karachi or at sea.

29. [Applicant 2] said that in 2008 the Taliban started targeted killings of members of the ANP and members of the VDC. He mentioned all the same relatives referred to by [Applicant 1], including [Relative A variant].  He said the Taliban took over Swat valley in 2008. However, unlike [Applicant 1], he acknowledged the Pakistani government taking swift and effective action against the TTP in Swat. He acknowledged that the Taliban were defeated and were forced to hide in the mountains, albeit some embedding themselves among the local people and in their home villages.

30. [Applicant 2] described the same circumstances that led to his extended family’s move to   [Town 2] and then to [Town 3] in Punjab. He said his family was able to return to its home village in August 2009. He said that all villagers co-operated with the Pakistani army, and that all who did so were threatened, targeted and warned by the remnant TTP. He said he received a “warning call from the Taliban” in late 2009. He claimed he was accused of helping the army and was told he would be killed for having done so. He claimed he then moved to [a named town], located between Swat and Peshawar, where I met with a broker who arranged for him to travel to [Country 1] where applied for asylum and he stayed for three years. [Applicant 2] claimed to the department that he was not certain whether he was accepted as a refugee. He said he was allowed to remain in [Country 1] and needed to renew his visa.

31. [Applicant 2] claimed that, in January 2013, when he was in [Country 1], he was informed by his father that my mother was seriously ill. He said he had to return home. He returned voluntarily to Pakistan in 2013, in spite of being an applicant for protection from removal to Pakistan at the time. This seems an incongruous decision in the claimed circumstances because he said he was aware at the time of the TTP having killed [Friend A] and his paternal uncle, [Mr A] in 2011. [Applicant 2] claimed to have suffered no harm on return in 2013, although he noted the killing of [Relative B] in 2013.

32. [Applicant 2] said he started working for [Business 1] in April 2013, [with specified duties]. He claimed that after nine months at sea he returned to [Town 2] and stayed there for a few months. He then said that although he stayed in [Town 2] a few months he was moving around from place to place, apparently to evade the TTP. He then took another nine-month seaman contact in August 2014. After that he returned to Karachi where he lived. He seemed to contradict this claim by saying that while he lived in Karachi he was also living in different cities such as Islamabad, [Town 2], [City 1] and even in his home village, because he needed to look after his sick mother, but not remaining long in any one location, due to safety concerns. He said he also needed to see his fiancée who he married in August 2015.

33. [Applicant 2] claimed that in October 2015, while he was on his way home with his cousins and passing by shops in a street, they were attacked by three unknown people whose faces were covered. He said they stabbed him in the shoulder. He said he tried to defend himself while his cousins and some shopkeepers also came to his defence and saw the attackers flee. He said the stab wound was “not a serious injury, [having] only needed minor dressing, which was done by a local dispensary.”

34. [Applicant 2] said that due to that incident in 2015 he applied in 2016 for a visa to [Country 2], but was refused. He later acknowledged at the tribunal hearing that he entered port in Australia several times after 2015 and did not come ashore until the occasion of the [industrial] dispute.

35. [Applicant 2] claimed he had to flee his home village after the stabbing. He claimed that [Business 1], meanwhile offered him another contract. He claimed that in November 2016 he went to sea on another nine-month contract, along with [Applicant 1].

36. [Applicant 2] claimed he and [Applicant 1] cut short their contract and returned to their village in early 2017 because their mother was ill. He claimed their house was raided in April 2017 by “some unknown people (most likely the Taliban).” He described the episode much as [Applicant 1] did. He claimed his mother died about ten days later. He claimed he then moved around Pakistan for safety and then re-applied for a [Country 2] visa, which was again refused.

37. [Applicant 2] made similar claims to his brother’s about the circumstances leading up to [their] crew coming ashore [in Australia]. He said they deserted because they were not being paid and also because they feared the TTP.

38. [Applicant 2] claimed the same fear of harm in the event of return to Pakistan. He made the same claims about state protection and relocation.

    Evidence to the delegate

39. For the purposes of these reviews, both applicants submitted copies of the delegate’s respective decisions. The decision records contain evidence given to the delegate in each case, along with issues of concern identified by the delegate for comment and discussion.

    [Applicant 1]

40. [Applicant 1] repeated many of his claims and added information about the TTP throwing a Taliban threw a hand grenade into an ANP meeting and injuring two male relatives in that incident in his home village. He said another [relative] was shot and killed in [Town 4] in 2008.

1. The delegate put to [Applicant 1] that the security situation in KPK Province had significantly improved and he said this did not matter because the TTP regarded him as an informer. He said he could not relocate to Punjab because there is discrimination against Pashtuns there. He provided to the delegate scanned copies of a purported VDC pass and a purported ANP membership card. He provided a scanned copy of the Death Registration Certificate for [Relative B], dated 17 April 2013, mentioning gunshot as the cause of death. He also provided a scanned copy of an untranslated newspaper article containing a death notice for [Relative B].

2. At interview [Applicant 1] said family were long-time residents of [Town 1] in Swat and only relocated during the army operation in KP province in 2009. The delegate was concerned that because [Applicant 1’s] family never relocated in Pakistan after 2009, he and his family were never Taliban targets.

3. On 6 February 2019 [Applicant 1] was sent, in accordance with section 57of the Migration Act 1958, an “Invitation to comment on information for a protection visa”. Specifically, a comment was requested relating to the fact that [Applicant 1] had visited Australia [numerous] times since [February] 2011, yet had never deserted his ship previously, despite claiming to fear harm from the Taliban since 2008. He was given 28 days to provide a response, but none was received.

4. [Applicant 2]

5. [Applicant 2] also repeated a number of his earlier claims in his interview with the delegate. He added that he lived in [Country 1] between 2009 and 2013 and was granted temporary asylum. He did not suggest that this was the result of a determination; on the evidence provided it may have been prima facie protection or the equivalent of a bridging visa.

6. [Applicant 2] said he has one brother living in [Country 3] and another living in Kashmir. He said he had no relatives in Sindh or Punjab province. He said he joined the ANP in 2005 and had been a member of a Village Defence Committee (VDC) since 2008. He said that the last time he did any kind of work for the VDC was at the end of 2009, although he is still a member. He told the delegate he could not relocate because there is a language issue and Pashtuns face discrimination.

7. The delegate reported the following concerns arising from the interview with [Applicant 2]:

   • The supporting evidence includes a scanned copy of a Death Registration Certificate for his brother’s claimed [Relative] and a scanned copy of his VDC security card. DFAT has confirmed that fraudulent documents are readily available in Pakistan

   • During interview the applicant’s version of events contained inconsistencies relating to his claimed fear of harm. For example, he has claimed to be on the run from the Taliban since 2008, but has also stated that he was married in 2015 and has [a n age] year old [child], [his wife and child] both living in [Town 1]

   • He has claimed that in October 2015 he was attacked and injured by three unknown people whilst walking with his cousins. This claim is unsubstantiated …

   • As a ship’s crewman, the applicant has had countless opportunities to jump ship previously. While he has stated that he was never able to disembark due to tight security, he has visited Australia on multiple occasions previously and I consider that at every one of those occasions he could have jumped ship and sought protection

   [Applicant 1] and [Applicant 2]

8. The delegate had regard to the following information[1] from DFAT:

   Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds. …

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

   Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories. ..”

   [1] DFAT Country Information Report – Pakistan, 20 February 2019

9. The delegate gave little weight to the membership cards of either applicant, having regard to the above-cited information. The Tribunal must, of course, make its own individual findings.

   Material submitted to the Tribunal

10. Prior to the first hearing, the Tribunal received statements from [Witness A] and [Witness B], [an official 1] of the ANP. The statements from [Witness B], both dated 10 December 2022, say that both applicants’ names are on a TTP death list and that their families have received many warnings form the TTP since August 2022.  The statement from [Witness A], dated 9 December 2022, says more generally that former VDC members like the applicants have bene threatened by the TTP and remained threatened to this day. [Witness A] also claims to have been in the same VDC as the applicants prior to coming to Australia. He claims to have been an active member of the VDC from 2008 to 2013, which is arguably longer and more hands-on than either applicant, who variously spent long periods living in Karachi and/or [Country 1] and crewing at sea.

11. The applicants submitted independent information about recent evidence of TTP resurgence in some locations in Pakistan, along with reports of killings of ANP activists including leaders. One of these reports an anti-Taliban leader having been amongst the five killed in a vehicle that drove over a mine in Swat in December 2022.[2] There is an article about a VDC leader [Leader A] who was reportedly killed in an on-road attack by the TTP in September 2022. Other articles report on the reappearance of the TTP in Swat since 2022.

    [2]

12. The applicants submitted photographs of themselves purportedly taken at ANP gatherings.

13. [Applicant 2] submitted a letter from [a named agency] saying he was being treated for symptoms associated with trauma, depression and anxiety. There are also letter from a psychologist and [another agency] relating to [Applicant 2’s] mental health.

14. [Applicant 2] submitted some newspaper articles featuring photographs of him doing [voluntary] work in Australia and identifying him as a “refugee.” It is submitted that he has a valid refugié sur place claim for reasons of having been identified as a refugee or asylum seeker in Australia.

    Evidence given at the first Tribunal hearing

15. Both applicants confirmed to me the approximate number of port entries their vessels had made in Australia over the years since they started working as seamen: around [number] arrivals on [Applicant 1’s] part, around [number range] of the since 2012; and in [Applicant 2’s] case, some [number  range] arrivals since 2013.

    [Applicant 1]

16. I asked [Applicant 1] how much of his time in Pakistan was spent living in Karachi. In reply, he said that every year he spent more time living in Karachi. I asked him if his home base throughout his career as a seaman was not, in fact, Karachi and he said that whenever he was targeted in his home village used to go and stay in Karachi. He appeared to talk here as though being targeted in his home village was a transient phenomenon. I questioned whether [Applicant 1] used Karachi as a place of refuge or as a logical place to reside whilst awaiting seaman contracts, and he said it depended on the situation in his home town.  He said he had “shore accommodation” in Karachi when he was not accompanied by his family, in which case he would take other accommodation.

17. [Applicant 1] told me that the government took control of his district in 2009. He then provided inconsistent evidence about his role in helping the government at that time: he initially said that in 2009 “we” showed the army where the local TTP houses were, but when I asked him for more detail as to who “we” were, he said he alone used to do this.. I asked [Applicant 1] why the authorities relied only on him and he said this was because there were not many people in his area. This response struck me as bizarre in the clamed circumstances as the village supposedly had a fully formed VDC. Meanwhile, [Applicant 1] spent months and months on end away from Pakistan, practically every year  after 2002, thus it would seem foolish for the army to have relied on him alone. His evidence here also clashed with the claim he made to the Department about giving such information to his VDC  leaders, presumably for them to consider before telling the authorities. [Applicant 1] told me that the TTP is still looking for “us,” again not specifying the plurality to which he was referring. Meanwhile, he did not provide any detail as to how he knew this to be the case. I then asked [Applicant 1] to be specific about who “us” were, and he said, “The ANP. I was a member.” His response surprised me as the context of our discussion at this point was the VDC. I asked him to clarify and he said it was in his role as a VDC member that he was asked to identify TTP houses in his area. I asked [Applicant 1] to mane his local VDC chief and he gave a name. I then asked him why the army went directly to him and not his chief, and he said there were different groups. His evidence here struck me as vague and unimpressive.

18. I asked [Applicant 1] if his village still has a VDC and he said, “Yes.” Then he said it had been wound up back in 2013 or 2014. He said that all the men he had identified in his primary application as having been killed had been in his VDC. However, he also told me there were only four or five members of the VDC at any one time.

19. [Applicant 1] said that most of his family remans in Swat. I asked him why he leaves his wife and children to live in Swat if it is so dangerous and he said the TTP never harms women and children. It struck me as odd in the claimed circumstances that he could proceed on the basis of such confidence, as he claimed to have relocated his wife and children out of Swat Valley on past occasions due to fear of the TTP.

20. I asked [Applicant 1] how long he stayed in Swat in 2017 and he said 20 days. I then took him to evidence he had provided to the Department to the effect that he resided in Karachi for four to five months until November 2017: this suggested a much longer stay in the home village after returning there in March 2017. He and his brother [Applicant 2] both agreed that their mother died [around a day in] April 2017. Taking account of the claim about staying on in the village for about ten days, the earliest [Applicant 1] would have left there for Karachi would have been in May 2017. On this evidence, he was in his home village for over a month. In the course of our discussion he mentioned the claim about the family home having been besieged in April 2017. My concern about that is that, as described, it was not just an attack on adult males but on women and children as well, and yet [Applicant 1] left the village without his family, that resides there to this day. In the course of giving evidence, [Applicant 1] said he did not go directly from his village to Karachi. This was a new claim, and I reminded him that it did not appear consistent with earlier evidence. In reply, he said his earlier evidence might have been a mistake.

21. [Applicant 1] said targeted killings by the TTP continue in Pakistan and are in fact on the increase. He said he was being targeted himself. He said there were two recent attacks on government rangers. Asked if he had ever been a government ranger he said he had not.

    [Applicant 2]

22. [Applicant 2] generally agreed with [Applicant 1’s] oral evidence, and vice versa. He said that the recent resurgence of th TTP was evidenced by bomb blasts in Sunni mosques in Peshawar.

23. I asked [Applicant 2] about his time in [Country 1]. He said he applied for asylum there because he wanted to work there. I asked him if this meant that he applied for asylum purely for an economic objective and he said he was not aware at the time that he could apply for asylum in [Country 1]. His evidence here struck me as confused. I asked him how he could have applied for asylum in [Country 1], unaware of a right to do so, and then apparently only do so in order to be able to work. He said, “Yeah I applied [but I] didn’t know I could.” I asked [Applicant 2] what happened to his asylum application and he said there were long waiting times for renewal of his temporary visa so he instead applied for a work permit which he received. He confirmed that he returned voluntarily to Pakistan in 2013. He said he did so because his mother was ill.

24. I asked [Applicant 2] what had been his asylum claims in [Country 1] and he said, “The Taliban issue.” I observed that he evidently abandoned these claims and he said his employers helped him. I asked [Applicant 2] why he left Pakistan after returning there and he said he obtained work as a seaman. He acknowledged moving to Karachi in 2013 as it was close to his work.

25. I asked [Applicant 2] about his time with th VDC and he said the army sued to ask “us” to patrol. He said the mainly Punjabi army relied on locals as the locals were Pashtuns. I asked who he was referring to when he said “us” and he said, “Local people and me.”

26. [Applicant 2] drew my attention to [Relative B’s] 2013 death certificate, which says he did of natural causes but adds in a footnote that he was “shot by firing,” i.e., died from gunshot.

27. [Applicant 2] and the interpreter provided a general translation of the newspaper article about the death of [Relative B], notwithstanding that the article was in Urdu and interpreter was engaged to translate Pashto. The article, on the information provided, was mainly about thanking people for attending the funeral of the deceased.

    Evidence given at the second Tribunal hearing

    [Witness A]

28. The applicants’ [relative] [Witness A] attended the resumed hearing. I invited him to give oral evidence as, this time, the applicants indicated he had specific information about a TTP death list to provide, arising from observations he made during a three-month 2022 visit to Swat. This was not information provided to me at the first hearing when I was being asked to consider taking evidence from [Witness A] on that occasion. 

29. [Witness A] said he spent ten days in his and his uncles’ home village during his two-to-three-month visit to Pakistan. I note that this was the village where he too claims to have worked as a VDC member up to the time he left Pakistan in 2013. I note he claims in his statutory declaration to have been granted a protection visa in Australia and subsequently obtained Australian citizenship. I draw attention to this because he voluntarily returned in 2022 not only to Pakistan but to his home province and village. In some cases, a person may feel confident to re-enter one’s country of nationality having Australian consular protection there. However, it is hard to see how one could be confident about this in the face of the TTP in the borderlands of Pakistan.

30. [Witness A] said his parents in the village were just living their day-to-day lives. He said he then travelled with his parents to visit Peshawar, just to spend time with them. However, he then said he needed to flee the village soon enough because he did not want anyone to know he was back in the village. I asked him if any event forced him to leave and he said, “Anything could happen.” I asked him what he wanted to say about the TTP death list and he said that the reappearance of the TTP in Pakistan is reported on the Internet social medium YouTube. He said the TTP has been targeting people who helped the Pakistani army. He then said that the TTP posted at a local mosque a list of names of persons it intended to execute. He said the two applicants’ names were on that list. He did not suggest that his name was on the same list, notwithstanding that he purportedly lived until 2013 in the village, uninterrupted, say, by contracts at sea.

31. I asked [Witness A] if he had any evidence of the existence of that list posted in the mosque, say, in a mobile telephone photograph. In reply, he said he had none. I expressed surprise that a former protection visa applicant, interested in his [relatives’] circumstances, did not take a photograph of the alleged list and he said he had not thought at the time he would have to give evidence to the Tribunal.

32. I asked [Witness A] to tell me when he saw the death list with the names of his [relatives] posted at the mosque; he said it was in August 2022. I note there is no specific mention of this list in [Witness A’s] statutory declaration of 9 December 2022, in which he merely generalised about how locals were targeted by the TTP in the past for being members of his local VDC and, he believed, still were being targeted. At seeming odds with this position is the fact that [Witness A] set foot in his village at all in 2022, especially at a time of notable TTP resurgence, given his own claimed profile as a former VDC member of sone seven years’ standing.

    The witness, [Witness C]

33. I asked the applicants about one of the proposed witnesses [Witness C]. An Australian mobile telephone number had been provided, but he too had written a statutory declaration. I ascertained from the applicants that [Witness C] had been in Australia since 2012 or 2013. The applicants did not suggest any potentially critical questions I might ask him. Having given the matter due consideration I indicated that I would have regard to this witness’s testimony from his 15 December 2022 statutory declaration.

34. In his statutory declaration, [Witness C] claims he arrived in Australia in 2012 on a student visa and was later granted a PV. He said he had known the applicants since his own birth and feared for their safety in Pakistan.  He said their extended family was heavily involved in the ANP. He described some of the local damage he had seen during the campaign to win back Swat Valley from the TTP between 2004 and 2009. He claimed that local VDC members were being targeted by the TTP and are still being targeted today.

    The witness, [Witness B]

35. I asked the applicants about [Witness B], the ANP [official 1] for Swat Valley and author of the affidavits supporting their PV applications. He had provided a Pakistan telephone number. The applicants drew attention to paragraphs 8 and 10 of their respective statutory declarations: one saying that VDC members were targeted by the TTP in the past and, according to the author’s belief, also in the present; the other saying that there is “no safe area or place” for them I Pakistan. It was suggested to me that [Witness B] might also be able t tell me about the “death list” that [Witness A] claimed to have seen in the local mosque in August 2022. I thought about this, noting that [Witness B] made no mention in either statutory declaration of having seen any such list. It was suggested to me that because it would be after midnight it would not be an easy time for [Witness B] to give his attention to this matter. Weighing all this I decided not to telephone [Witness B] in Pakistan, indicating that I would have regard to the testimony in both of his December 2022 statutory declarations. 

36. Relevant to there being no safe place for a VDC or ANP member to relocate in Pakistan, I asked the applicants how it was possible for [Witness B] to operate as an ANP [official 1] in his home district of Swat. [Applicant 2] said that [Witness B] was maybe “moving around” as all ANP members are in danger. This claim, however, seemed to have no support in either of [Witness B’s] virtually identical statutory declarations, as he was evidently stationary in Swat. [Applicant 1] said, “He’s not staying in one spot.” I then asked [Applicant 1] whether he knew this for a fact and he said he was “not sure.” The adviser then intervened to suggest that it might only be a matter of time before the applicants, if returned to Pakistan, faced the same fate as [Leader A], the peace committee leader whose vehicle drove over an explosive device, killing him and others in September 2022.[3]

    [3]

1. Ultimately, I received no satisfactory explanation during the hearing as to how and why, in the circumstances claimed by the applicants, the ANP, its office bearers and members are generally functioning, campaigning and accumulating votes in election in KPK Province up to this day.

   [Applicant 2]

2. We discussed the [Newspaper 1] articles from December 2020 and January 2021 featuring [Applicant 2] as a [volunteer] worker. One of the two articles identifies [Applicant 2] as a “refugee,” a former resident of Pakistan and former [seaman]. The adviser said this material in itself bases a sur place claim. Generally, when a sur place claim arises, it is appropriate to have regard to s.5J(6) of the Act:

   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.

3. Since the news articles, purported here to generate the sur place claim, were created and published by journalists, and since [Applicant 2] was part of a team that saw broad social benefit in the publicity offered, there is no way that I would regard this conduct as something in which [Applicant 2] engaged for the purposes of strengthening his PV claim, let alone solely. Hence, for the purposes of s.36(2)(a), I may have regard to it.

4. That said, the testimony at the hearing did little, if anything, to suggest any kind of sequence wherein [Applicant 2] would face serious harm in Pakistan in the reasonably foreseeable future for having been identified as a “refugee” in a regional Australian newspaper over two years ago. Interviewed in one of the articles, [Applicant 2’s] comments about Pakistan are entirely neutral.

5. [Applicant 2] was given an opportunity during the resumed hearing to discuss the attack he claimed to have sustained in 2015 in his home village. He showed me a shallow, approximately 2.5cm scar near his left collarbone. He said this was a stab wound from a knife. I can accept that it caused by a sharp object, but without more information, it was hard for me to accept unequivocally that it was the result of stabbing. I asked [Applicant 2] for more context and he said he was going home one night when people attacked him. I asked him if any of the attackers were familiar to him. He said he thought they were TTP because their heads were covered.

6. I asked how long the attack lasted and [Applicant 2] said it lasted two to three minutes. He said he was attacked by three people. I asked if he was only stabbed once during the whole of the attack and he confirmed this. I asked him how he managed to sustain only one scar during a two-to-three minute attack in which he was outnumbered, and he said, “We make noise.” I asked again and he said that he tried to escape and that his cousin was there. He said his cousin went on to study in Islamabad and, currently, in [another country].

   [Applicant 1] and [Applicant 2]

7. The adviser intervened to say that both applicants suffer depression, anxiety and suicide ideations. She said they cannot ever go back to their former jobs as seamen, presumably given the industrial action they joined in September 2018. She said they have survivor guilt after their friends’ “assassinations” in 2009 and the killing in 2013 of their [Relative B]. As noted, she also said it would only be a matter of time before they face the same fate suffered by [Leader A] in September 2022.

8. Both applicants told me that their wives and most of their children still live in their family’s home village in Swat Valley. [Applicant 2’s] [child] is [age range] and attends school in the village. [Applicant 1] said he has [an age] year-old [child] studying in Islamabad. [Another child] is [age]. He said his [age] year-old [child] is a student in the village. I asked him how [this child] managed not to have been kidnapped by the TTP, say, to punish him, [Applicant 1], for his past activities and for having evaded the TTP for so long. In reply, [Applicant 1] said his [age] year-old father accompanies the [child] on foot to and from school every day. I put to [Applicant 1] that this seemed like a pattern of behaviour that a hostile TTP could easily exploit, and he said that the school has a security guard and is not far from home. I made it clear to both applicants that, given the TTP supposedly knew where their mostly male family resides, there had been surprisingly little to suggest any relevant interference in their lives. [Applicant 1] said that everybody lives together, seeming here to imply that they family enjoys some kind of safety in numbers.

   Independent country information

9. I have had regard to the following recent analysis[4] from the Jamestown Foundation:

   Since late 2022, the Tehreek-i-Taliban Pakistan (TTP), also known as the “Pakistani Taliban,”—an alliance of jihadist networks that have fought the Pakistani state since 2007—has been regrouping. This is especially so in the Khyber Pakhtunkhwa province on the border of Afghanistan. For example, there was an attack on October 10, one day after the tenth anniversary of the shooting of Nobel Laureate Malala Yousafzai. In this incident, unidentified armed men opened fire on a school van in Swat district, killing the driver and injuring students (Dawn, October 10). The attack occurred following the resurgence of the TTP militants in Swat, which indicates that the TTP is attempting to make its presence felt in Swat and elsewhere in the province.

   Shortly after this attack, the TTP stepped-up its attacks against Pakistani law enforcement, killing two Inter-Services Intelligence (ISI) officers (Dawn, January 7). One of the deadliest attacks by the TTP occurred in Bannu, a town in Khyber Pakhtunkhwa province, where TTP militants captured several Counter Terrorism Department (CTD) officers. By the end of the recovery operation that followed, 25 TTP fighters were killed, as were two commandos of the Pakistani army (Dawn, December 2).TTP militants are now re-emerging in the mountainous areas of Swat. Like in the past, they are conducting improvised explosive device (IED) attacks and targeted killings in Swat valley. This has resulted in a backlash from the civilian population, however, with hundreds of people taking to the streets to protest against the rise of militancy throughout Khyber Pakhtunkhwa province (Dawn, September 16; Dawn, October 12). Among other controversial incidents, in one Swat attack, a peace committee member and his police guards were killed in a remote-controlled bomb blast, which the TTP claimed responsibility for (Dawn, September 13) ...

   The TTP’s siege of Lal Masjid in 2007 marked the beginning of several years of bloodshed in Pakistan (Dawn, July 9, 2017). However, the military’s subsequent Operation Zarb-i-Azb weakened the TTP network in FATA (Federally Administered Tribal Areas) and pushed TTP militants into Afghanistan. This weakened the group and reduced the number of its attacks (Daily Times, November 14, 2016). Following the Afghan Taliban’s takeover of Kabul in August 2021, their Pakistani counterparts in the TTP began regrouping. This was contrary to the expectations of Pakistani policy-makers, who had incorrectly assumed the Afghan Taliban would cooperate with Pakistan’s government as an ally ...

   Of major towns in the region, Swat has the longest history with TTP’s militants. Under Mullah Fazlulah’s leadership, the TTP had originally challenged the state for control of the Swat valley as early as 2007 (Express Tribune, November 7, 2013). The Pakistani military feared that the TPP might try to capture the capital of the country, Islamabad, and therefore launched Operation Rah-e-Rast to drive out the TTP militants in Swat. The military was ultimately able to rid the Swat valley of TTP militants, for a time (Dawn, May 2009).

   Meanwhile, the Pakistani state has pressured the Afghan Taliban to bring TTP militants to the negotiating table. Although the Afghan Taliban did so, and negotiations were attempted, they were not a success. The TTP did not concur with the Pakistani civil and military leadership’s demand to abandon their position on jihad, nor did the Pakistani delegation concur with several of the TTP’s requirements (Terrorism Monitor, October 21). The TTP has also been using Afghan soil to carry out attacks inside Pakistan and against the Pakistani security forces at the Pakistan-Afghanistan border. Unsurprisingly, this has become a source of tension between Afghanistan and Pakistan. On the other side, Pakistani security forces carried out attacks against the TTP’s safe haven inside Afghanistan, which drew protests from Kabul (Gandhara, April 20).

   [The remainder of the article speculates as to the “not inconceivable,” relying on a premise wherein the Pakistani state does not take action as promised and as done in the past to push the TTP back again.]

   [4] “The Pakistani Taliban’s Reemergence in Swat,” The Jamestown Foundation, 9 February 2023,

10. I have had regard to the following report about the bombing of a Sunni mosque in Peshawar in January 2023:

    At least 59 people have been killed by a suicide bombing that apparently targeted policemen praying in a mosque in Peshawar, Pakistan.

    The mosque is within the tightly guarded police headquarters area.

    "Terrorists want to create fear by targeting those who perform the duty of defending Pakistan," Prime Minister Shehbaz Sharif said.

    The Pakistani Taliban denied involvement after an initial claim by one of its commanders.

    The group ended a ceasefire in November, and violence has been on the rise since.

    In December it targeted a police station - like Peshawar, in the north-west of the country - leading to the deaths of 33 militants.

    A hospital spokesman told the BBC the death toll stood at 59, while 157 people had been injured.

    Between 300 and 400 police officers were in the area at the time, Peshawar police chief Muhammad Ijaz Khan told local media.

    The mosque is in one of the most heavily controlled areas of the city, which includes police headquarters and intelligence and counter-terrorism bureaus.

11. These attacks on police inside police precincts appears to be a manifestation of a In November 2022 call by the TTP to its members to carry out fresh attacks across the country, and “to target political leaders in particular.”[5]

    [5] “Pakistan Scrambles as Taliban Threat Appears on the Horizon,” Asia Pacific Foundation of Canada, 27 January 2023, >

    I have had regard to the following information from DFAT[6] about treatment of returnees to Pakistan, including from western countries like Australia:

    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. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally.

    5.29 People suspected of or charged with criminal offences in Pakistan are likely to face questioning on return, irrespective of whether they departed legally or not. DFAT understands that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people are usually released within a few days after being bailed out by their families or having paid a fine, although the law provides for prison sentences. Those wanted for a crime in Pakistan or who have committed a serious offence abroad may be arrested and held on remand or required to report regularly to police.

    5.30 Returnees are responsible for arranging their own onward transportation from their point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the IOM and/or domestic NGOs. Returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration tend to face a higher risk of financial hardship and familial shame. A small percentage of returnees do not reintegrate and go abroad again to seek asylum.

    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 [.]

    [6] DFAT COUNTRY INFORMATION REPORT PAKISTAN, 25 January 2022

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

12. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[7] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[8]

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

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

13. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[9] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[10]

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

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

14. In regard to this case, I accept that the applicants are Sunni Muslim brothers who come from [Village 1], [Town 1], in the Swat Valley region of KPK Province, Pakistan, where their immediate and extended families still reside.

15. I have had regard to material in this case indicative of the applicants suffering depression, PTSD and anxiety. I do not find these reports independently corroborative of the applicants’ claims. I have considered whether the advice in the reporting indicates that either of the applicants might have been prevented by circumstances beyond his control from providing cogent evidence in this matter, but on due consideration I am not satisfied that this is the case in respect of either applicant.

    [Applicant 1]

16. I accept that [Applicant 1] commenced his career as a seaman in 2002 and that he also joined the ANP in the same year. In assessing what weight to give [Applicant 1’s] ANP membership, I have had particular regard to three factors: his claimed level of activity and contribution to the ANP; how long ago he was actually involved with the ANP; and the frequency of his presence and capacity to contribute at all given long periods away in Karachi, other parts of Pakistan, on sea and in Australia.

17. At its best, [Applicant 1’s] evidence of what he used to do for the ANP indicates only very low-level and merely intermittent involvement with that party, and only up until several years ago at that. Overall, his activities were only vaguely described and the information from the [official 1] [Witness B] about his having “attended and assisted” at protests and the like was also very vague. In fact, given the length of time [Applicant 1] claims to have spent under contract at sea from 2002 onwards, and given that during the height of hostilities between the army and the TTP in Swat, he and his family spent months on end essentially evacuated from his home village, I am of the view that [Applicant 1] has greatly exaggerated the scale, frequency and significance of his activities with the ANP to enhance his PV application.

18. I have reached a similar view about [Applicant 1’s] claims regarding the local VDC. All villages had VDCs in those days. Few able-bodied males would not have been trained to serve in them. The most valuable and more conspicuous ones would logically have been those who were not as sea for none or more months of the year. [Applicant 1] was relatively rarely residing I his village from 2002 onwards, and his time at sea picked up substantially around 2009. Meanwhile there is inconsistency in his evidence about what he did in the VDC that got him into trouble with the TTP: on the one hand he has suggested that he alone directly helped the army identify houses belonging to the TTP in 2009; on the other, he claimed he used to give this information to his VDC leaders, claiming in th process that his role in the VDC at best was below that of a leader. On the evidence before me, I find that [Applicant 1] has exaggerated his role in the VDC, and hence its ongoing legacy, in order to strengthen his claim to a PV.

19. On this basis of these two factors involving inconsistency and exaggeration, I have concerns that [Applicant 1] is not a reliable witness in the matter of his PV application.

20. I accept that there are occasional targeted killings of ANP figures in Pakistan, some in recent years. I accept the claims about the killing of [Friend A] in 2011, [Mr A] in 2012 and [Relative B] in 2013. I accept that these people were known personally to [Applicant 1]. I accept that all these people were killed by the TTP. I accept that two other ANP members known to [Applicant 1], called [Relative A] and [Friend B], were injured by the TTP around that time. On the evidence before me they were casualties during a particularly upheaved period during which the TTP was being eradicated from the region they hitherto controlled. Even acknowledging that all of these people and [Applicant 1] had joined the ANP, and even acknowledging that they may all have had roles in respective VDCs, I am not satisfied on the evidence before me that these individuals and [Applicant 1], who rarely resided in his home village after 2002, ever had anything sufficiently or significantly in common such that [Applicant 1] faces a real chance of serious harm in the reasonably foreseeable future.

1. I am not satisfied on the evidence before me that [Applicant 1] faces a real chance of serious harm in Pakistan for having claimed asylum or even having resided in Australia, notwithstanding its potential reputation in Pakistan as a “western country.”

   [Applicant 2]

2. I accept that [Applicant 2] joined the ANP in 2005 and was an active member of a Village Defence Committee (VDC) from 2008 to 2009. As with [Applicant 1], I have had particular regard to three factors in In assessing what weight to give [Applicant 2’s] ANP membership: his claimed level of activity and contribution to the ANP; how long ago he was involved with the ANP; and the frequency of his presence and capacity to contribute at all given long periods away in Karachi, other parts of Pakistan, on sea and in Australia.

100.   At its best, [Applicant 2’s] evidence of involvement with the ANP indicates brief and only very low-level and merely intermittent involvement with that party, and nothing notable since 2009. As with [Applicant 1], his activities were only vaguely described and the information from the [official 1] [Witness B] about his having “attended and assisted” at protests and the like was also very vague. On the evidence before me, [Applicant 2] has also exaggerated the scale and significance of his activities with the ANP to enhance his PV application.

101.   All this stopped in 2009 because [Applicant 2] lived in [Country 1] for three years and soon after his return to Pakistan in 2013 his career at sea began, keeping him away from Pakistan and, more to the point, his home village and all social activity there, for long and significant periods.

102.   [Applicant 2’s] description of his activities with the former VDC in his village also strike me as unremarkable. In any event they lasted only a year or so. I give more weight to [Applicant 2] saying that he ended his active service with the VDC in 2009.

103.   I accept that [Applicant 2] applied for asylum in [Country 1]. I accept that he understood little of what his asylum application meant at the time and that he might not have been aware the whole time that it was an asylum application, because on his evidence his intention and objective in [Country 1] was to work. I give some cumulative weight to [Applicant 2’s] economic objectives at that time. I nevertheless find that [Applicant 2] at some stage understood he was an applicant for asylum in [Country 1]. However, on the evidence before me, he was not a genuine applicant for asylum in [Country 1], for he returned voluntarily to Pakistan and made no effort to flee the country again until lodging, in 2018, a PV application during or soon after a regular port stop (one of many) in Australia.

104.   I accept that [Applicant 2] commenced his career as a seaman in April 2013. In light of this, and in light of his not having had anything to do with the VDC since 2009, I find that he had no active affiliation with the ANP after the same year. I find that his lack of involvement with these entities was due in part to the VDCs having finished their work and having folded in his home region, to his activities with the ANP having only ever been very low-level to the point of being perfunctory, and out of greater interest on his part in pursuing work and income as a contract seaman.

105.   Given how little he could have been involved with the VDC or the ANP, and only up to 2009 at that, given what I have found to be some exaggeration in his claims, given that his asylum application in [Country 1] was evidently disingenuous, and given the quality of his evidence about the perpetrators seeming to be TTP, I am not satisfied that [Applicant 2] sustained the scar near his left shoulder in a targeted attack by the TTP or any socio-political entity, extremist, or Islamist or other. Also, I find [Applicant 2’s] further returns to his home village inconsistent with the message he would logically have taken from such an attack in 2015. I can accept, however, that he may have sustained a scar near his left shoulder, albeit in some irrelevant context, in 2015. 

106.   On this basis of concerns discussed above, I find that [Applicant 2] is not a reliable witness in the matter of his PV application.

107.   As I have found in the case of [Applicant 1], I accept that there are occasional targeted killings of ANP figures in Pakistan, some in recent years and I accept that the five people known to the applicants died or were injured by the TTP between 2011 and 2013. As already stated, I find that these individuals were casualties during a particularly unstable time that was followed by  victory for the army and incorporation of the applicants’ home region into Pakistan and a state-controlled province. As I have found in the case of [Applicant 1], I am not satisfied that [Applicant 2] has ever had anything sufficiently or significantly in common such that he faces a real chance of serious harm in the reasonably foreseeable future, notwithstanding a brief period of activity prior to 2009 with the ANP and the local VDC.

108.   I have given close consideration to the material in the two [local] newspapers, one of which identifies [Applicant 2] as a “refugee” and to the view that this grounds a refugié sur place claim. I am not satisfied on the evidence before me that this material has come to any potentially significant attention in Pakistan. I note DFAT (2022) reporting that, to its knowledge

… 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.

109.   I also note DFAT observing that

… societal or official discrimination or violence can still occur due to the reason [returnees] attempted to migrate, or because of behaviour or opinions they displayed while living abroad [.]

110.   Having regard to the evidence before me, including the DFAT material, I am not satisfied that [Applicant 2] faces a real chance of being persecuted in Pakistan for reasons of his being displayed in the news reports, even as a refugee in one of them. I give very little weight to these news reports overall. As in the case of [Applicant 1], I am not satisfied that [Applicant 2] faces a real chance of serious harm in Pakistan for having claimed asylum or even having resided in Australia, notwithstanding its potential reputation in Pakistan as a “western country.”

[Applicant 1] and [Applicant 2]

111.   I note that in the case of most of the killings of relatives/colleagues mentioned in these applications that they occurred between 2011 and 2013. This was a period of pre-election violence when over 240 people were killed, over half of them by the TTP.[11] This was also a period of backlash by the TTP after its effective removal from the Swat region by the army in 2009 and was part of the reason why Operation Zarb-e-Asb was launched in 2014, eradicating the TTP from Swat and surrounding regions until August 2022 when small presences reappeared on “few mountain tops between Swat and Dir … far away from population.”[12] I am not satisfied on the evidence before me that the deaths described provide a basis for finding that there is a real chance of the applicants facing serious harm in Pakistan in the reasonably foreseeable future.

[11] “Pakistan Scrambles as Taliban Threat Appears on the Horizon,” Asia Pacific Foundation of Canada, 27 January 2023, “Taliban start leaving Swat after talks,” The International News, Pakistan. 14 August 2022,

112.   Closer to the present day, it is reported that there were 294 deaths from terrorist attacks in KPK Province in 2022, and there have been some since.[13] I have noted that the TTP has told its members to target political leaders. Even so, I do not accept on the evidence before me that [Witness B] of the ANP is “moving around” Pakistan to stay ahead of assassination by the TTP. Both applicants revealed at the second Tribunal hearing that their suggestions to this effect were baseless. I find on the evidence before me that [Witness B] is in Swat doing what he does as ANP [official 1] and I give some weight to this, notwithstanding that there have been some targeted attacks by TTP on police, politicians, a peace committee member and the like in KPK Province in recent years. I find that this is a sound indication of the ANP being generally unaffected by recent developments. Given that I am not satisfied that the applicants were ever as active in the ANP as they say they were, I am not satisfied that they have genuine interest in being active in the ANP in the reasonably foreseeable future (ref. s.5J(6) of the Act), and hence I find they will not have to alter their behaviour in Pakistan to avoid serious harm. Ultimately, I consider it merely bald speculation that they would be harmed due to their ANP membership in the reasonably foreseeable future.

[13] “Pakistan Scrambles as Taliban Threat Appears on the Horizon,” Asia Pacific Foundation of Canada, 27 January 2023,

113.   I am particularly troubled by the claims about the TTP death list purportedly displayed and seen in the applicants’ local mosque, in particular the one said to have been displayed at the mosque in August 2022. Given that the TTP are reportedly not located in Swat population centres, and given the information about mass public protests against the TTP’s reappearance, I consider it highly unlikely that the TTP could post any death list in a village mosque, let alone that it would stay posted long enough to be seen by the general public. On the evidence before me, I am not satisfied that the claim about the death list in the mosque naming [Applicant 1] and [Applicant 2] as TTP assassination targets is in any way factual. I am not satisfied with the explanation given by the applicants’ witness as to why he did not try to photograph such an item. I am confident that he fabricated having seen it. I am all the more confident in this finding since the applicants sought no alternative means of having the list photographed and/or verified as real. Opportunities to refer to this specific list and its specific location were available to the applicants in December 2022 but no mention was made. On the evidence before me, they did not do so because it did not and does not exist. Again, it reflects poorly on the applicants’ overall reliability as witnesses in this matter that they have proffered this unreliable claim.

114.   In light of this concern as to the applicants’ reliability, I do not accept that their house was besieged or surrounded in April 2017 or that they fled in haste to Karachi.

115.   I give weight in this matter to the fact that the applicants have their families still living in their home village, a place they visited again and again between periods of work abroad. I do not accept on the evidence before me that moving away from the village is impossible or impracticable for any of them. Accordingly, I find that the applicants can return to reside in their home village without facing a real chance of being persecuted.

116.   I accept that both applicants came ashore [in Australia] in September 2018 in circumstances of irredeemable acrimony with their captain on [their named ship] and their employer [Business 1]. I accept that their names are probably on an employment blacklist as far as the merchant marine is concerned; they will never be contract seamen again. This is arguably unfair, but the evidence before me does not support a finding to the effect that the applicants will be denied employment in other fields, let alone for a relevant reason. They both had jobs in other fields before their crewing days and no material before me suggests that it should be any different in the future.

117.   Again having regard to the DFAT report (2022) I am not satisfied on the evidence before me that the applicants’ situation in the [industrial] dispute involved real or imputed reasons to migrate or “behaviour or opinions they displayed while living abroad” that would give rise to a real chance of their being persecuted in Pakistan in the reasonably foreseeable future.

118.   I have considered whether the applicants face a real chance of being persecuted in Pakistan for reasons of being related to individuals like [Witness A] and [Witness C] who have both been granted protection in Australia. On the evidence before me, I am not satisfied that they do.

119.   Having considered all of the evidence before me in its entirety, I am not satisfied that the applicants face a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any separate or cumulative reason cited in s.5J(1)(a). Their claimed fear is not well founded. They are not refugees.

120.   For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a). 

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

121.   Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

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

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

124.   Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

125.   “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

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

127.   Accepting that the applicants are nationals of Pakistan, I find that Pakistan is the receiving country in this matter.

128.   The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have failed for want of credibility and/or for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.

129.   On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Pakistan, there is a real risk that the applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.

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

Conclusions

1. For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore they do not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

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

Luke Hardy
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

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.

…