1923977 (Refugee) - [2024] ARTA 495

1923977 (REFUGEE) [2024] ARTA 495 (24 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1923977
Tribunal:General Member C Wilson
Date:24 October 2024

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 24 October 2024 at 10:33am

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from extremist groups – work in vaccination team and with female staff – threats and attempted kidnapping – occasional work while studying – timing of acquiring passport – passage of time and no intention to return to vaccination work – family’s support for political party – brother an active member and granted protection visa – Pashtun ethnicity – returnee from Western country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 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 national of Pakistan, applied for the visa on 31 May 2018. The delegate refused to grant the visa as they did not accept the applicant had an adverse profile that would cause him to be targeted, and found the delay in seeking protection suggested his claims were not genuine.
The applicant appeared before the Tribunal on 15 August and 12 September 2024 to give evidence and present arguments. 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.
BACKGROUND
The applicant is a single Pashtun Muslim man aged in his late [Decade] from Karachi, Pakistan. His father is deceased and his mother lives in Karachi. He has one brother in Australia, and [brothers] and a sister in Pakistan.
The applicant was educated to tertiary level in Pakistan, completing a degree in [subject]. He came to Australia in January 2018 as the holder of a student visa.
Evidence before the Department
The applicant lodged his protection visa application in May 2018, making the following claims
·He left Pakistan because he was at risk of harm from the Taliban, Daesh and other militants who targeted him for his work at a medical centre as an assistant nurse. He was targeted for his involvement in a polio vaccination team and for working with female staff.
·In June 2017 he started receiving calls from the Taliban accusing him of committing adultery at work and threatening him for assisting infidels and providing information about Muslim families through his work in the polio vaccination team.
·He reported the threats to his manager who told him not to be scared and to continue his work.
·The calls continued and the caller was angry and told him his whole family was involved in infidel activities. They also targeted him because of his brother’s membership of a political party.
·In December 2017 he saw two unknown men who looked like Taliban coming towards him in an alley near [a] Bazaar. He thought they wanted to harm him so he ran to a nearby restaurant and begged for help from the owner. He stayed in the back of their shop until it was safe to leave. He reported this incident to the police as an attempted kidnapping.
·He moved away to Peshawar but realised it was more dangerous there than Karachi because the Taliban roamed freely in Peshawar. He also got another threatening call and the caller said they knew he was in Peshawar and he would not be safe anywhere in Pakistan.
·The Pakistani police are anti-Pashtun and racially profile Pashtun youth and kill them in fake police encounters. The police target Pashtuns because they associate them with the Taliban.
The applicant was interviewed by the delegate on 11 March 2019.
Evidence before the Tribunal
Prior to his hearing the applicant provided a statutory declaration dated 13 August 2024 and a number of articles reporting on the targeting of polio vaccinators, treatment of Pashtuns in Pakistan, and the policy to stop issuing passports to Pakistanis seeking asylum abroad. In his statutory declaration the applicant raised the following:
·His family are strong supporters of the Awami National Party (ANP) and his grandfather and father held prominent positions in the ANP. His brother was [position] of the party unit [Number] area in Karachi, but is now living in Australia after being granted a protection visa. Another brother lives in secure accommodation in Pakistan because he is in the Pakistan [military].
·He left Pakistan because his life was in imminent danger because of his work at the medical centre. Although he was not qualified in nursing he got a job there as a nurse’s assistant because his neighbour worked in the hospital administration. The reference provided by the medical centre put approximate dates for this work there. His work involved administering medicines, minor dressings, and helping with the external polio vaccination team. They would visit homes in the local area to administer the vaccine. He had a deep love and respect for vaccination work as his father and grandfather instilled in him the importance of doing good.
·Hard-core Muslims such as the Taliban and Daesh target polio vaccination workers because they consider them to be spies and agents of America and its allies. He was personally threatened for doing this work and accused of providing information about Muslim families.
·Religious patients at the hospital sometimes criticised him for his work and accused him of having relationship with the female staff.
·He fled to Peshawar after the attempted kidnapping but was not safe there. He reached out to his maternal uncle who told him to go to Islamabad where the uncle made arrangements through an agent to get him a visa for Australia.
·Taliban and Daesh targeted him and will continue to target him for his work on the polio vaccination team in combination with his family’s support for ANP, his brother in the [military], and his asylum seeking brother in Australia.
·The Taliban know his brother got away to Australia and know the applicant is now living in Australia and seeking asylum here. If he returns they will think he is a Western spy.
·If he tries to relocate in Pakistan he will have to register with the local police. The police are corrupt and will pass this information on to the Taliban. The police will also target him as a Pashtun. In July 2024 a Pashtun activist and poet was killed by the authorities.
·The Taliban and Daesh are very active in his area. They keep a record of everyone’s coming and goings and will know if he returns.
·The Pakistani government will no longer issue passports or national identity cards to Pakistani’s seeking asylum abroad. If he does not have identification in Pakistan it will be easy for the authorities or the Taliban or other terrorists to disappear him.
·He delayed applying for protection in May 2018 after arriving in January 2018 because he was depressed when he first arrived. It was only after seeking and receiving treatment that he was able to apply.
The applicant appeared before the Tribunal on 15 August. He gave evidence consistent with the claims made in his written application. He asked the Tribunal to take oral evidence from his brother in Australia, however no statement or outline of evidence had been provided for this witness. The hearing was adjourned to a date four weeks later to give the applicant time to provide a statement from his brother and for his brother to attend to give oral evidence. Some identity and education documents were received 7 days prior to the hearing, however the statement from his brother was provided only the night before the hearing with an indication the brother may not attend as his wife was due soon to give birth. At the hearing the applicant confirmed his brother was not attending to give oral evidence. No request had been made to either bring the adjourned hearing on earlier to allow him to give evidence, or to hold a further hearing at a later date to allow the brother to give oral evidence.
Following the hearing the applicant’s representative provided written submissions and articles reporting on the targeting of polio vaccine workers. The written submissions repeated the claims that the applicant feared harm for being a polio vaccination worker, as a member of a family of politically active ANP members, because of the racial profiling of Pashtuns, and as a western returnee.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant provided copies of identity documents, including his current and past Pakistan passports, as evidence of his nationality. I accept he is a national of Pakistan and find Pakistan is his receiving country.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims to face a real chance of harm in Pakistan for a number of reasons, both individually and cumulatively.
Polio vaccination worker and assistant nurse
The applicant claims he was a member of a polio vaccination team in his home area in Karachi. In support of this he provided a letter from the medical centre he worked at which stated he worked there from 1 January 2015 to 10 January 2018 as an assistant nurse. There is no mention in the employer’s letter that his work involved working in a polio vaccination team. The applicant addressed the anomaly of the dates in the letter stating that he worked there until January 2018, when he claims to have left the job in December 2017, by saying the medical centre just put approximate dates. I note however the applicant was a full-time college student up to May 2016 and further that at the hearing he said he never had a proper job in Pakistan and only worked occasionally during holidays or on weekends. He said his neighbour got him work at the medical
centre even though he had no relevant qualifications and they trained him on the job to do basic tasks and dressings. The applicant concedes he did not work at the medical centre full-time between January 2015 and January 2018, and the letter stating that he did lacks credibility for this reason.
At the hearing the applicant talked about what he did with the polio vaccination team. He says the work was not part of his normal duties at the medical centre, but that his employer assigned him to this team. The program was run by a third party. He said that because his employer told him to do it, he did not have a choice whether to work in the polio vaccination team or not. He did this work with the polio vaccination team for 1-2 hours at a time, and only occasionally. He gave a credible account of how they worked in the local community and how the vaccine was administered. I accept he had some experience in working with a polio vaccination team, and did this work occasionally, probably at some point in 2016 or 2017. Based on his oral evidence, I accept his neighbour got him some casual work at the medical centre and as part of that work he occasionally worked in a polio vaccination program.
The applicant claims he started getting threatening phone calls in June 2017 from people he believes to be associated with the Taliban. He says the threats culminated in an attempted kidnapping in December 2017. He fled to Peshawar to avoid further harm, but still received threatening calls there. For this reason he says his uncle arranged in January 2018 for him to come to Australia.
To support his claim that he had to leave Pakistan quickly he says his uncle arranged an agent in [2018] to get him a passport and visa to come to Australia. As raised with the applicant, he already had a passport issued in [2017]. He provided a photocopy of this passport to the Department and said in his visa application this was the passport used to depart Pakistan. The applicant said the agent arranged this passport in [2018] and if it says it was issued in [2017] the agent must have somehow changed the dates in it. He also produced his current passport issued in 2023 and said he applied for that online with the Pakistani authorities on the basis of his first passport. I asked the applicant to reflect after the first hearing about how and why he got his first passport in [2017].
The applicant’s brother in his support letter dated 11 September 2024 raises the issue of the passport. The brother says their uncle got the applicant a new passport in Islamabad when arranging the student visa for him. The brother says he found out the applicant’s passport was cancelled and a new one issued to show Islamabad as his place of birth to avoid any conflict with government records. The brother’s knowledge of the applicant’s passport is based only on what the applicant told him. There is nothing to suggest the applicant’s first passport issued in 2017 was cancelled and a new one issued in [2018]. I give this evidence from the brother regarding the passport no weight.
At the second hearing the applicant again denied getting a passport in [2017] and maintained the claim that he only got a passport in [2018] when the agent organised it for him. He maintains the agent must have altered the dates on the passport. As put to the applicant, I do not accept the agent has done so. There is nothing on the face of his first or second passport to indicate either are fraudulent documents. I do not accept the Pakistani authorities would have issued his second passport if on viewing his application they discovered his first passport had been altered. The information before me indicates the applicant departed Pakistan and arrived in Australia using his passport issued in [2017]. That the applicant applied for a passport prior to [Month] 2017 suggests he was already planning to depart Pakistan. I do not accept he got a passport in [2018] because of alleged threats from June 2017 onwards. I consider this false narrative about getting a passport in [2018] was created to support the claims to have been threatened and nearly kidnapped.
I do not accept the applicant was the victim of an attempted kidnapping as I find his account is not credible. He says he was walking down an ally at a Bazaar when he saw two men walking towards him. Because they were dressed like Taliban he believed they were coming for him. He says he ran to a restaurant where the manager hid him for some hours in the back. I consider the account is not credible. If people were looking for him I would expect they would wait for him at his work, or at home, and would be following him rather than walking towards him by chance in an alley. It is not plausible they would have known he would be walking down that alley at that time. If they were close enough for him to perceive they were interested in him, I do not accept they could not have chased him when he ran, or entered the restaurant he went into, or waited for him to come out. I consider this incident did not occur. His decision to go to Peshawar to avoid the Taliban also does not seem likely. Peshawar, being near the border with Afghanistan, is a known area where the Taliban operate. If he went to Peshawar I consider he was more likely visiting relatives there before coming to Australia than fleeing to avoid the Taliban.
The applicant says he told his manager about the threatening calls, and was told to ignore them. However, the applicant had a brother who claims to have received threats from the Taliban and took those threats so seriously that he left and ravelled to Australia by boat. I do not accept the applicant, if he received threatening calls from people he believed were the Taliban, would have ignored them and continued working on the polio vaccination team as he claims. I consider the claim to have received threatening calls is an exaggeration. In making this finding I also rely on my findings about his passport and his reluctance to admit the claim he only got a passport in [2018] was not true.
The applicant says he wanted to do the polio vaccine work, even knowing the dangers, because of the importance of service. He does not claim he would return to such work. He does not claim that he would return to work at the medical centre. The applicant has qualifications in [Subject] in Pakistan and in Australia has worked in [work sector 1], as [an occupation 2], and now runs his own business as the holder of a [franchise]. He has not sought to work in health care or gain qualifications in health care in Australia. He has not been involved in any voluntary or service work in Australia. Taking into the applicant’s work history and qualifications, I do not accept he will once again take part in a polio vaccination program if he returns to Pakistan. When he did that work in the past it was because his neighbour got him work at the local medical centre when he was a student, and as part of that job he occasionally worked in the polio vaccination team because his employer placed him there. I do not accept he has a calling or desire to seek out such work in the future or that he would return to working in the medical centre.

The applicant provided a number of articles reporting on the killing and targeting of polio vaccination workers in Pakistan. DFAT reports the Taliban and Islamic State regularly carry out attacks on polio vaccination workers, and promote conspiracy theories such as claiming the health campaigns are a Western plot to sterilise or otherwise harm Muslims. Between 2012 and 2016 more than 100 people were killed in attacks on vaccination workers. By 2020 attacks were less frequent but there was an uptick in 2021 in Khyber Pakhtunkhwa. DFAT assesses polio vaccination workers face a moderate risk of violence and societal harassment because of their work.[1]
[1] DFAT, Country Information Report Pakistan, 25 January 2022.
The articles provided by the applicant largely reported on the targeting of polio vaccination workers in Khyber Pakhtunkhwa and Balochistan.[2] An article reporting on killings of polio workers from 2012 to 2021 reported the following attacks in Karachi: three incidents in 2012 with 5 deaths; one incident in 2013 with no deaths; one incident in 2014 with one death; one incident in 2015 where a female worker was threatened; and one incident in 2016 where seven police were killed.[3] I am not aware of reports of polio vaccination workers in Karachi being harmed since 2016.
[2] DFAT, Country Information Report Pakistan, 25 January 2022; AP News, Pakistani Taliban claims responsibility for bomb that killed 6 police guarding anti-polio campaign, 8 January 2024; The New York Times, Pakistan’s War on Polio Falters Amid Attacks on Health Workers and Mistrust, 29 April 2019; The Lancet, Polio vaccination controversy in Pakistan, 14 September 2019; Safeguarding Health in Conflict Coalition, Insecurity Insight, Ignoring red lines: Violence Against Health Care in Conflict 2022, 01 June 2023.
[3] Asia Pacific Journal of Public Health, The History and Current Killings of Polio Vaccinators in Pakistan: A Need for Targeted Surveillance Strategy, Vol 35 (2-3) 2023.
I accept there is a history of polio vaccination workers being targeted for harm and even killed in Pakistan. However the applicant has not done this work since 2017 and I do not accept he would do so in the future. There have been some past attacks on polio vaccination workers in Karachi, but none have been reported recently. The country information indicates polio vaccination workers in areas such as Khyber Pakhtunkhwa are more likely to be targeted. There is no evidence anyone on the applicant’s polio vaccination team or anyone associated with the medical centre where he worked were harmed by extremists who target vaccination and health care workers, either when the applicant was in Pakistan or since he has left. I consider the chance of extremists who target polio vaccination workers having an interest in the an ex-polio vaccination team member from 7 years ago is farfetched and too remote to amount to a real chance. I find the applicant does not face a real chance of harm for working occasionally in a polio vaccination team in Karachi more than 7 years ago.
The applicant also claimed patients at the medical centre commented on him working with women, and the alleged threat calls from the Taliban raised this issue. There would have been a number of men working at the medical centre also working with women, as there are in any number of work places across Pakistan, particularly in a large city like Karachi. He has not provided evidence of anyone at the medical centre being harmed for working alongside female staff. I do not accept the applicant was targeted for this reason, and I consider it farfetched that anyone would have an interest in him if he returns to Pakistan in the reasonably foreseeable future for having worked in a workplace where there were also female staff. I find he does not face a real chance of harm for having worked in a mixed-sex workplace.
Family link to ANP and brother
The applicant claims he will be targeted for harm because members of his family were involved with the ANP and he will be imputed as a supporter of the ANP.
The ANP is a secular Pashtun nationalist political party that has strong support in Khyber Pakhtunkhwa and Balochistan. The ANP governed Khyber Pakhtunkhwa between 2008 and 2013 and was a junior partner in the federal coalition government. DFAT reports the Taliban have attacked ANP members because of the party’s support for the military and anti-Taliban stance. In July 2018 there was a suicide bomb attack at an election rally in Peshawar, killing at least 20 people including a prominent ANP politician. DFAT assessed in 2022 that ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the Taliban. The risk is higher for ANP leaders.[4]
[4] DFAT, Country Information Report Pakistan, 25 January 2022.
The applicant’s brother provided a written statement in which he said he joined the ANP at a young age, following the footsteps on their father and grandfather. He says their family have been long-time supporters of the ANP and that made them a target. The brother says he served as a [position] of unit [Number] in Karachi, attending major party meetings, working on elections, and coordinating daily with the provincial office. In January 2013 he started receiving threatening calls from people he believed to be in the Taliban. In February 2013 two armed men attempted to abduct him in a market but he escaped. He left Pakistan and arrived in Australia by boat in 2013. He was subsequently granted protection.
The applicant confirmed at the hearing that he is neither a leader nor a member of the ANP. There is no suggestion he will join the ANP if he returns to Pakistan. He was not harmed in the past when he says his grandfather and father were involved in the ANP. He was not harmed when his older brother was an active member of the ANP. No member of the applicant’s family, including the applicant, were harmed during 2013 when his brother says he was under threat from the Taliban or since 2013 when his brother left Pakistan.
Taking into account the applicant’s lack of political profile and non-involvement in political activity, and lack of past harm suffered by him or his remaining family members in Pakistan for political reasons, I find the chance of anyone targeting the applicant for reason of his father, grandfather or older brother being in involved in the past in the ANP is too remote to amount to a real chance. I acknowledge the country information that ANP leaders are targeted by the Taliban, and ANP members have been harmed in attacks on political rallies such as in Peshawar in 2018. I consider it farfetched however that the applicant would be targeted as someone who may be imputed to support the ANP because his family were active in the party in the past.
I find the applicant does not face a real chance of harm because of having family members who were involved in the ANP in the past or for any imputed political opinion.
Pashtun ethnicity
I accept the applicant is Pashtun based on his fluency of the Pashto language, the consistency of this claim, and no evidence to suggest he is of a different ethnicity.
The applicant claims Pashtuns are racially profiled and targeted by the Pakistani authorities. He says Pashtun youths are often accused of being terrorists and killed in fake police encounters. He raises the case of a Pashtun activist and poet Gilaman Wazir who was killed in July 2024.
Pashtuns are the second largest ethnic group in Pakistan and originate from the northwest of the country. There are an estimated 20-25 million Pashtuns in Pakistan with the largest Pashtun community in the world living in Karachi. They are represented at all levels of society, dominate employment in the transport sector, and are well represented in the security forces.[5]
[5] DFAT, Country Information Report Pakistan, 25 January 2022.
DFAT reports that ethnic stereotyping and the association of Pashtuns with the Pakistani Taliban 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 Pashtun. DFAT also says Pashtuns face low-level societal discrimination in areas where they are the minority. DFAT assesses Pashtuns in conflict-affected areas such as Khyber-Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearances and extrajudicial killings. However the risk is low for Pashtuns living elsewhere in Pakistan unless they are involved with the Pashtun Tahafuz Movement (PTM) or ANP.[6] The applicant is not involved in either, and I do not accept his family member’s past links amount to him being associated with the ANP any more than other ordinary Pashtuns.
[6] DFAT, Country Information Report Pakistan, 25 January 2022.
The applicant refers to the death of Gilaman Wazir as an example of the targeting of Pashtuns. Wazir was a prominent figure in the PTM and was also a vocal opponent of the Pakistani Taliban. He was killed in an attack by armed men in Islamabad in July 2024. His death raised fears for other prominent Pashtun activists from both the state and groups such as the Taliban.[7] Other PTM leaders have been arrested, detained, and charged by security agencies in response to their protests and speeches. It’s founder Manzoor Pashteen was first arrested in October 2022 on charges of terrorism, and then arrested again in December 2023. PTM members protesting his arrest were reportedly detained.[8]
[7] The New Humanitarian, In Pakistan a poet’s killing fuels Pashtun fears ahead of a new security crackdown, 24 July 2024.
[8] ACCORD, Pakistan: COI Compilation, April 2024.
The applicant is not a member of the PTM or otherwise involved in Pashtun activism. I acknowledge the reporting of Pashtuns being racially profiled and disappearances in Pakistan, however as DFAT reports, this is more prevalent in conflict-affected areas such as Khyber-Pakhtunkhwa and Balochistan. The types of violence reported in Karachi involves the targeting of police, security forces, Shias, politicians, and militants.[9] Karachi is the largest Pashtun population in the world. I am not satisfied the applicant has a profile beyond that of one of the millions of non-politically active Pashtuns living in Karachi. I find the chance of the applicant facing harm for reason of his ethnicity in Karachi is too remote to amount to a real chance.
Returning from a western country
[9] Office of the Commissioner General for Refugees and Stateless Persons, COI Focus Pakistan Security Situation, 25 May 2024.
The applicant claims he will be labelled as a spy for the West and anti-Islam for returning after seeking protection in Australia. He says the Taliban are active in Karachi and will know he has returned. His brother repeats these claims in his supporting statement dated 11 September 2024, and says his brother and their family members will be in immediate danger if he returns. However, the applicant gave evidence that the brother himself returned to Karachi Pakistan for family reasons in December 2023 and the brother did not face harm on that visit, nor were there consequences for the family.
DFAT reports that genuine returnees with valid documentation are typically processed at the airport like any other citizen returning to Pakistan and are unlikely to attract attention from the authorities. A genuine returnee is defined as someone who left Pakistan legally, which the applicant did. Immigration officials can interview failed returnees who are returned involuntarily, but typically release them within a few hours if they left Pakistan on valid travel documents and are not wanted for any past crimes in Pakistan.[10]
[10] DFAT, Country Information Report Pakistan, 25 January 2022.
The applicant applied from Australia to renew his Pakistani passport and was granted a new passport, valid to 2033. I do not accept the authorities had any concerns about his residence in Australia. DFAT says Pakistanis who return with valid travel documents pass through immigration like any other citizen. DFAT also says returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate or purely because they have lived in a Western country.[11]
[11] DFAT, Country Information Report Pakistan, 25 January 2022.
Over 6 million Pakistanis live outside of Pakistan, with significant numbers living in Western countries such as the UK and USA. Wealthy Pakistani families commonly send their children to Western countries for education, and English is one of the two official languages in Pakistan.[12] The applicant is returning to a large urban centre in Karachi and I consider he will be indistinguishable from the many Pakistanis who travel in and out of the country from the West. I do not accept he has a profile for reason of his ethnicity or past work in the polio vaccination program. I do not accept that as an ordinary Pakistani returning to Karachi he will stand out as someone who spent time in a Western country or that he will be perceived as a spy for anti-Islam for having done so, even taking into account his past polio vaccination work and that he applied for a protection visa. I find the applicant does not face a real chance of harm for reason of spending time in Australia and returning from a Western country after seeking asylum.
Identity documents
[12] DFAT, Country Information Report Pakistan, 20 February 2019.
The applicant claims he may lack identity documents if he is returned to Pakistan because of the government’s directive to stop issuing passports to Pakistanis who seek asylum abroad. He also claims they may block his national identity card. He claims that without identity documents he would likely be used as a human shield by the militants or government authorities.
On 5 June 2024 the Office of the Directorate General Immigration and Passports within the Interior Ministry issued a circular to order a ban on issuing passports to Pakistanis who have sought asylum or have already obtained asylum in foreign countries. It is not clear how they would determine who has sought or obtained asylum, as such information is not shared with Pakistan by the Australian or other western governments. Whilst the applicant claims the government also intended to block identity cards, the directive makes no mention of this.
In any event this directive was challenged in the Supreme Court[13] and quickly withdrawn by the authorities after a high level meeting chaired by the Deputy Prime Minister and Foreign Minister Mohammad Ishaq Dar. On 22 July 2024 local media reported the government lifted the ban.[14] There is nothing before me to indicate such a ban is in place. The applicant submits it is not unlikely the ban could again be formulated into policy, however I consider this is speculative.
[13] Pakistan Today, ‘SC petitioned against ban on passport issuance to asylum seekers abroad’, 25 June 2024; The Friday Times, ‘Govt's Decision To Stop Issuing Passports To Asylum Seekers Challenged’, 25 June 2024.
[14] Express Tribune, ‘Government withdraws ban on issuing passports to asylum seekers’, 22 July 2024; Geo News, ‘Pakistan withdraws ban on passports for asylum seekers abroad’, 22 July 2024; Pakistan Today, ‘Govt withdraws order to ban passports of asylum seekers’, 22 July 2024.
I acknowledge a directive was issued in June to ban the issuance of passports for those seeking asylum abroad, but that directive was quickly reversed and there is no such ban in place. The applicant holds a current Pakistani passport, valid until 2033. On the information before me I do not accept his passport would be cancelled or that he would be refused a national identity card or have any card he currently may hold blocked.
I do not accept the applicant would be without valid identity documents in Pakistan. It follows I find he does not face a real chance of harm as someone without identity documents.
Cumulative assessment
The applicant claims the Taliban or other extremist groups will target him because of the combined factors in his case including his ethnicity, work on the polio vaccination team, working with women, his family’s background with the ANP, his brother seeking asylum in Australia, a brother in the military, and returning from a Western country.
Most of these factors existed prior to the applicant departing Pakistan, with the only addition being his time spent in a Western country. His mother, brothers and sister[15] in Pakistan also share many of these characteristics and there is no evidence they have been targeted and harmed for being related to people with strong links in the past to the ANP or having a brother/son in the [military] and/or in Australia. When this was put to the applicant he said they have been careful with the [brother] in Pakistan and have sent him away to [Country]. When asked for further information he said his brother went to [Country] about 18 months to 2 years ago but since then has been in Karachi. I note also his brother in Australia returned to Pakistan in December 2023 without incident. I have considered his claims cumulatively but I do not accept even cumulatively they give the applicant a profile of adverse interest to the Taliban, any other extremist group, or the Pakistani authorities.
[15] I note the applicant said at hearing his sister married and moved to [Country] a year ago, but there is no evidence she suffered harm prior to leaving Pakistan in 2023.
I do not accept the applicant or any of his family in Pakistan have been harmed or targeted for harm because of these cumulative characteristics. I find he does not face a real chance of harm if he returns to Pakistan in the reasonably foreseeable future for reason of his ethnicity, past work in a polio vaccination team, working with women, his family’s background with the ANP, his brother seeking asylum in Australia, a brother in the [military], and returning from a Western country.
For these reasons I find the applicant does not face a real chance of harm in Karachi. It follows I find he does not have a well-founded fear of persecution in Pakistan and does not meet the definition of refugee in s 5H.
Does the applicant satisfy the complementary protection criterion for protection?
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).
For the applicant to meet the complementary protection criterion I must be satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk he will suffer significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
I have found the applicant does not face a real chance of harm for reason of his ethnicity, past work in a polio vaccination team, working with women, his family’s background with the ANP, his brother seeking asylum in Australia, a brother in the military, and returning from a Western country, whether these matters are considered singularly or cumulatively. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the same reasons given above, I find there is a not a real risk the applicant will suffer significant harm for the reason claimed, whether they are considered singularly or cumulatively.
I find there are not substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk he will suffer significant harm.
Conclusion

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 under review.
Date of hearing:  15 August 2024, 12 September 2024
Representative for the Applicant:            Mr Jia (Jack) Li
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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