1919614 (Refugee)

1919614 (Refugee) [2024] AATA 4412 (20 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Christopher Hugh Levingston
CASE NUMBER:  1919614
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Damien Power
DATE:20 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2024 at 5:09pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shi’a – avoiding recruitment for Inter-Services Intelligence Agency – fear of killing – bombing death of the applicant’s brother – detention – physical assault – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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 18 July 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 11 October 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 4 September 2024 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.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [age] years of age from Karachi, in Sindh province. His family still resides in Karachi.
The applicant speaks, reads and writes Urdu.
Evidence before the Department
Migration History
The applicant first arrived in Australia on a student visa [in] August 2012.
He departed Australia [in] November 2014 and returned to Pakistan. He re-entered Australia [in] December 2014.
On 11 October 2017, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 18 July 2019, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The claims contained in the applicant’s protection visa application are set out below.
The applicant’s brother was involved with a madrassa (Islamic school). The applicant’s father expected him to join his brother at the madrassa. When the applicant joined the madrassa, after completing his [Qualification 1], his brother was already residing at the madrassa’s hostel.
The mullah encouraged the applicant’s brother to train other youths. The applicant’s brother had learned the Islamic scripture thoroughly. The applicant was more interested in pursuing a career than becoming a scholar in Islamic scripture. However, during the period 2010 – 2012, he was unable to find a job and ended up spending his time at the madrassa. The applicant travelled between home and the madrassa as he did not like staying in the madrassa’s hostel, as his brother did.
While at the madrassa, the applicant became agitated about the Mullah’s control over the students and his insistence that the applicant participate in physical training. The applicant did not want to undertake this training as it was military style training involving activities such as crawling under barbed fences and hard, strenuous exercise.
When the applicant refused to do arms training, he was beaten by senior students in the madrassa. The applicant was locked in a room for a day without food in the hope that he would agree to undertake the training. When the mullah contacted the applicant’s father, his father ordered him to be sent back home immediately. However, his father refused to believe the applicant when he told him about the military style training, stating the applicant’s older brother had never received such training. The applicant was suspicious because he had seen his older brother spending time with senior students who behaved like militants. When the applicant questioned his older brother about these men, the applicant told him to stay away from them and not to ask him questions.
The applicant’s father and brother spoke, and it was agreed the applicant should stop attending the madrassa because he was uninterested in Islamic scripture. After the applicant stopped attending the madrassa, the applicant learned from friends and classmates that his brother had military capabilities and was providing military training to other students.
When the applicant mentioned this to his father, his father went and spoke to the mullah. The mullah told his father that it would be too late to take the applicant’s brother out of the madrassa as he was controlled by the Central Intelligence Agency (CIA), which funded Pakistan’s Inter-Services Intelligence Agency (ISI). The mullah also told the applicant’s father that the ISI wanted the applicant to serve in the militant groups like his brother. The mullah said that if the applicant joined ISI, he could earn good money and control Karachi like his brother. The mullah said ISI officers would take the applicant to Hyderabad. The father was shocked and discussed this with the applicant’s brother. The applicant’s brother said that if the applicant did not want to participate, he should leave the country. The father immediately contacted an agent who arranged for the applicant to come to Australia. The father was subsequently warned by ISI officers that the applicant should keep quiet about what he knows.
In 2014, the applicant’s father told him that his brother died from a bomb blast at the Wagah border. His father told him that his brother was killed along with other militants serving the ISI. His father said that the Indian Research and Analysis Wing (RAW), India’s intelligence agency, could be the people responsible for his brother’s death. The applicant immediately travelled back to Pakistan for his brother’s funeral.
At the funeral, the applicant was shocked to see members of militant groups, madrassa students and the mullah. The mullah took the applicant aside and told him that he should be the next to serve his country. The mullah said ISI had ordered him to bring the applicant back to the madrassa. He said that it would be dangerous for the applicant to live in Pakistan unless he joined them, and that RAW would not hesitate to kill him.
The applicant told the mullah he would think about joining them but needed time to deal with his brother’s death. The applicant eventually left home and travelled to Karachi airport to fly back to Australia. However, he was abducted by police officers and a militant and taken to the police station. He was beaten for trying to leave the country.
Eventually, after much discussion, the applicant’s father bribed the mullah to obtain his release and bribed two police officers to take him to his flight.
Back in Australia, the applicant’s father told the applicant to study and try to obtain permanent residency. However, when the applicant’s student visa application refusal was affirmed by the AAT, the applicant’s father told him to apply for protection.
His father told him that the rangers are searching for Tehreek-e-Taliban (TTP) and mujahideen militants throughout Pakistan. His father also said that the locals and students already considered the applicant to be a member of the mujahideen militant groups after his brother’s death at the Wagah border.
The applicant was lucky to have escaped Pakistan. He applied for protection so he could live safely away from Pakistan, where the militants and police groups all work hand in hand for the ISI. He fears returning to Pakistan, where he could be abducted by militants or police officers and recruited by ISI.
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.
The applicant provided a copy of the bio-data pages of his Pakistan passport. The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that their receiving country for the purposes of assessing their claims for protection is Pakistan. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than Pakistan.
Interview with the delegate
The applicant attended an interview with the Department on 15 May 2019.
Delegate’s decision
The delegate did not accept the applicant’s claims, citing a lack of detail in the applicant’s account at interview, the vagueness of some portions of his evidence, and his delay in applying for protection.
Evidence before the Tribunal
Application for review
On 19 July 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
Additional submissions or evidence
The applicant did not make any additional submissions to the Tribunal prior to the hearing. The applicant had previously supplied to the Department a significant volume of country information and a number of supporting documents, particularly a ‘coroner’s report’ and a death certificate relating to his brother. This material has been considered in the review.
The hearing
The applicant attended a hearing on 4 September 2024. The applicant provided further detail about their experiences in Pakistan and their claims for protection at the hearing.
The applicant also gave evidence about his background, work history and other matters.
The applicant’s evidence at hearing, where relevant to the consideration of his claims, is discussed in detail under Consideration of Claims and Evidence.
On 11 September 2024, the applicant’s agent submitted a written response to the Tribunal addressing some of the concerns raised with the applicant’s evidence at hearing. This has also been considered in the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was asked about his work history in Australia. He said that for the past four or five years, he had worked as [an occupation 1]. Prior to that, he had worked part-time in [a] company. He had also [worked another job] for three or four years, and briefly worked [in another business].
The applicant came on a student visa, initially to study a bachelors level [degree]. However, he then switched to a diploma level [course]. The applicant was refused a further student visa in 2015. I asked the applicant why he had been refused and he said that they found he was not a genuine student. That student visa refusal decision was affirmed at the AAT in September 2017.
In Pakistan, the applicant had worked as [an occupation 2] for [Employer 1]. However, he said he had not done that job for any more than a year before joining the madrassa. The applicant’s father was retired but had previously worked for a [business] in Pakistan for many years. The applicant’s mother was a homemaker. Both his parents reside in Karachi. His [sibling] is married and resides elsewhere in [Karachi].
The applicant was asked why he feared returning to Pakistan. The applicant said that he had been asked to do military training by the mullah but neither he nor his father wanted this.
I asked the applicant for the mullah’s name, but he said he could not remember. The applicant said the madrassa was called [name] and was located in [a location in] in Karachi. He started attending the madrassa when he finished working for [Employer 1] that employed him because his father had asked him to start studying there. I asked the applicant why his father had wanted him to go to the madrassa, and he said it was because his brother was there and because his father was of an Islamic background. He said that he thought his brother had started attending sometime in 2010 and he had started attending sometime after 2010.
He said that the madrassa had started training him and attempting change his mind. He said that he had studied the Koran for the first few months there. After that, he began being pressured to undertake military style training. I asked the applicant what he had said in response. He said that he had not responded either way, but eventually left the madrassa in secret and went back to his parent’s house.
I asked the applicant if he had spoken to his brother about what was happening, and the applicant said he had not. However, he had spoken to his father and told him that he was being forced to take military training at the madrassa. I asked the applicant what meant when he said ‘forced’, and the applicant replied that he had been forced verbally. I asked him what sort of things they had said to him, but the applicant said he could not remember.
I asked the applicant what his father had said when he told him of his experiences at the madrassa. The applicant said that his father did not say anything in particular, but he hired an agent to bring him to Australia. I asked the applicant when they had approached the agent and he said it was early in 2012. I asked the applicant if he had faced any issue departing Pakistan the first time, in August 2012, and said he did not face any issues. I asked the applicant why his father had sent him to Australia, and he said it was because he had not wanted to do the training. The applicant said that he had come to Australia to study. He said his father had asked him to complete his studies and try to gain permanent residency.
I said to the applicant that it was not entirely evident on the information he had provided so far why he feared returning to Pakistan. The applicant said that if he returned to Pakistan, the mullah would ask him to do the training and then agencies like the Inter-Services Intelligence (ISI) and the Central Intelligence Agency (CIA) would catch him. I asked him why he thought that, and he said it was because his brother was killed in the Wagah border blast. I asked what he meant when he said his brother was killed in the blast, and the applicant said it was because his brother was receiving military training. I asked the applicant if his brother had been a victim of the border blast or whether he was saying his brother had participated in the attack. The applicant responded that he was not there, so he had no idea.
I asked the applicant how he had found out about his brother’s death. He said that his father had called him and told him that his brother was killed in a bomb blast. I asked the applicant if his father had told him anything else about his brother’s death. The applicant replied that his father had not told him anything else when he arrived in Pakistan because his father was in shock. I asked the applicant if his father had told him anything else about his brother’s death in the month or so the applicant was in Pakistan. The applicant said that his father told him his brother had been taking military training from the mullahs.
The applicant was asked some more questions about his return to Pakistan in 2014. The applicant said that the flight duration was about 14 hours and that he landed in Pakistan the day after he left Australia. The delegate’s decision shows that the applicant departed Australia on [a day in] November 2014, so this would mean he landed in Pakistan sometime late on [that day] at the earliest. The applicant said that he attended a funeral for his brother after arriving in Karachi. The applicant was asked whether his brother’s body was present at the funeral ceremony and the applicant said it was. He said the Islamic ritual of janaza was performed on his brother’s body, and that it was later taken to the mosque.
The applicant said that when he attended the funeral, mullahs were looking at him and noting his return to Pakistan. The applicant was asked whether the mullah who had tried to force him to do the military training was also there, but the applicant said only that there were mullahs there. He said that these mullahs approached his father and asked that the applicant undergo the same training as his brother. He said that the mullahs wanted him to do the training because his brother had done it and the applicant was part of the same family, and also because the applicant had undertaken a small part of the initial training.
The applicant was reminded that he had previously said that he had left the madrassa before he had done any of the training. The applicant said that he done training in some tunnels. They had crawled through the tunnels and been taught survival techniques. I asked if the people training him had told him why he was doing the training, and the applicant said that he had asked but they had not told him. The applicant was asked why he had not mentioned this when he was first asked what had happened at the madrassa. The applicant did not directly address the question but simply said it was military training and that this was how it was done. The applicant was asked again why he had not previously mentioned this training and he replied that it was military training and that is why he had told me about it.

I asked the applicant what his father had said in response to the mullah’s request that the applicant undertake military training. The applicant said that his father had refused. He said that the mullahs had argued with his father and threatened to take the applicant by force. He said that his father had eventually paid a bribe to the mullahs so that the applicant would be allowed to return to Australia. The applicant said that his father had then hired two police officers and the third person in civilian dress to take him to the airport. He said his father had done this because he did not entirely trust the mullahs to keep their word.
The applicant was unable to say who the person in civilian dress was and said he had not asked him. The applicant said he did not have any issues at the airport. The three men had taken the applicant from his home to the airport and had seen him safely on the plane. The applicant was asked if that was the only occasion on which he had gone to the airport in Karachi on that visit and he said that it was.
The applicant was asked if anything else had happened between the time his father had bribed the mullahs and the three men had taken him to the airport. The applicant said that he could not remember. The applicant was asked if anybody had contacted him since he had returned to Australia in 2014. The applicant said that nobody had contacted him because they did not have his number. The applicant was asked if anyone had approached his father and the applicant said that they may have but he not been told about any approaches. I asked if the applicant’s father had since told the applicant anything more about how his brother had died and the applicant said they had not discussed it afterwards.
The applicant was asked what he thought would happen if he returned to Pakistan. He said that the mullahs would ask him to start the training. He said there were organisations like the CIA that would try to catch him. The applicant said they might suspect he was involved because his brother had been involved. The applicant was asked to specify what his brother was involved in, and the applicant said he had been taking training from mullahs. The applicant was asked why the mullahs would want him to do the training. The applicant said again that it was because his brother had done the training and said that they wanted him to get involved with things like killing.
The applicant had given a series of short non-specific replies and was asked to be specify what he was referring to when he said “killing”. The applicant said that they trained people in the madrassa to prepare bombs. The applicant was asked whether he suspected his brother was involved in the incident at the Wagah border in 2014. The applicant said again that he was not there, so he did not know, but he said he guessed his brother was involved and that this was why the incident had happened. The applicant was asked whether anyone had told him his brother was involved, and he said that his father told him that his brother was taking military training. The applicant was asked if his father had told him anything else, and the applicant said he had not.
The applicant was asked if the mullahs were linked to any particular group, and he said that he did not know anything about that. The applicant was asked about his earlier reference to the CIA. The applicant said that the CIA was one of the agencies that were working to catch people like that, by which I took him to mean extremist groups or people who carried out terrorist attacks. I asked him if he had mentioned the CIA because they were generally involved in the war against terror and the applicant said that they are working to catch people like that.
The applicant was asked a number of times and in a number of different ways about the border attack at Wagah in 2014 but did not claim that he had any direct knowledge (or been directly informed) about his brother’s involvement in that incident. He did not state that he had been told anything specific about his brother’s involvement in the Wagah attack by his father, except for his father noting that his brother had received military training from the mullahs. The applicant was also unable to state whether the mullahs were affiliated with any other group.
I have considered the applicant’s evidence at hearing. However, for the reasons set out below, I do not accept the applicant’s account as credible.
Despite repeated prompting, the applicant failed to provide at hearing even the level of background and detail in his written claims. Although the applicant stated that it was a long time ago and he had difficulty remembering, his lack of recall did not extend simply to dates and names, but to key aspects of what he claimed had happened in Pakistan.
The applicant also had an extensive interview with the delegate in 2019, five years ago, when the events he claims occurred in Pakistan should have been much clearer in his memory. I have listened to the interview with the delegate in its entirety. It is notable that the applicant arguably recalled even less detail about claimed events surrounding his attendance at the madrassa, discussions with his father or brother, or his knowledge of the groups with whom the mullah(s) and his brother were allegedly involved.
The applicant was taken through the differences between his statement and his evidence at hearing. Some of the differences put to the applicant are set out in the paragraphs that follow.
At hearing, applicant had said that his father had not told him anything about the incident at the Wagah border and that he only suspected his brother was involved in that attack based on the madrassa training he had been given. However, in his written statement said his father had told him that his brother was with other militant groups serving the ISI and was “planning to enter India when he was killed along with the other militants”.
When he had been asked about CIA, the applicant had only talked about that organisation in very general terms as opposing terrorist activity. However, in his written statement, he had talked about the CIA sponsoring the madrassa where his brother had trained.
The applicant had said at hearing that he had refused to do any training and left the madrassa soon afterwards. However, in his written statement, he wrote that after he refused to do arms training, he was beaten by senior madrassa students and even locked in a room for a whole day without food to force him to comply.
The madrassa was also raised with the applicant later in the interview, and he gave yet another version of events. He said that he was taken down into tunnels for training and that he had also been given survival training. When asked why he had not raised this when we spoke about his time at the madrassa earlier, the applicant did not directly address the question but said instead that it was military training, and this was why he was telling me about it.
It was put to the applicant that he had been prompted a number of times to talk to me about what had happened in the madrassa, and he had not supplied any of the detail set out in his written statement. The applicant replied that his statement had been written a long time ago, so he had forgotten it. He said there were many things he did not remember now.
The applicant was asked at hearing about departing Pakistan in 2014 after his brother’s funeral. He consistently said that he was accompanied to the airport by three people, two uniformed police officers and one person in civilian clothing. He also consistently stated that he only made one journey to the airport in Karachi and successfully boarded the plane with the assistance of the three men who accompanied him. He did not report any issues at the airport.
However, he previously claimed in his written statement that he attempted to go to the airport in Karachi in 2014 but was prevented from leaving. He was ‘abducted’ at the airport by police officers and a militant who took him to a police station. He said he was beaten at the station by the police who accused him of attempting to evade the mullah. He said that the mullah had appeared at the station and had a long discussion with him. His father then arrived and, after much discussion, offered the mullah a bribe to facilitate his son’s release. When this was put to the applicant, he again said that there were many things he had forgotten. He said that he remembered a few things but had also forgotten some things.
I said that I understood what he was saying about the passage of time. However, I put to the applicant that he had attended an interview with the departmental delegate in 2019 to discuss his claims. I said that he had arguably supplied even less detail at that interview than he had at the hearing today. I said that the applicant had not mentioned at his departmental interview the military training, expressing concerns to his father about the madrassa and the training there, or being starved in an effort to force him to undertake the military training. I noted to the applicant that the delegate had prompted him about the specific claim regarding having been starved. I said that he had replied that he left the madrassa because they were keeping him hungry but failed to provide any further explanation or context at that time. The applicant replied that he had raised those things he could remember at the time.
The applicant had previously provided to the Department a death certificate and a document from the [named forensics agency] in Lahore. The document purporting to be from a forensics [agency] has a standard pre-printed titling “To Whome it May Concern” that misspells the word “Whom”. The death certificate for his brother states that his brother’s body was buried on 3 November, just a day after the terrorist attack at the Wagah border in which 60 people were killed. However, the applicant claimed at hearing that he arrived in Pakistan on or after 7 November and went to his parent’s house, where his brother’s body was present. He said Islamic funeral rituals, including the janaza, were carried out at the family home with his brother’s body present. The applicant said that after this, his brother’s body was then taken to the mosque for more rituals.
The applicant’s agent has contended that the applicant was only referring to a ‘grieving ceremony’ at the family home. He said that the applicant’s family were accepting condolences after the brother’s body had already been buried. However, the applicant referred a number of times to his brother’s body being present at the family home when he arrived in Pakistan, and this was confirmed with him on more than one occasion during the hearing. The applicant also referred to the janaza ritual being carried out on his brother’s body. The janaza[1] ritual in Islamic tradition involves washing and preparing the body of the deceased, which further underscores the applicant’s clear contention that his brother’s body was physically present at the family home at least four days after the date that the death certificate states his brother’s body was interred. When this discrepancy was put to the applicant, the applicant said that his brother’s body was in cold storage and was released for the funeral. I said I understood about cold storage, but the death certificate said that his brother was buried on 3 November. The applicant then said that the border incident at Wagah was in Lahore, but the body was buried in Karachi. The applicant did not end up providing a clear explanation for this discrepancy at hearing.
[1] accessed on 4 September 2024
Given some issues with the presentation of the forensics [document], and the lack of security features on the documents, I have some concerns about the credibility of death certificate and the forensics report. However, the applicant’s agent has submitted that a single typographical error does not necessarily mean that the forensics [agency] document is bogus. There is also nothing on the face of it to suggest that the death certificate is fraudulent. Both documents were submitted with his original application. Therefore, I will give the applicant the benefit of the doubt and accept these documents as genuine. However, even on their face, all these two documents demonstrate is that the applicant’s brother is deceased. Further, as described above, the death certificate contradicts the applicant’s account in a significant respect – i.e., showing his body as having been interred almost a week before the applicant claimed to have seen it at the family home. This contradiction cannot be explained by any potential lapse in the applicant’s memory, as the date on the death certificate ([earlier in] November 2014) and the date of the applicant’s departure from Australia ([later in] November 2014) are drawn from official records rather than being reliant on the applicant’s recall. The applicant did not dispute either of these dates.
The applicant’s agent has contended that the discrepancy is not a relevant material fact and should not add to some of the other concerns regarding the applicant’s credibility. I do not accept this is the case. While far from the only issue with the applicant’s evidence, it is a significant discrepancy. While not dispositive in itself, it adds to my overall concerns about the applicant’s credibility.
The applicant provided a significant amount of country information with his initial application. However, although I accept that there is a long history of terrorist activity in Pakistan and that situation has been a complex and evolving one, this country information has limited relevance. Firstly, it is not at issue that terrorist groups are active within Pakistan, or that madrassas have been involved with radicalisation, including in Karachi. The issue is that the applicant’s account is not credible on its own account for the reasons set above. Secondly, the country information provided by the applicant dates back to 2017 and is now around seven years old. The applicant has not sought to put forward more recent country information of relevance to his claims, or to provide any further written elaboration of his protection claims.
The applicant was asked a number of times at hearing to articulate what he knew of his brother’s activities and his involvement with the Wagah border bombing. The applicant’s responses in this regard sometimes bordered on the obtuse. The applicant stated at hearing that his brother was killed in the Wagah border attack in 2014, a major terrorist attack in which more than fifty people were killed[2]. When asked whether his brother was a victim of the attack or an active participant, the applicant stated that he did not know because he was not there. This was a somewhat puzzling response, given that the applicant had stated in his written claims that his brother had been radicalised, had participated in the attack and been killed along with other militants, and that his father told him there was a suspicion that the Indian Research and Analysis Wing (RAW) may have been responsible for his brother’s death. The applicant had also stated to the departmental delegate at interview that his brother had gone to Wagah to kill Indian officers.
[2] “Pakistan bombing: Wagah suicide attack near India border”, BBC, 3 November 2014
The applicant was asked to describe how ISI was involved in the matters he had described. The applicant said he did not remember. It was put to the applicant that it did not seem credible that militant outfits, the ISI, or anyone else would be so determined to force the participation of someone who clearly signalled that they had no interest in participating. The applicant replied that since his brother was involved, it was expected that he would also be involved and that he would later take his brother’s place when he died. When it was put to the applicant that his father had signalled quite clearly that he did not want the applicant to become involved with their schemes, the applicant repeated that they were forcing him.
Country information was put to the applicant that terrorist groups would sometimes target impressionable youth, most often those who were economically marginalised[3]. Extremists would employ a range of strategies that included drugs, financial incentives, indoctrination, and even sexual abuse[4]. However, I noted that I had been unable to locate any country information to support the idea that adult men of the applicant’s background would be forcibly recruited. Information was also put to the applicant about the Taliban in Afghanistan, noting that although it was not Pakistan, the principles were generally applicable – to whit, that sources had told the European Asylum Support Office that forced recruitment was rare, with some sources saying it did not happen[5]. Sources had said that the Taliban (in Afghanistan) had no need to recruit fighters by force because they had sufficient volunteers and because they consider that forced recruitment would alienate local communities.
[3] 'Recruitment of youths by militants continuing in Swat', Dawn News Group - Pakistan, 17 July 2008, CX205673
[4] 'COI Compilation: Pakistan', Austrian Centre for Country of Origin & Asylum Research and Documentation (ACCORD), Austrian Centre for Country of Origin & Asylum Research and Documentation (ACCORD), 01 June 2013, CIS26080
[5] 'EASO Country of Origin Information Report, Afghanistan, Taliban Strategies - Recruitment', European Asylum Support Office, European Asylum Support Office, 01 July 2012, CIS23515
The applicant was asked to address those two points – that there was not information to support the idea that adults of his background were forced into assisting extremist groups in Pakistan, and that it would be counter-productive to force him to participate when his father already supported them, especially in circumstances where his father had already lost one son. The applicant said that it was because of these relationships that people were recruited.
I said that there have been allegations that Pakistan has sponsored terrorism against other countries including India[6], but Pakistan security forces had also waged a long and bitter war against extremists including the Tehreek‑e‑Taliban (TTP)[7]. Pakistan security and police forces lost significant numbers of personnel in those operations (including around the time of the applicant’s return to India)[8]. The Pakistan anti-terrorism court convicted those accused of the Wagah bombings, and the Wagah attack occurred on the Pakistan side of the border[9]. A prominent Pakistan defence analyst said that “had such an incident taken place on the other side of the border, it would have created a major crisis in India-Pakistan relations.”[10] I put it to the applicant that I may find it implausible that an ISI‑sponsored group would attack its own side of the border and target its own security forces. The applicant responded that such things were common in Pakistan and that they happened there.
[6] “Unraveling Deception: Pakistan's Dilemma After Decades of Promoting Militancy in Afghanistan and Beyond”, Nader Nadery, Wilson Center, 26 September 2023
[7] 'COI Focus - Pakistan: Security situation', Office of the Commission General for Refugees and Stateless Persons (Belgium), 28 February 2023, 20230628143902
[8] 'Violence took an upward curve during 2013 says Pakistan Security Report 2013', Pakistan Institute for Peace Studies (PIPS), 05 January 2014, CX317327; 'Militant attacks surge in Pakistan, highest in any month since 2014', Pakistan Institute for Conflict and Security Studies, 1 September 2023, 20230927132332
[9] “Pakistan court sentences three terrorists to death for involvement in 2014 Wagah border bombing”, The Hindu Times, 19 February 2024; “Pakistan bombing: Wagah suicide attack near India border”, BBC, 3 November 2014
[10] “India Cannot Ignore the Ramifications of the Suicide Bombing at Wagah”, Rishi Iyengar, Time Magazine, 4 November 2014

The applicant’s agent has suggested that the fact that the applicant might be mistaken about the CIA or the ISI’s involvement with the madrassa training or the Wagah border attack does not necessarily undermine the applicant’s credibility, as the information regarding the ISI involvement was conveyed to him by others. I do not accept this argument. The issue is not whether the applicant was mistaken about CIA or the ISI involvement. The issue is that the applicant claimed he and his father were informed that ISI and the CIA were involved, and that he failed to make the same claim at hearing. He makes a number of observations in his written statement of claims that indicate ISI was closely involved in operations at the madrassa, and even indicates at one point that he was told by the mullah that he would earn good money and that he would be able to “control Karachi in the future” if he joined the security services. He did not repeat this claim at hearing.
Further, some of the applicant’s original claims rested on the fact that he was (and potentially will be) targeted by the ISI and other security personnel if he returns to Pakistan. If the ISI (or the CIA) had no involvement with the madrassa, then this raises a further discrepancy between the applicant’s written claims and the issues raised in his evidence before the Tribunal.
In a broader sense, the applicant’s often cursory testimony at the hearing was also out of step with the general tone of the narrative in his written statement. The written statement gives a strong impression of a brother increasingly concerned at the influence of the mullah on his brother, the pressure he was himself coming under to undertake military training, and his alarm at finding out that the madrassa and the mullah(s) were allied with ISI and militant groups. This was generally absent from his evidence at hearing, where he did not specify any particular groups that were allied with the mullahs, did not mention the ISI on his own account, and claimed that his father had said “nothing in particular” when the applicant had told him in 2012 about the military training allegedly taking place at the madrassa.
It was also put to the applicant that his considerable delay in seeking protection might also cause me to doubt the genuineness of his claim to fear harm on return to Pakistan. This was put to the applicant who said that his father wanted him to study and gain permanent residency so that he could travel in case of emergency, by which I took him to mean travel back to Pakistan if necessary. The applicant said that after the rejection of his student visa, he had no other option but to apply for protection. I said that I understood that. However, I also said that when he arrived back in Australia the second time in 2014, I might have expected that he would apply for protection soon afterwards given his experiences in Pakistan. The applicant repeated that his father wanted him to continue his studies.
The applicant’s agent has contended that the ‘articulation of claims of protection’ would have inevitably undermined the AAT review of his student visa refusal by reason of a protection claim signalling his intention to remain permanently in Australia, in contravention of the visa requirements. I cannot discount that this was the applicant’s understanding at the time. Therefore, I have considered this information carefully and do not draw an adverse inference from the applicant’s delay in applying for protection.
I accept that the applicant attended a madrassa for a period before coming to Australia in 2012. However, for the reasons set out above, I do not accept other parts of the applicant’s account. I do not accept that he was forced to undertake military training at the madrassa. I do not accept that he was targeted by religious leaders or the intelligence agency of Pakistan (or any other country). I do not accept that his brother was a terrorist or linked to terrorism or that his brother participated in a terrorist attack. I based this finding on the following:
·     The lack of any evidence presented by the applicant’s that links his brother to the Wagah border bombing attack, even as a victim
·     The lack of detail in the applicant’s evidence to the delegate and at hearing, including his inability to describe conversations he allegedly had with his brother and father, a lack of detail (and changing details) regarding what went on at the madrassa, and his inability to recall key discussions regarding his brother’s participation in the Wagah border attack or the involvement of ISI in the madrassa operations
·     The significant discrepancies between the applicant’s written claims and the account he provided to the Tribunal, most notably regarding incidents at the madrassa when he claimed to have been starved and beaten and regarding the manner of his departure from Pakistan in 2014
·     The lack of any country information to indicate that militant groups or intelligence agencies attempt to forcibly recruit adults of the applicant’s background and the lack of a clear rationale for them so doing
·     The discrepancy between the applicant’s documentary evidence stating that his brother’s body was interred on 3 November and the applicant’s statements at hearing that his brother’s body was present and received the janaza ritual at a funeral ceremony held after the applicant’s departure to Pakistan on 7 November
I have considered the applicant’s argument that these events were a long time ago and he has forgotten much of what has occurred. However, I do not accept that this argument sufficiently explains the overall deficiencies in his evidence. While I do not expect perfect recall, I would reasonably expect the applicant to be able to remember at least some of the key incidents in his written claims such as being beaten and starved at the madrassa, learning that his brother was a willing participant in a terrorist attack, or being abducted from the airport and taken to a police station where he was beaten and interrogated. Missing also from the applicant’s account at hearing was a wealth of detail about the political context of his brother’s death that appears in his written claims. His written claims indicate or infer that the terror attack on the Wagah was a Pakistan state-sponsored operation, and names organisations such as CIA, the ISI and even’s India’s RAW as covert supporters of or direct participants in either the Wagah attack, or (in RAW’s case) his brother’s demise. Despite prompting, the applicant did not repeat these claims at hearing. Indeed, the applicant made a statement at hearing to the effect that he knew nothing about whether ‘the mullahs’ were linked to any particular group.
I note also that the applicant also had an interview with the delegate in 2019 when his recall should have been that much clearer, and where he arguably provided even less supporting detail, despite repeated prompting. He also omitted to mention at that interview key details that appear in his written claims. The applicant has not put forward any information (medical or otherwise) to the effect that his recall is adversely affected, nor did he make any such claim at hearing or subsequently. The applicant’s only explanation was that he raised the things he could remember at the time.
I am not satisfied that the applicant’s claims are credible or that he faces any harm on return to Pakistan from religious leaders, intelligence agencies in Pakistan, India or the US, militant groups, or from any other actor. I am not satisfied that he or his brother had any involvement with militancy in Pakistan or that the applicant would be viewed as having or imputed to have such affiliations. I am satisfied that he would not face harm on return to Pakistan based on the claims put forward or for any other reasons.
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).
For the reasons set out above, I have already found that the applicant does not face a real chance of harm on return to Pakistan because he was (would be) forced to undertake military training, because he would be targeted by religious leaders, militant groups, or the intelligence agency of Pakistan (or any other country), or for any other reason. Based on the same reasoning, I am satisfied that the applicant does not face a real risk of significant harm for those (or any other) reasons on return to Pakistan.
The applicant has not put forward any other claims that would engage the complementary protection criteria.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damien Power
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.
…

[2024] AATA 4412

20 September 2024

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