1911002 (Refugee)

1911002 (Refugee) [2023] AATA 4022 (23 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr IQBAL CHAUDHRY (MARN: 1174774)
CASE NUMBER:  1911002
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:23 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2023 at 5:07pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – fears harm from TTP – refused to recruit people to fight for them or to undergo weapons training himself – TTP attempted to recruit the applicant as a recruiter – no medical evidence to support his claim of being in great pain – delay in applying for protection – applicant was not a credible witness – fabricated claims – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424, 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 9 April 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 20 October 2017.
The applicant appeared before the Tribunal on 2 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu 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 applicant made the following claims in his protection visa application (shortened where appropriate):
Family Background: I have four siblings, two brothers and two sisters, all married, and brothers residing with my parents at [address].
Educational background: I got admission to [a course] but could not complete due to leg injury
My Decision to Leave Pakistan: I came to Australia on a student visa on [date] March 2014, I was a good practising Muslim in Pakistan. I used to attend mosques in the area quite regularly. Group of Taliban preachers used to visit those mosques. They used to preach hatred against non-Muslims. I never wanted to affiliate with these groups. But slowly and slowly they used to impress young minds for their agendas.
I used to listen to them and was impressed with their love for religion as well as country, but at the same time they used to speak about non-believers as if they were not humans at all. I was convinced to follow their teachings and act according to their instructions for the sake of religion as well as our war-torn country.
Once, I agreed to follow them then I received the instructions to move to some other areas in Pakistan to spread their message. But, at the time I realised there was something wrong. I felt they were training the youth for some hidden agenda, as youth were introduced to ammunition and usage of it; which made me suspicious. As a result, I refused to join them, and then I was threatened first and then tortured. I was shot on my leg after my repeated resistance.
There is no safety in Pakistan as anarchy and restless is on the rise and Pakistan as a state does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously. I cannot expect help from them.
AAT Hearing
The applicant claimed that if he returned to Pakistan he would be killed by the Taliban group (confirmed to be Tehreek-e-Taliban – TTP) because he would not follow their instructions to go around the country and recruit members and undertake weapons training himself. He said at one point that they were a bad group and he wasn’t sure they were TTP. It was put to him that groups would normally indicate who they were and he claimed he was only [age] at the time. It was put to him that they were wanting him to undertake weapons training and was asked who they were. He said they could be TTP or other terrorist groups. He then said he believed they were TTP. He had no other claims.
It was put to him that in his statement he had referred to the group as Taliban so it was assumed they were. He agreed. In February 2013 he was just going to his normal Sunni mosque in Abbottabad to pray – there were so many mosques in his city. A group of people approached him and complimenting him for his religiosity. They tried to lure him towards them through praise for his faith and they asked him to join them for meals.
They would often talk about Islam and what their duty for it was. Over time they began talking about how Islam was under threat from outside powers (Christians, Hindus) and that these people weren’t humans. He didn’t feel comfortable with this type of discussion. They also began talking about travelling and fighting for Islam and spreading the word and approaching the young people to bring them along.
They then began telling him he needed to do weapons training and he realised then they were not good people. The request to recruit people and undertake weapons training began after five or so months (August) but had laid the foundations for this earlier. He refused and they were angry at this – they called him a coward for doing this. They began chasing and following him around town and making signs that he was being chased.
Asked what he was expected to recruit people for, he said it was to fight for Islam (do weapons training). Asked whether he was asked to do weapons training first or to recruit others he said it was for him to do weapons training first. Asked if he met the people in the mosque still at this stage, he said that he met them at the mosque and at the hotel where he had meals with them. Asked if he ever told the imam of the mosque about what these people were doing in his mosque, he said that he didn’t as he saw the imam sitting with them and e he was part of them.
Asked if he ever reported the imam and the group to any Pakistani security authorities or to authorities in Australia, he said that he didn’t. It was put to him that his claim largely rested on his oral claims and the fact that he knew the mosque imam but not the TTP members (he said he didn’t know the imam personally but it was put to him that he knew who he was at least). He claimed that the TTP weren’t discussing weapons training openly but only privately and that imams at the mosque changed all the time and he didn’t know this one personally.
It was put to him that imams didn’t normally change around often as their incomes were tied to the mosque. He agreed. He was asked why he didn’t report to the authorities, he said they told him they would kill him if he did. Asked if he told Australian authorities about the TTP and association of the mosque and imam, he said that he didn’t as he was still in shock and trauma.
He agreed that they became angry with him from August and he tried to avoid them but they followed him, chased him, harassed and mentally tortured him. Asked what he meant by these terms specifically he said they would look at him and he can feel them looking at him wherever he went. He saw the same people in the mosque in ither areas in the city.
They walked behind him and he felt they knew his movements and timings and felt they were monitoring him. They followed him and looked at him. Asked if they physically chased him he said they followed him and monitored his movements. This continued for about a month – to September. They also physically assaulted him by hitting his head against the wall and told him to follow their orders and their preaching. He was also shot in the leg and they removed two toenails – this was done at the same time his head was pushed against the wall. They told him that he would feel the pain.
He still refused but remained silent. In October they were harassing him and he was shot in the leg. They were following him and tried to abduct him on that day. He was returning from [College]. This was about half an hour from home walking and he was on his own. He knew he was being followed and he tried to run from them. He saw them – about two people 5-6 metres from him. He then began to run and he was shot in the leg. He couldn’t see whether these two people had weapons.
He felt the bullet in his leg and next thing he remembered he was in hospital and had been operated on. The trauma and shock meant he couldn’t tell them about the incident. He realised how much he and his family’s lives were in danger because he had sat with these people. Asked where his family was, he said that his brother and family and younger sister went to [Country 1]. His father was there at the time, working there. His brother went to [Country 1] in 2014 because he was being asked by the TTP about the applicant’s whereabouts.
When he spoke to his mother she said she was glad he was in Australia. He then said his mother was still in Pakistan and the TTP was harassing her and they had to sell the family house and move. Asked if he had mentioned this move previously he said that he hadn’t. It was put to him that he had stated in his protection visa application that his brother was in Pakistan. It was put to him that he had said that his country of residence was stated as Pakistan – he claimed that he didn’t understand the difference on the form and he should have said resident in [Country 1].
The applicant had another brother [name] and he was currently [age] – asked if anything had happened to him he said that he hadn’t heard if anything had happened as his brother was a baby at the time these things happened. His mother didn’t tell him anything about his brother. It was put to him that it was strange that he claimed his family was harassed yet his brother remained untouched. He said there were no problems with his brother.
He was asked if he had any evidence such as photos that could place his shotgun injury at October 2014 – he said that he didn’t as he didn’t think about taking photos. He was shot just above the lower ankle. It was put to him that there were a couple of Taliban just behind him, he runs and they shoot him above the ankle so it wasn’t life-threatening but it was immobilising. He was asked why, if the intent was to kill him they didn’t just do it then, or if the intent was to kidnap him then they would have had transport nearby and could have loaded him into it easily given he had blacked out. His account didn’t appear to make sense as the Taliban didn’t appear to have done anything after shooting him in the lower leg.
He said he didn’t know what they were going to do and he was the victim. After he was shot he was traumatised and didn’t know what happened after this. He had no memory of who took him to the hospital. Asked again if he knew who took him to hospital he said that he didn’t. He was very afraid after he left hospital as the Taliban didn’t value a person’s life. He left Pakistan in March 2014. Asked what he did between the shooting and when he left, he said he was recovering and studying for his IELTS.
He came to Australia because he was in fear of his life. Asked why he chose to Australia over other countries to save him. He said someone advised his mother that it was a good and safe country. Asked if he was at home between October 2013 and March 2014 he said he was moved around to different houses, including an aunt’s house about 30 km away. He had not mentioned this previously because he didn’t think he would have to write it down. Asked if his student visa application listed these other addresses he said that his residential address was still his home so he didn’t. He said that the places were in the same area and it was put to him they weren’t really in the same area.
Asked if he applied for protection when he came to Australia given he had been shot, had his head bashed against a wall and toenails removed, had to move from house to house, he said he applied in October 2017. It was put to him that there was a three and a half year delay, and he claimed that he was in shock, trauma and in pain. He said he wished he could have but he had no access - it was put to him that he had health insurance and spoke English yet there was no indication that he had sought any medical treatment for mental health issues or the pain he claimed he felt because of the gunshot wound he had received.
He said that from 2014 to 2017 and moving from Melbourne to Sydney he could not socialise with anyone because of the trauma. Asked if he had received any trauma counselling since he had applied for protection in 2017 and he said that it was hard to open up to anyone. It was put to him that the Tribunal was trying to determine whether he was being truthful and he was unable to provide any evidence. It was put to him that he had also come to Australia five months after allegedly being shot and operated on and in great pain yet there was no medical evidence to support his claim of being in great pain.
He stated that he may not have been mature enough to seek medical help – he was terrified and traumatised and couldn’t help himself. He found a friend who he trusted and she left him and he went to [a river] and was standing there and was going to jump in and kill himself.
Asked if he completed his course of study, he said that he was in so much pain and he couldn’t continue to study and they gave him his cancellation letter. Asked if he went to the education provider and explained what happened to him, he said that he didn’t and repeated that he was in so much pain at the time and suffering from trauma. It was put to him that there were doctors in Pakistan that people went to if they needed medical treatment, he was[age] years old when he came to Australia so it was reasonable to believe that he knew he could have gone to see the doctor in Australia if he was in pain.
He said he was also suffering from mental pain yet he provided no evidence of visiting anybody for the affliction. He said he went to [a] Police Station after he thought about jumping in the river. Asked if he had a copy of the police report he said that he didn’t – an ambulance was rung and he went to the hospital and saw a psychologist. Asked where the police report and discharge report from the hospital was, and he said that he didn’t have either. It was put to him that if he had gone to the police station there would be a police report and there would be a discharge report from the hospital. He had years to get these and he had not so the Tribunal would not be able to lend his claims much weight.
He had a lawyer and asked if he had requested his lawyer to obtain these reports and he failed to answer the question, instead saying that the police told him they would do the report the next day. When he was in hospital he asked for the report and they said not to worry about it. It was put to him that if he had reported to the police there would be a report. He would be given seven days to provide this. There would also be a discharged report given to him and/or his GP. He had seven days to provide this report.
He was asked why he would still be of interest to these people in 2023, and he said they always followed instructions. In Pakistan there was no rule of law and 42 people had been killed in a bomb blast recently. He would be killed if he returned. It was put to him that there were 230 million people in Pakistan and he was free to move around according to country information. He said there was nowhere in Pakistan that was safe in Pakistan.
The police were corrupted as well and they didn’t follow up cases. He said there was no rule of law so he could not be protected. Asked how they could find him elsewhere if they couldn’t find him in the five months he claimed he moved around Abbottabad, and how he could stay for Abbottabad for five months with his leg wound, pass his IELTS, change houses and travel to the airport and leave without problem if the TTP were everywhere. He said the family helped but they couldn’t do this forever.
It was put to him that the amount of interest shown in a [age] year-old seemed strange. The TTP approach to him seemed strange as well – getting close to him, being rebuffed initially but rather than backing off and trying again later (or ignoring him) they physically assaulted him. This seemed to be a strange way of trying to recruit a recruiter. He was of no great import and yet they appeared to spend a lot of time targeting him. He said that they looked at young people to change the way people thought. He didn’t know how they did these things to other people. They were trying to control him and became angry when they couldn’t.

He was told about s 424AA and it was put to him that he was asked about the circumstances after his shooting and he didn’t know how he got there. Yet at the DIBP interview he said a friend of his brother’s took him there. This was inconsistent. He said he didn’t know at the time who took him.
It was also put to him that at the interview he was given the number of a psych support group to call and was asked if he called it. He said that he didn’t. This gave rise to concerns in the Tribunal’s mind that his claim to suffer from trauma was not true. He said that he was a victim who had suffered. He said again that he was in shock and couldn’t help himself.
He was advised that the Tribunal accepted the medical report that he had received a gunshot wound at some stage but his account did not appear plausible so the Tribunal was concerned that he may have been shot accidentally or at some other point under some other circumstances.
Asked what he did in Australia from 2014 until he applied for protection, he said that he finished his ELICOS to get his English better and then attempted a [course] but the pain and trauma was too much and he couldn’t complete it. Asked if he ever approached the education provider about his medical issues, he said that he didn’t. He was asked how he could complete his English course if his pain and trauma was so bad, he said that he was able to take work at home. He also worked [to] make money – it was put to him that it was strange that he could not complete his course because of the pain in his leg and his trauma and yet he was able to [do heavy labour] despite the pain in his leg. He said that he often cried from the pain and wished he had been smart enough to know to go to the doctor.
He was asked when his student visa finished (when he failed to complete his [course]), he said he thought it was 2015 and he didn’t do anything. He remained on a student visa but didn’t study. He believed that his student visa was valid when he applied for protection. Asked why he decided to apply when he did, he said that he wasn’t aware of protection visas before he applied.
The applicant said he had two daughters and a wife on a protection visa (this was clarified as applying for protection and was on a bridging visa). Asked what citizenship the children had, he said they had not taken out citizenship but could approach the respective embassies and register their birth.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa on [date] March 2014 and applied for protection on 20 October 2017. I have sighted a copy of his passport and accept that Pakistan is the applicant’s country of nationality.
The applicant is a [age] year-old male who has married since he has been in Australia. He claimed that if he returned to Pakistan he could be killed by the TTP because he had refused to recruit people to fight for them or to undergo weapons training himself.
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 required to accept uncritically any and all claims made by an applicant.
For a range of reasons 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 a reliable, credible or truthful witness, and that he fabricated many of his claims in order to be granted a protection visa.
Mental Health Claims and Gunshot Wound Claim
The applicant claimed that he had been shot by the TTP and that the wound had caused him chronic, severe pain that impacted his ability to study and that the TTP attack had left him traumatised. He also claimed that he had had suicidal ideation and was referred to hospital after reporting this to the police.
The Tribunal accepts that at some point in his life he suffered a gunshot would to his lower leg as evidenced by the medical report provided by his GP. I do not accept that it occurred at the time or in the manner described by the applicant – this will be explained later. I also do not accept that the wound has caused him so much pain for so long that it caused him to fail his studies in Australia. Despite claiming he suffered from pain so severe that he was unable to study (although it did not appear to preclude him from earning a wage [doing specified job]), he offered no medical evidence to support the claim and had never seen a doctor for it. Nor had he ever spoken to his education provider regarding the extreme pain he claimed to be suffering that he claimed precluded him from studying.
I do not accept that he was too immature or traumatised to do so. To begin with he was an adult at the time he arrived in Australia, had medical insurance and spoke workable English. He was able to attend any medical clinic if he so chose – a high level of maturity is not required to understand that one should see a doctor in the event of chronic, severe pain. I also note that he provided a medical certificate from a [medical] clinic citing headache and fever as reasons for not being able to attend a DIBP interview in February 2019 which would indicate that he was mature enough to present to a doctor if he considered it necessary.
The same issues arise regarding his claim of gunshot-induced trauma. He has not provided any medical evidence that would support this claim. Again I do not accept that this was because he was too immature or that he found it difficult to ‘open up’ about the nature of the traumatic events. This relies entirely on his oral testimony, which I have found lacks credibility. During his DIBP interview he had also been given the number to call for trauma counselling yet never did so. He also claimed that his despair was such that he had suicidal ideation, went to the police who ordered him an ambulance and he was treated then released from [a] Hospital in Melbourne.
He provided no police report or discharge summary in support of this claim. His claim that the police said they would write the report the next day and then not to worry about any report lacks credibility. The applicant had engaged a lawyer for this protection visa application and he was given a week to provide evidence from the police and hospital but no such evidence was forthcoming. I am satisfied that this is because the evidence either did not exist or did not support his claim.
Targeting by the TTP
I do not accept that the TTP attempted to recruit the applicant as a recruiter for them, that they wanted him to undertake weapons training or that when he refused they followed him, physically assaulted him and then later shot him. He provided no country information in support of such a tactic being employed by the TTP and his account of being forcibly recruited into the TTP is inconsistent with available country information. The Afghan Taliban for example, which maintains close links with the TTP[1], only resort to forced recruitment in exceptional circumstances.[2] Other country information indicates that TTP gain recruits based on successful operations and the integration of smaller factions and makes no mention of having to forcibly recruit foot soldiers.[3] The applicant was a [age] year-old male of no great importance so their focus on him seems completely out of proportion to his value to the TTP.
[1] Is Pakistan Poised to Take on the TTP? | United States Institute of Peace (usip.org), accessed 23 August 2023.
[2] 2.4. Persons fearing forced recruitment by armed groups | European Union Agency for Asylum (europa.eu), accessed 16 August 2023.
[3] The Revival of the Pakistani Taliban – Combating Terrorism Center at West Point, accessed 23 August 2023.
His account of the alleged shooting incident also lacks credibility. He claimed that he was followed by two TTP members who were only a few metres behind him and that he feared kidnapping and so ran before he was shot in the lower leg and blacked out. If the TTP’s aim was to kill or capture him then the fact they did nothing after he was shot strikes the Tribunal as implausible. If the intent was to kill him after they had allegedly already assaulted him, then it could have been done in a few seconds with a bullet to his head. If the intent was to capture him then they had immobilised their target and could easily have put him in whatever means of transport they had brought with them. Yet they did nothing and he was able to be taken to hospital and operated on.
I also do not accept that he was of any interest to the TTP given his ability to remain in Abbottabad unhindered. Despite claiming the TTP had been following him continuously around Abbottabad, following the surgery he was able to remain in Abbottabad and pass an IELTS test, then travel to the airport and leave the country to come to Australia without problems from the TTP. I don’t believe that he was able to do so because he regularly moved houses. He had never previously mentioned this and he has not indicated any other residential addresses in his student or protection visa applications. I do not accept that his failure to do so was because he still considered his family’s home as his residential address, given the protection visa application specifically asks for temporary residence addresses over the past 20 years.
I note that the applicant still has a brother and his mother living in Pakistan. I do not accept that his brother had no problems with the TTP but that his mother was being harassed to the extent that they had to sell the family house and move. He had never previously mentioned that the house had been sold because of his mother being harassed by the TTP and it also lacks credibility that a group intent on recruiting male fighters would harass the mother but leave the son alone.
I also do not accept that one of the applicant’s brothers went to [Country 1] in 2014 because he was being asked about the applicant’s whereabouts. This is inconsistent with his claim in protection visa application statement made in 2017 that his brother was living with his family in Abbottabad. I accept that the applicant’s other brother was only [age] years old when the applicant left Pakistan however he is now [age] and remains untouched by the TTP.
Other Issues
The applicant’s delay in applying for protection is also inconsistent with the alleged surveillance and assaults carried out by the TTP against the applicant prior to leaving. Despite claiming that he had to hide before he left Pakistan and that he came to Australia because it was safe, he did not apply for protection until three and a half years after arriving in Australia. I do not accept that he was unaware that Australia granted protection visas or that he was in pain and suffering from shock and trauma.
I have already addressed the applicant’s claim to be suffering from pain and trauma, and I do not accept that the applicant would be unaware that Australia offered protection given the profile of the asylum system within Australian media reporting. The applicant could also have approached a migration agent or lawyer at any stage to outline his problems and ask for advice on his options. I am satisfied that his failure to do so was because he faced no threat of serious harm in Pakistan.
I also do not accept that there is no rule of law in Pakistan and that a recent bomb blast there indicates that there is a real chance that the applicant will face serious harm due a lack of security. To begin with, I note that the applicant’s mother and at least one sibling remain in Pakistan which would indicate that they feel sufficiently safe in that environment. I have taken into account the applicant’s reference to a bomb blast that killed 42 people, however note that it was at a political rally in Khyber-Pakhtunwala province.[4]
[4] Suicide bomb at political rally in Pakistan kills more than 40 | Reuters, accessed 17 August 2023
More generally the Tribunal has taken into account the general security situation in Pakistan. The Tribunal accepts that there are attacks in Pakistan and that the security situation has deteriorated since mid-2021 as per the DFAT report.[5] 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.
[5] DFAT Country Information report – Pakistan, 25 January 2022, p 24.
While the 419 deaths are tragic, they occurred within a population of 230 million. In addition, of the 262 attacks in 2022, the majority (180) were against security forces and only 13 were against civilians, resulting in 14 deaths.[6] 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.
[6] SecReport_2022.pdf (pakpips.com), accessed 24 May 2023.
The applicant’s adviser also noted in a pre-hearing letter that the applicant has married a [Country 2] national since he has been in Australia with whom he has had two children. The adviser claimed that potentially the applicant would be unable to take his family back to Pakistan due to the issues raised and neither could his wife go to [Country 2].
I have already found the applicant’s claims to fear serious harm to have been fabricated and there is not a real chance he would face serious harm on return to Pakistan. I also note the children have no nationality currently but they are automatically eligible for Pakistani citizenship and can obtain [Country 2] citizenship with the written agreement of both parents. The parents simply need to exercise the rights the children have to citizenship.
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 there is not a real chance that the applicant will suffer serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is or ever was of interest to the TTP, they sought to recruit him, he was assaulted or shot by the TTP, that he would not be effectively protected by the state, or that he was or is wanted by the TTP in Pakistan and would be killed on return, 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 Pakistan, 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).
Given the applicant’s wife’s separate protection visa application I have checked and am satisfied that the applicant does not satisfy 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 4022

23 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction