1919962 (Refugee) - [2024] ARTA 657

1919962 (REFUGEE) [2024] ARTA 657 (14 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1919962
Tribunal:General Member Genevieve Hamilton
Date:14 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant be taken to have satisfied s 36(2)(a) of the Migration Act.

Statement made on 14 November 2024 at 3:52pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race – Pashtun ethnicity – religion – Sunni Muslim – sought asylum in a Western country – applicant was working indirectly for NATO – political opinion – anti-Taliban political opinion – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 4.15, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 September 2018. The delegate refused to grant the visa on 24 June 2019.
The applicant attended a hearing of the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
One or more of the above-listed reasons must be the essential and significant reason or reasons for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: ss 5J(4)(b), (c).
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)). This is an inclusive and not an exhaustive definition.
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Arbitrary deprivation of life and the death penalty are somewhat self-explanatory. Torture and cruel or inhuman treatment or punishment both involve intentionally causing severe pain or suffering, whether physical or mental. Degrading treatment or punishment is defined as intentionally causing extreme humiliation.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
CLAIMS AND EVIDENCE
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 arrived by boat and was initially interviewed on 26 December 2010. He said he was from [a village], in [a] District, Khyber Pakhtunkhwa Province, Pakistan. He was born in [year]. He married in 2008 and had a daughter (and a son born after the applicant arrived in Australia). His parents were living in a refugee camp.
In due course the applicant was able to supply a copy of his national ID card and the biodata page of the passport used to depart Pakistan.
In a statement of claims the applicant said he is a Sunni Muslim. His oldest brother used to work in a bank, but this was prohibited by the Taliban. He was kidnapped and has not heard of since. In 2008 the Mehdi militia destroyed a number of villages in the district including his own. The family fled to [City 1] and has not returned. Their house was burned down.
In mid-2009 the applicant’s [vehicle] was hit and burned. He had been [doing specified work] for NATO. It was in a convey of trucks in Peshawar waiting to cross the [border] with Afghanistan. The Taliban destroyed all the trucks. Late that year armed Taliban came to his house. He escaped. He believes they were after him for collaborating with the Americans. The Taliban in Pakistan had said they would hunt down and kill all collaborators. This message was conveyed through the mosques and other public places. Three [drivers] kidnapped in January 2011 were shot dead and a left note near them saying this would be the fate of people who have worked for NATO forces.
The applicant decided to leave Pakistan and moved about until he was able to get a visa for [a country]. The applicant claimed that his wife received a threatening letter from the Taliban after he arrived in Australia.
The applicant was subject of a Refugee Status Assessment in 2011 and then an Independent Merits Review in 2012, then an International Treaties Obligations Assessment in 2015. He consistently stated that the Taliban letter arrived after he came to Australia. He inconsistently numbered the trucks in the convoy and how many of those were blown up. There had been also some confusion about how close he was to convoy when it was blown up, and when the Taliban came to his house causing him to escape. Apparently at some stage the applicant submitted a copy of the Taliban letter but it is not on the file before the Tribunal, and he stated that the original
[A] Counsellor report dated August 2015 – acutely depressed and anxious. Claims consistent with statement.
[Reports] indicated that the applicant had been transferring large amounts of money to his allegedly missing brother from 2013 to 2019.
A further statutory declaration dated 22 May 2019 the applicant said he feared being harmed or killed because of his Pashtun ethnicity, and because he has sought asylum in a Western country, and because he worked [for] NATO, and because his brother worked for [a] bank that owned interest. He said [his brother] was kidnapped around 2009 while working for the bank in Afghanistan. Other bank employees had also been targeted.
His sister lives with her husband, and his younger brother [is] studying in Peshawar. The applicant described the period of fighting during which his village was destroyed. He said the Mehdi militia claimed responsibility but they may have been directed by the Taliban. There was a lot of fighting at the time including between Shi’a and Sunni groups and the Taliban had secret support from the Pakistan Government.
He had been driving his [truck] to the border for about 4 months when he got the letter from the Taliban. He had been driving the truck for about half a year when it was burned in the convoy on the border. The applicant described this incident in quite some detail. The truck was sold for scrap in Peshawar.
A [GP] letter dated May 2019 states that the applicant has likely PTSD.
The applicant was interviewed on 29 May 2019. In a post-interview submission dated 12 June 2019 the then representative stated that the applicant was not transferring money to his brother but to his brother’s wife, in his brother’s name. Regarding a problem that arose during interview in that he said he got the letter from the Taliban while he was still in Pakistan, the representative said that he had earlier misremembered because of his mental illness.
Submissions and an updated statutory declaration were provided to the Tribunal in the course of the review and prior to the hearing. In his new statutory declaration the applicant said his family was able to access the money he had been able to send in the name of his brother. His brother had now (two and a half years ago) been released due to the payment of a significant amount of money to the government of Pakistan. But he has been put into care because he is very sick from his years of captivity. The applicant also claimed that his wife receives threats from neighbours because the applicant has been living in the West and considered an infidel.
The submission was accompanied by sources of country information.
At the hearing the applicant described in some detail the process of obtaining the [truck], the frequency of blockades on the border, and how he ran away when the trucks were set on fire and came back to see the damage to his truck. Later the Taliban took over Khurram and anyone who had helped NATO was targeted.
The applicant said his parents and a cousin were now living back on their farm. Other relatives are in various places, his siblings are in Peshawar. He described the fighting that occurred in 2008 that displaced his family at the time. He described how the [name] in the tribal areas are both Sunni and Shi’a and fight each other as well as the Taliban. He believed he would still be at risk of being targeted by the Taliban in Pakistan because of his [work]. This would not have been forgotten. He cannot relocate to an area where Pashtuns are a minority.
The applicant said he is no longer in a relationship with his wife and has a new partner. According to their culture, however, they do not divorce. She and the two children live with her parents.
DFAT reports as follows:
Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. See also Armed groups.
Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
…
Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.
…
A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
…
There were 11 cross-border attacks from Afghanistan in 2020, involving the Taliban, Afghan National Army and Afghan border forces; 17 died and 18 were injured in these attacks.
With the Taliban seizing power in Afghanistan in August 2021, Pakistan bolstered security along its land border with Afghanistan. Pakistan has completed over 90 per cent of a border fence between the two countries, but its border with Afghanistan remains porous and susceptible to irregular migration and people smuggling, movement of terrorists and extremists, and transit of narcotics and other illicit goods. As the economic and human rights situation in Afghanistan deteriorates, further displacement of Afghans across the border to Pakistan is possible.
…
Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets.
FINDINGS AND REASONS
Based on the information before it, the Tribunal finds that the applicant’s country of nationality is Pakistan and that he has no right to enter or reside in another country.
The applicant made claims which were not credible and the Tribunal does not accept. First, his brother was never kidnapped. The applicant was sending him large sums of money the whole time he was supposed to have been in captivity, to an address in Peshawar. Neither explanation for this (that the brother’s wife was accessing the money, or that the applicant’s other relatives were accessing the money) was plausible. Second, the applicant gave inconsistent evidence as to whether the threatening letter was received before or after he left Pakistan. The Tribunal does not accept that this letter is genuine.
These claims were close to the core of his own, therefore the Tribunal had to consider carefully whether any part of his account was true. Many open source reports were made over the time frame relevant to the applicant’s claims, of [tankers] for NATO being blockaded at the border, including the border crossing at [Town 1] where the applicant claimed to have operated, and of such trucks being blown up by Taliban forces. This part of the applicant claims was therefore consistent with known acts. The applicant made this claim consistently and was also able to describe his involvement in this activity in sufficient detail to persuasively put himself in the picture. The inconsistencies detected by past decision makers in the account did not strike the Tribunal as real inconsistencies given that he was interviewed several times about the events in question and may not have always heard the questions the same way.
Accordingly, the Tribunal accepts that the applicant was working indirectly for NATO as claimed. It is easily conceivable, notwithstanding the passing years, that Taliban-supporters in his village/district will recall his role.
Based on his own evidence and the country information, the Tribunal therefore finds that the applicant faces a real, if small, chance of serious harm as defined, for the reason of an anti-Taliban political opinion. Effective protection measures are not available to the applicant – the Government of Pakistan does not have effective control over the KPK.

Based on his own evidence and the country information, the Tribunal is not satisfied that the risk of serious harm to the applicant is localised, or that there is any particular locality where he does not face a real chance of serious harm for the reasons of his imputed political opinion, which he can safely and lawfully access and find food, shelter and work. The real chance of serious harm therefore relates to all areas of Pakistan.
Accordingly, the Tribunal finds that the applicant is a refugee as defined in the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Pursuant to Migration Regulation 4.15(1), the Tribunal orders that the applicant be taken to have satisfied s 36(2)(a).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant be taken to have satisfied s 36(2)(a) of the Migration Act.
Date of hearing: 6 September 2024
Representative: Ms Carina Ford (MARN: 9802862)