1921801 (Refugee)

1921801 (Refugee) [2021] AATA 3572 (10 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1921801
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:10 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 August 2021 at 8:19pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from Taliban – son of businessman and political party member – father detained, tortured and ransomed and applicant pressured to join – credibility – delay in applying for protection – applied after further student visa refused – stated intention to return to home country and no fear of harm expressed in student visa applications and review – mental health – psychologist consultations started after visa refused – country information about general security – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), 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 dependant.
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 25 July 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 13 March 2018.
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 (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
The following statement was made in support f his claim for protection:
The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during an interview with the Department of Immigration.
I fear that if I was forced to return to Pakistan, I would be seriously harmed and quite possibly killed because I have become a target of the Taliban.
I fear this harm form the Taliban, who are openly operating in the area where I lived and throughout Pakistan, because the Taliban have directly approached my family and demanded that I join them.
My Background and history:
I was born in [Village 1] Kabal, Swat district, Khyber Pakhtun Khwa, Pakistan on [date]. I am Pakistani Pashtun and Sunni, I speak Pashtu, Urdu, and English. I can read and write Urdu, and English. Before leaving Pakistan to come to Australia I did not live anywhere other than in Pakistan.
I have never married, and I am still single. My father was a member of Awami National Party (ANP), in Swat district, Khyber Pakhtun Khwa, and he had owned [a business].
Why I left Pakistan:
Before leaving Pakistan, I worked with my father, assisting him with all the factory paper works. My father had his [business] in the heart of Swat valley, in [Village 1] area. He was well-known to everyone as an owner of the [business]. In addition of operating the [business] my father was an active member of the(ANP), in Swat valley, because of his businessman statues . My father, before, the start of first Swat war in late 2007, had a very big business and was important member of the (ANP). However, when the Taliban took over the Swat Valli in late 2007, and imposed their brutal rules, the Taliban detained my father accused him of being member of the (ANP) and a secular, because the (ANP) ideology is premised on non-violence and secularism. The Taliban tortured my father and held him as a captive for almost three weeks, before, the Taliban realised him after my family paid large amount of money as a ransom to the Taliban and on the guarantee, that he will renounced his membership with the. (ANP)
At the time my father was detained by the Taliban I was [age] years old and the Taliban was forcing the families in Swat to get their young sons to join the Taliban in fight against the Pakistani army. As their presence increased, it became dangerous for ordinary people to live there peacefully. The Taliban were actively working in the area, recruiting new members and working to gain control over the area and forcing the people to follow their rules imposed by them. Anyone who did not support the Taliban risked being targeted and killed by the Taliban. For instance, the Taliban are targeting innocent people, including schools, shopping centres and other places where ordinary people work and live in order to put their fear in the mind of the ordinary people.
In late 2007, the Pakistani army, started the military operation in Swat District and as a result of the fight we had left our home and everything behind, and even before we left two mortar shells landed in our home which narrowly injured my mother. We luckily, escaped and reached the “Shergur” and different parts of Swat in different time of military operation in Swat” district, otheries the Taliban, blocked the escaped rout of the people and tried to use them as a human shield to slow down the Pakistani army advance to the valley.
Consequently, more than 1 million people became homeless and escaped their homes and thousand were killed due to the fighting. We stayed until mid-2009 in different parts of Swat, in a very dire and miserable conditions, the Taliban had even infiltrated the refugee camps and every area and randomly targeting the people.
After the Pakistani army rested back the control of the Mingora and our area after more than year of fighting, we returned back to our area, because, we had no choice to go anywhere else in Pakistan. When we returned, the security condition was very fragile as well, we could still hear the sound of rockets and some other explosion sounds. We lost our home [business] and everything due to the fighting and we were living in fear even before I came to Australia in early 2013.
The Taliban even, after they were driven out of major towns and cities centres in Swat district, they were not fully defeated and disappeared, and they are even still till today are very active in all Swat valley and even on second of February 2018, the Taliban had targeted an army command centre in Swat and killed elven Pakistani soldiers including an army captain. Since we had returned back to our area in [Village 1], until I left Pakistan, The Taliban were able to time to time come to our area and almost everywhere in Swat district during the night and even some during the day intimidating the people and killing those whom they accused of being the spy of the Pakistani army.
The Taliban, even on couple of occasion approached my father, when he was trying to inspect the damage of his [business] to rebuild it, asked him that he should send one adult member of his family to the Taliban to join them for the good cause of Jihad against the Pakistani army, otherwise, they would by force take me as I was the only male adult of my family to join the Taliban.
So, I was not prepared to join the Taliban and become involved in their dangerous, inhumane and illegal activities. I wanted to live a peaceful and productive life, supporting my family and working in positive way in my community. However, the Taliban, instilled fear in the mind of the people, despite the presence of the Pakistani army, the Taliban could target anyone, they believe were against their interest or speak out against the Taliban brutal and inhuman actives and rules.
As I was studying and every day I was going to school, I had a great fear that the Taliban may catch me at any time and take me with them and also had a great concern for the safety of my father, because once he was detained by the Taliban and accused him of being secular and member of the (ANP) . Thus, I avoided going outside as much as possible, so that I could avoid encountering members of the Taliban. My father was encouraging me to stay home as much as possible, and avoid going outside, for the same reason.
A number of months before I left Pakistan during the late 2012, the Taliban sent threatening letter to my father. There was a knock on the door at around midnight, when my father went to the door he found the letter. My father showed me the letter which was handwritten in Pashtu, my father told me that the Taliban states in their letter that as the responsible member of our household, I join Tahrik-I Taliban, or else I would be killed. They were targeting me as the responsible person for our household. Because my father was elderly and would not be useful to them. After, that all our family including my father developed enormous fear for me and our family safety, as the Taliban targeting not only me but more other families in the Swat district for the same reason.
After all that happened, I decided to leave Pakistan. My father had found someone, who could help me to apply for a student visa to study in abroad and an educational agent was introduced to my father near Peshawar city of Pakistan to help me to apply for study in Australia. So, he helped me after I provided him with all my education documents to obtain me an Australia student visa in early 2013.
I was extremely, lucky that I was granted a visa to study to Australia and to find myself a safety. After I arrived in Australia in February 2013, I continued my education without straight away applying for a protection visa, because, I wanted to finish my education. I continued to study in different educational intuitions in Sydney, until mid-2017, before, a grant of further student visa was refused to me. As the security conditions is extremely volatile and dangerous in Pakistan and particularly, in Swat, I could not return back to Swat, if I do so it equate to that I wilfully commit suicide, because, I will be the target of the Taliban, because they may eventually know that I am in Australia and, soon after that they will declare me as an infidel, spy and would behead me.
My fear if I returned to Pakistan:
I strongly believe that if I return to Pakistan the Taliban will continue to target me. I did not believe they will allow me to return and live in peace. They will target me I would not agree with to join them and also, they will consider me as a spy because I spent years in Australia. Since I left Pakistan, The Taliban on a few occasions approached my father and asked him about my whereabout. My father lied to them telling them that I am not in Pakistan, but not telling them that I am in Australia. Recently they have been asking my father less often, although they still ask from time to time about my whereabout. If they understand and know that I am in Australia they would even harm my family and they would consider me as a pure infidel.
Can I relocate or move to another parts of Pakistan?
I strongly believe that I cannot avoid this risk by going to live elsewhere in Pakistan. Firstly, it would be difficult to relocate to another part of Pakistan, because I am Pashtun and Pashtun are greatly discriminated and even being targeted if they live outside their communities in Pakistan. Moreover, the Taliban are very active and have contacts throughout the country and wherever I go they will identify me who I am, and I will be targeted. If I arrive as a new person in a different area in Pakistan, the
Taliban operating in that area will identify that I am new and will make enquiries about where I came from and where I have been. It will not take long for them to identify who I am. The fact that I have returned from Australia will draw further attention to me, as I will be subject of Taliban attention from the moment I return, no matter where I go. I do not believe that there are steps I can take to avoid attracting Taliban attention and being targeted.
Can the authority of Pakistan protect me?
I strongly believe the Authority including the Law Enforcement authority cannot protect me, because they cannot protect themselves rather than the local people. The police in our area and elsewhere in Pakistan are so corrupt and weak and they have been only living in a barricaded compound and I and my father many time approach them for help every time their response were that they cannot protect themselves and they are unable to do anything and that they are so helpless.
The above statement is true in every particulars and forms and from best of my knowledge.
The statement was read back to me by [migration agent], and I agree with its contents.
AAT Hearing
The applicant was asked whether he knew everything that was in his previous visa applications and appeals and agreed that it was all true and correct and he agreed that it was and he didn’t wish to change anything. The applicant was asked and said that he understood the interpreter.
He claimed that if he returned to Pakistan, his father was a member of the Awami National Party and he had a business and there were kidnappings and extortion occurring that related to this. Asked again to specify the type of harm that he feared, he claimed that the (Pakistani) Taliban (TTP) wanted the applicant to join them because he was the oldest son and they also wanted money from his father and took his father away.
He was asked to focus on claims relating to him. He agreed that if he returned to Pakistan that TTP wanted him to join them. The TTP wanted his father to send the applicant to join the TTP. If he didn’t join them then they would kill him. Asked if he had any other claims, he said that if he didn’t join them his family would be in danger. It was put to him that he had to focus on the claimed harm to him, not his family. He agreed that the TTP recruitment was his only claim.
Asked when he first had this fear, he claimed that when he was [age] he was doing paperwork for his father and the TTP were controlling the area and they wanted him to join them. They were also demanding money and torturing people. Asked what year this was, he said it was 2012. Asked when in 2012, he said he wasn’t sure but it was late 2012. Asked where he was when they came to try to recruit him, he claimed he was at home in the village.
He didn’t go with the Taliban when they came because he didn’t agree with what they did as they killed innocent people. Asked if they physically tried to take him, he said that they wanted to but he was hiding. He was at home initially but then extended family houses and friends but it was a small area and it wasn’t possible to hide there all the time. Asked if he hid in the local area, he said he stayed with his maternal uncle and others. Asked how long he did this for, he said he did this for three months. He also went to Islamabad for a while – about eight months.
Asked what time he was in Islamabad for, he claimed that he only remembered the time he came to Australia but didn’t remember the time in Islamabad. He came to Australia in February 2013. It was put to him that he must have been in Islamabad from June 2012 if he was there for eight months. He agreed that he was in Islamabad for eight months before coming to Australia – it was again put to him that he must have been there from June 2012 and he said he didn’t remember exactly. It was again put to him that if he was in Islamabad for eight months before coming to Australia it must have been June 2012 when he got there.
He then agreed it may be June. It was put to him that he had also said he had been hiding in various houses for three months before this so the TTP must have visited around March 2012. The interpreter at this point said that there was some difficulty with dialects as the applicant was Pakistani and the Interpreter Afghan. It was put to him that things were fine at the moment and that if issues arose they would be dealt with. It was put to the applicant that the TTP must have come in early 2012 and not late 2012 given the timeframe he had laid out. He aid this may be the case but he didn’t really remember as it has been a while and he doesn’t remember the month. It was put to him that he remembered he was in Islamabad for eight months. He said this was correct.
It was put to him that in his statement and today he had said the TTP came to get him in late 2012 yet given the timeframe he had outlined it couldn’t have been late 2012. He was asked why there was a discrepancy and he stated that because iof the different calendars there may have been some confusion – he was asked if he had mentioned previously that he was using a different calendar and he said that he had not mentioned this before. Asked if he had any brothers in Pakistan, he claimed that he had a younger brother who was currently [age] or [age].
He said at the time that he was currently seeing a doctor because if his memory that was affected by anxiety and he was taking medication. Asked if he had ever previously mentioned any medical issues that he had, he said that he hadn’t s he didn’t know what was needed. He had been seeing this psychologist for around a year. He was asked to provide some medical history relating to seeing a psychologist, including issues relating to his memory.

Before he came to Australia he helped his father with his business and taught at school for a time. Asked how long he taught at school, he claimed that he didn’t remember exactly but it was a short time. Asked to be more precise about how long he taught for, he claimed it was about six months. He didn’t remember when he began and he was asked to try to remember – he said it was around late 2011. He had a certificate about this.
Asked why the TTP would be interested in him in 2021, he claimed that there would still be the same situation. The local people knew him so he would face the same situation. Asked if he left Pakistan to escape the TTP, he claimed that he did. He came for safety and to be out of danger.
He was asked to confirm that his father was a member of the ANP and he agreed that he was. He had been a member for a long time. The party was the only one for the benefit of the people. Asked if he had ever been a member, he claimed that he would support his father. Asked again if he had ever been a member, he claimed that in college he was involved in their (the ANP) activities. Asked if there was any evidence of his or his father’s ANP activities such as photos or media reports, he claimed there was a ANP membership card and a certificate and he would try to find it.
He said he had been asked about it previously and he would try to see if anyone could help him with this. Asked if he had anything at the moment, he said he would have to check his documents. It was put to him that country information indicated the ease of getting fraudulent documents, so he was asked if he had photos or media reports - he claimed he wouldn’t provide any bogus documents.
Asked how long after arriving in Australia he applied for protection, he said it was March 2018. It was put to him that the obvious question was why it took him six years to apply for protection if he left Pakistan to escape the Taliban. He said that it took him a while to find the right advice. It was put to him that a six year delay was of quite some concern. He said at the beginning he didn’t know what to do but he got bad advice about whether to continue his studies but it took a long time to get the right advice.
Asked if he sought advice from a lawyer or migration agent, he said he did in 2018. Asked what advice he sought from 2013 when he arrived, he claimed he was thinking about studying and staying here. Asked if he had finished his studies, he said he hadn’t because he didn’t get a visa. Asked why he didn’t get a visa, he said that at the beginning the agents gave him misleading information about how to get his study visas renewed.
He was advised about s 424AA and it as put to him that in his statement in support of his student visa refusal appeal, he told the Tribunal that he had no intention of staying in Australia but had every intention to return to Pakistan and that as soon as he finished his study he would return to Pakistan as his family needed his support. If he was given a second chance he would finish his course and return to Pakistan and had a vision of himself working in IT in Pakistan.
Yet he told the Tribunal today that he came to Australia to seek safety and not return to Pakistan. There was an inconsistency in what he told the AAT about his student visa and the claim to fear serious harm in Pakistan that he had claimed to the Tribunal today. The concern was that he wasn’t telling the truth and changed his story depending on who he spoke to simply to receive a visa and this impacted on his credibility as a witness.
He claimed that at the time he had lost hope about staying and had to say this in order to stay. His life was in danger. He was asked to confirm that he knew this statement to be false when he made it to the Tribunal – he said that he had to say this in order to stay legally with a visa in Australia. He said the agent told him at the time that he had no other option and he apologised for saying this. he knew it was not true when he said it.
It was put to him that his student visa was refused in January 2017 and he applied for protection in August 2018 – the concern was that he was only concerned about staying in Australia and he had no problems in Pakistan. He apologised for what he said but he had no choice at the time if he wanted to get the visa as he couldn’t stay illegally here. Asked again how long he taught at the school in Pakistan, he said that he didn’t remember exactly but it was about six months.
It was put to him under s 424AA that he provided a document that he claimed was from a school that said he began teaching there in January 2012 and he had said he taught there for about six months, but he had said before he had been in hiding since March 2012. This went to issues of his credibility. He said at the time there was a military operation and the teachers asked him to help. He did get confused with the dates because it had been a long time ago, Asked how he got the job, he claimed that at the time there was war and the teachers weren’t there. He was asked to work there as a volunteer. His former teacher knew and asked him to help, and his brother was a friend of his father’s.
He was currently working in Australia as [an Occupation 1]. Asked if his family still lived in the same town/village he said they didn’t. His sister was married and lived in another village and his parents would visit her or his maternal uncle. Asked again if his parents still lived in the same village, he claimed they couldn’t come back to the same area and moved between his sister and his uncle. They had lived away from their village for about a year. The situation had become dangerous for him over the last 18 months and he couldn’t live in his area.
Asked what happened recently to make him move, he claimed that there were targeted killings and his father was in danger. It was put to the applicant that he lived there until 2013 without problems and was asked what had happened recently to change that. He claimed that it was the targeted killing had increased and his father had to keep moving. He was asked whether this killing began at the start of 2020, and he said it had been in place for a very long time but it had recently increased so he had to move. Asked if he was okay before that, he claimed that there were fewer checkpoints these days so the situation was more dangerous now. Before this it still wasn’t good for his father.
He was asked what had happened to his father since the applicant left in 2013, and he claimed that there were more checkpoints previously but as they were reduced they couldn’t even look after themselves. It had become dangerous for his father. Asked when it had become dangerous, he claimed that it hadn’t been safe for a long time – many years, but it worsened for the last 18 months as the checkpoints were reduced. Asked if his father used to move around prior to this, he claimed that it had always been dangerous and he wasn’t able to freely move around. He was still limited in his movements previously but would travel if he had to.
Asked why he couldn’t relocate in Islamabad given there were 290 million people in Pakistan and he had previously lived in Islamabad for eight months without problems. He said it wasn’t safe in Pakistan and Pashtuns were a minority and things happened to them – they were discriminated against in the Punjab and Karachi and Sind and wherever they were. He was asked if it was so bad there why his father sent him to Islamabad for safety for eight months. He said that he needed to get out of the area and living in Islamabad was very hard – he just went to study and come back to his room and he wasn’t in contact with Pashtun people. It was put to him that nothing happened to him there – he said it was because he wasn’t in contact with anyone. It was put to him that he went to university, so had to travel to and from there, attend classes and eat somewhere so he was out and about.
He claimed that he used to eat in the hostel and would take a taxi to the university and back and he wouldn’t go out. Asked why he went out at all and did a course that involved travel if his father had sent him there for his safety. He aid that education was important and he was almost living in hiding in Islamabad and wasn’t really socialising but he couldn’t stay forever in hiding.
The Tribunal had a concern that he simply went to Islamabad to do a course and apply for a visa for Australia and never went there to seek safety. He claimed that his aim was to go to a safe place (and also to study) and then to live in a safe country. Asked of he had anything else he wished to say, he said that eh didn’t. The adviser said the situation for Pashtuns was not good and they were discriminated against and the general security situation was not good.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa in February 2013 and applied for protection on 13 August 2018. This was refused by the delegate on 13 July 2019. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. In arriving at this course of action the Tribunal had regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by this means.
The applicant is a [age] year-old single male. He claimed that if he returned to Pakistan he would be killed by the TTP because they had tried to force him to join them and he had refused.
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.
I have taken into account a psychologist’s report that he provided post-hearing however I lend it little weight in accounting for his inconsistencies. To begin with the psychologist appears to have uncritically accepted events relating to the applicant in Pakistan, whereas the Tribunal has found the applicant to lack credibility as a witness.
The letter also noted that he had been treating the applicant since March 2020 despite having arrived in Australia in 2013. This attendance and diagnosis was also after he received his Departmental decision to refuse his visa. I further note the psychologist has stated that the visa uncertainty is the main factor in maintaining and perpetuating his psychological illness. The fact he only began seeing the psychologist nine months after his visa refusal raises concerns in the Tribunal’s mind as to his true motivation for receiving a psychologist’s report.
I also note the psychologist diagnosed PTSD although I again lend this little weight. This is because of the lack of credibility of the witness and the fact that the diagnosis was based in whole or in part on the applicant’s psychosocial history that in turn relied on the applicant being truthful.
The applicant never provided a letter from a doctor that indicated he had a mental illness and I note that he has not indicated, nor did the letter state, that he is on any medication for a mental health condition. I have noted the timing of the applicant’s appointment to see a psychologist, the fact he has no need for medication and the finding that it was the stress of the visa uncertainty that was the main causative factor of what the psychologist described as ‘psychological illnesses’. Given this I place little weight on the psychologist’s report as being a reason for any inconsistencies in his evidence, nor of any chronic mental health condition. Indeed, the psychologist indicated that a resolution of his immigration case would greatly improve his mental health. This decision will provide that resolution.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely reliable, credible or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Credibility Issue
The applicant only applied for a protection visa after his student visa was refused and an appeal against that decision was affirmed. During his appeal he told the Tribunal that he had no intention of staying in Australia but had every intention to return to Pakistan and that as soon as he finished his study he would return to Pakistan as his family needed his support. If he was given a second chance he would finish his course and return to Pakistan and had a vision of himself working in [specified industry] in Pakistan.
This was patently untrue and the applicant acknowledged as much when the information was put to him by the presently constituted Tribunal. The current Tribunal therefore places great weight on the applicant’s willingness to fabricate evidence in order to advance his personal goal of obtaining a visa to stay in Australia. An assessment of his credibility cannot ignore the applicant’s previous actions in assessing the credibility of future evidence provided by the applicant.
Delay in Application
Another issue that raises significant concerns regarding the veracity of the applicant’s claim is the lengthy delay between arriving in Australia and applying for protection. Having arrived in Australia in February 2013 his student visa was refused in January 2017, that decision was affirmed by the AAT in March 2018 and he then applied for a protection visa the same month. After claiming that he escaped to Islamabad and took extreme security precautions for a period of eight months so that he could find safety in Australia, the fact that he only applied for protection five years after arriving in Australia does not engender confidence in the Tribunal that the applicant harboured a well-founded fear of serious harm on return to Pakistan.
I do not accept that he didn’t know what to do and got bad advice about the means to stay. Given the level of harm he claimed to fear in Pakistan it makes no sense that he would not seek professional advice regarding his options to be protected by an asylum-granting country such as Australia. I do not accept the argument put forward by his advisor in a pre-hearing submission that he believed that he could complete his education and reside permanently in Australia. Not only is this inconsistent with what he told the AAT previously when he appealed his student visa refusal, but his student visa was refused in January 2017, affirmed by the AAT in March 2018 and yet he didn’t apply for protection until August 2018. He knew his likelihood of staying as a student therefore, was seriously in jeopardy in January 2017 and had disappeared in March 2018 so I do not accept that he believed he would be able to stay permanently.
Interest from TTP
I do not accept that the applicant was, or would be of interest to the TTP as a potential recruit, or that he had to hide from them when they cane to take him away. I have taken into the translation of a letter that he gave to the Department at interview (the untranslated letter was not available to the Tribunal) allegedly from the TTP to the applicant’s father telling him to hand over the applicant to them so he can take part in jihad. I lend it little weight.
Country information indicates that document fraud is widespread in Pakistan, and there is no way of establishing the veracity of the letter.[1] The Tribunal can find no country information, nor was any provided to the Tribunal that would indicate that the TTP forcibly recruits individuals – nor does it make sense that the TTP would still have an interest in recruiting a single individual eight years after they allegedly sent a single letter to his father.
[1] DFAT Country Information Report – Pakistan, 20 February 2019 p 71.
I also do not accept that the applicant’s father was targeted by the TTP because his son hadn’t joined them, or that his father had bene kidnapped by the TTP. It relies on the applicant’s opral testimony which I have found not to be reliable. I also note that the applicant’s father remains living in the same area even though the applicant had claimed the area hadn’t been safe for some time but particularly over the last 18 months. Not only is this inconsistent with country information relating to the Swat Valley (see my findings relating to general security below), internal relocation is possible for Pashtuns (see same section below) so the fact the father remains in the same area is consistent with available country information – that the area has low levels of anti-government activity – and indicates he feels secure in the area.
Membership of ANP
I do not accept that the applicant or his father was or is a member of the ANP, that he was kidnapped and tortured by the TTP and made to renounce his membership. This relies entirely on the applicant’s oral testimony which I have found lacks credibility. I have taken into the translation of a letter that he gave to the Department at interview (the untranslated letter was not available to the Tribunal) allegedly from the local branch of the ANP attesting to his father’s active membership of the party for the last seven or eight years (the letter was written in June 2016) however I lend it little weight.
Country information indicates that document fraud is widespread in Pakistan, and there is no way of establishing the veracity of the letter.[2] The applicant ws given the opportunity to do so, however he provided no other evidence in support of his claim such as a photo of either himself or of his father at any ANP events, social media entries or activity that would show some interest in, let alone connection with the ANP. As a consequence I am not satisfied that he is, or would be perceived to be connected to the ANP.
General security
[2] Ibid.
While I accept the broader FATA has seen fighting in the past and has ongoing security issues, this appears to be patchy and doesn’t apply to the Swat Valley where the applicant is from. Whilst the Swat Valley was the scene of significant fighting 15 years ago the situation is very different today. Country information indicates the district has more than 2.3 million people but the level of militant activity is low – in 2019 there was one attack (against a police station) and in 2020 there were three incidents (one killing of an academic, one attack against a police van and one incident where police killed two militants).[3]
[3] Extremist Groups in Pakistan’s Khyber Pakhtunkhwa Province, MRD Issues paper, February 2021
This low level of activity over two years is inconsistent with his claim that his father has had to be constantly on the move for his own protection over the last 18 months. If the security situation were to deteriorate in the reasonably foreseeable future then the applicant could relocate to other areas. Country information indicates that cities such as Lahore and Islamabad have significant minorities of Pashtuns living there and I note the applicant has already lived in Islamabad for eight months before coming to Australia.
I note that country information indicates that there is a medium risk of discrimination against Pashtuns in areas where they are a minority (in the form of terrorist-related and ethnic profiling by security forces) and a low risk in areas where they are a majority, I am not satisfied that this amounts to serious harm for s 5J purposes if he had to relocate. He has already been to Islamabad where he was sent by his father and where he studied and no harm came to him. Even if he was stopped at checkpoints more than non-Pashtuns this would be a small impost and not significant harm.

Given the same country information[4] also indicates that Pashtuns do not face a higher risk of violence based on their ethnicity than other groups I am not satisfied that when he was last there he had to remain closeted in the hostel, and hence he could readily relocate there if the security situation worsened in Swat.
[4] DFAT Country Information (various pages).
I have taken into account a range of country information provided by the applicant’s advisor prior to the hearing however I lend it little weight. It is variously dated, lacks specificity or the circumstances cited do not apply to the applicant. For instance there are three news articles referring to Swat (one about two TTP terrorists being killed, another in which a journalist was shot and an alleged extortion demand). There is no date on any of the articles, nor is there a year when the incident occurred referred to in the body of the article.
Other articles refer to a bomb attack in Lahore that killed two people, the standard of the police in Pakistan and the security situation in the FATA in 2015/2016, food insecurity and unemployment. Whilst it is accepted that the Pakistani police are poorly perceived in Pakistan and that state protection is therefore limited, I have also noted that the applicant is not in need of state [protection because his claims regarding being of interest to the TTP are false.
I also note the applicant stated that his father owns a [business] and the applicant worked for him, hence the relevance of the information regarding employment and food shortages was not apparent. Nor did the applicant make a claim about either issue at hearing, interview or in his claim. I place more weight on the country information I cited relating to the issues raised than I do on what the advisor provided.
Other Issues
I also do not accept that the applicant would be considered as an infidel or spy because he had been in Australia. He offered no country information to support such a claim, nor is the Tribunal aware of any such country information. Given travel is well established between the two countries and Pakistanis come to study in this country, the absence of any country information that indicates Pakistanis are imputed with being an infidel or have been targeted for beheading means that I do not accept that these concerns are well-founded.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was, or remains of interest to the TTP, that he had to hide from them, or that he was ever a member of the ANP, 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, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

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

[2021] AATA 3572

10 August 2021

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