2001227 (Refugee)

2001227 (Refugee) [2023] AATA 4761 (8 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Libby Hogarth (MARN: 9364758)
CASE NUMBER:  2001227
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Mark O'Loughlin
DATE:8 November 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 November 2023 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – race – Pashtun – religion – Sunni – imputed political opinion – supporter of girls’ education – particular social group – former volunteer for NGO – married to Shia woman – threats of harm by Taliban – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 5K, 5L, 5LA, 36, 65, 499
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

On 21 January 2020, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.
The applicant applied for the visa on 23 October 2015. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant has sufficient profile with the Taliban in Pakistan to be at risk of being a target of theirs if he returns and is not therefore owed protection by Australia.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 11 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A].
The Tribunal was assisted by an interpreter in the Urdu language.
CRITERIA FOR A PROTECTION VISA
The relevant 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 must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed, the applicant must satisfy s36(2)(a)- the “refugee criterion”, or s36(2)(aa)- the “complementary protection” criterion.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
Background
The following non-controversial facts are taken from the applicant’s various statements and submissions, the departmental file and the evidence given to the Tribunal.
The applicant was born on [date] in Pakistan.
He was raised on a farm near [Village 1] in Hungu, a district of the province of Khyber Pakhtunkhwa in northern Pakistan. The applicant said in his evidence that is about [number] hours by road from the border with Afghanistan.
He said the family was very poor and it was difficult for them to get by.
He went to school until 2008 and after that he worked as a volunteer for [Foundation 1] performing general duties working on [social projects].
He was given groceries in return for this work, but hoped to be elevated to a paid position. At the time he came to Australia there was no suggestion he would get a paid position. He resigned from the work shortly before he was married.
He had been engaged to his cousin [Ms B] on 6 January 2011 and married her just before he came to Australia on [date] June 2013.
The marriage had been arranged by his family.
He gave evidence that the family had decided they would marry when they were about 14 or 15 years old.
She had moved to Australia with her family in about 2007 or 2008 when he was about [age].
He described the engagement in 2011 as effectively being a marriage, but pursuant to Pashtun tradition he and his wife did not start to live together immediately.
She had come from Australia for the engagement and returned afterwards. She went back to Australia telling him she would arrange for a visa for him, then return to participate in a ceremony called the rukhsati, after which they could return to Australia together.
[Ms B] contacted the applicant from Australia to tell him to attend for medical examinations and to sign documents for his visa. He did so and about 2 weeks before the rukhsati ceremony he left the volunteer job. The rukhsati ceremony was about a week before he came to Australia on [date] June 2013.
The marriage failed and he left [Ms B] on about 14 July 2014.
It failed because his uncle, [Ms B]’s father, wanted money before he would allow the application for permanent residency to be completed.
The applicant applied for the subject protection visa on 23 October 2015 by which time he had retained a migration agent to help him.
The applicant remarried on 20 December 2021 having met his now wife who was working at a restaurant he used to frequent.
They married about 3 or 4 months after they met, and about a month after they first discussed marriage.
His wife is a permanent resident of Australia.
Claims
The applicant first set out his claims in a statutory declaration dated 16 October 2015 attached to his PVA.
In that statement he claims he cannot return to Pakistan because he fears he will be killed by the Taliban because of an imputed political opinion and because of his membership of a particular social group.
Although he does not expressly say what political opinion will be imputed to him or of which relevant social group he is a member, he refers to his work as a volunteer for the [local welfare organisation, Organisation 1] under the direction of the manager/general secretary [Mr C][1].
[1] Statutory Declaration applicant 16/10/2015 par. 10 – 12.
He says at paragraph 14 the organisation has been warned by the Taliban not to assist girls’ schools, although he does not say when that happened.
He says [Mr C] started to receive threatening letters from the Taliban in about 2012[2]. He says [Mr C] was murdered by the Taliban about a year before he signed the declaration in mid October 2015.
[2] Ibid par. 15.
He said some of the other volunteers have since been killed as well, one of whom had received more than 10 warnings about his work with [Organisation 1].
At paragraph 18 he said he received a written warning from the Taliban about a month after he moved to Australia. He says the letter says the Taliban believes the NGO have sponsored him to go to another country and that he is working and training in another country.
He says he had not told anyone, including his ex wife, about the letter when he got it because he was worried what people would think about him.
He says the Pakistani authorities would not be able to protect him against the Taliban who are too powerful[3]. He also says he could not relocate because nowhere is safe against the Taliban and in any event, he does not know how he would survive outside his home area as he would have no family support.
[3] Ibid par. 23.
In the Departmental interview on 29 May 2019 he said he had separated from his first wife [Ms B] when he became eligible to apply for a permanent visa. His father in law told him he had to pay $30,000.00. The applicant was not able to pay so [Ms B] withdrew her sponsorship and advised the department the marriage had failed.
In response to questions put to him he says [Organisation 1] and [Foundation 1] are the same organisation.
He said that none of the people who had worked with him as volunteers are still alive.
He said that [Mr C] was killed while the applicant was still in [Village 1]. He said that was in 2012.
The applicant was referred to a document that appeared to be [Mr C]’s death certificate. That certificate says [Mr C] died on 6 December 2014.
The interviewer pointed out that the applicant was in Australia by that time. The applicant said the date was from when the certificate was prepared and that [Mr C] died while the applicant was still in Pakistan. He said he was told about [Mr C]’s killing by people in the village.
When the dates of the death and burial were put to him, he first insisted the date reflected the date of the preparation of the certificate. He then said he was in Australia when [Mr C] died but he was depressed.
When he was asked why he could not return to Pakistan he said because of the threat from the Taliban and because he is the source of financial support for his family. He said he also wants to study.
He said he could not relocate within Pakistan to escape the risk because of the Taliban’s connections in every city. He also referred to generalised violence.
In a further statutory declaration of 26 April 2023, prepared in anticipation of the Tribunal hearing, he said that when he came to Australia “..it was to enter into a relationship with my cousin, the daughter of my father’s younger brother.”
Submissions of 24 April 2023 purport to identify the applicant’s claims for the purposes of this review[4].
[4] Submissions by Australian Migration Options Pty Ltd. Dated 24 April 2023 prepared by Elizabeth Thompson on 23 April 2023 and signed by Libby Hogarth.
In addition to the claims set out in the PVA, at paragraph 4.3 of the submissions, the applicant seeks to add new claims that he fears harm if he were to return to Pakistan because of his marriage to a Shia woman and because of the ongoing enmity of his paternal uncle.
The submissions say at paragraph 4.5:-
“The essential and significant reason the Applicant claims a well founded fear of persecution in Pakistan is because of his involvement with welfare organisations in his home area of [Village 1] in Hangu, his race and religion as a Pashtun Sunni and his time in Australia. The Applicant also fears persecution and serious harm as a result of his status as a returnee to Pakistan in the context of his other characteristics.”
The submissions say the applicant is at a real risk from Islamic State and other extremist militant groups that are difficult to identify.
At paragraph 4.10 the submissions say those threats arise because of the applicant’s race, his wife’s religion, and his volunteer work.
The submissions also say he faces arbitrary deprivation of life by Pakistani authorities, harassment, and cruel and inhuman treatment by Pakistani authorities because he is a returnee.
At this point the Tribunal observes that when he gave his evidence the applicant did not support some of these claims. He said he did not know anything about Islamic State. When he was asked about fear of the Pakistan authorities he did not express any such fear and said his main fears are of the Taliban and of his uncle.
He said there can be tension between Sunni and Shia Muslims but did not identify any risk from having married a Shia woman, other than that arising from his uncle.
It was evident that the written submissions went much further than that, but were not supported by the applicant.
The Tribunal indicated that it would deal with the claims as made by the applicant in his evidence and invited the applicant’s representative to make a further submission if they believed that to be inadequate. No further submission was made.
Documentary Evidence
The applicant provided some documents in support of the claim. Those documents are referred to in the body of the decision.
Evidence before the Tribunal
The applicant told the Tribunal that after school he was not old enough to get labouring work and he did not have enough education to be qualified for anything else. Therefore, he started working as a volunteer, which was not paid but for which he did receive provisions that his family could use.
He said he stopped working for the volunteer organisation about two weeks before he came to Australia.
The Tribunal asked what made him decide to come to Australia. He said his only wish was to live with [Ms B], his wife. He said they had discussed where they would live and decided to come to Australia because she said life was better in Australia.
He had seen Australia when watching cricket and really liked it, so he was happy to move. After they performed the first part of the marriage in January 2011, he understood he would be living in Australia at some point.
He explained that the marriage took place in two parts, as is the custom. Their plan was his wife would return to Australia after the first part of the marriage in January 2011 and she would arrange for his visa. When the visa was granted, she would return to Pakistan, they would complete the marriage, and he would go back to Australia with her.
He said those arrangements were not finalised until after the first part of the marriage had taken place. He said she went back to Australia and he spoke to her from time to time. She said they would have a good life and a car and would be happy.
The applicant said it was [Ms B]’s choice that they come to Australia, not his, but he was happy with the decision.
The Tribunal asked him about the death of [Mr C]. He said he had not been understood during the departmental interview.
He said he found out the Taliban were after him in 2015 when a letter came to his family home in Pakistan. He said the letter stated he is supporting girls’ education which is forbidden, that the money for the charity was coming from wrong countries and that he should stop.
He said the letter said “we have killed a member of your organisation and if you do not stop we will kill you.”
He agreed that the letter he meant was the letter of 6 January 2015, one of the documents he had provided to the Department.
The Tribunal noted that the certified translation of the letter said that the Taliban is looking for the addressee’s son who works for an organisation which is being supported by America and the Jews.
There is no address on the letter, so it is not clear that it refers to the applicant. The applicant said his family received it and he is sure it is referring to him.
The Tribunal observed that by January 2015 the applicant was no longer working for the organisation. The applicant said the translation is wrong and should be an accusation that he used to work for the organisation.
The applicant said [Mr C] had received a letter from the Taliban in 2012. He said the letter warned him that the organisation was working for people for whom it was forbidden to work and that if they did not stop the Taliban would bring harm on them.
The applicant said he did not have a copy of that letter, but that [Mr C] had warned the workers by sending them a message.
The Tribunal asked if he meant the message from [Mr C] dated 6 October 2014 that is on the file. The applicant agreed that is what he was talking about.
The Tribunal noted that the message of 6 October 2014 did not refer to any warning from 2012 and seemed to refer to a deterioration in the situation in October 2014.
The applicant then gave evidence that [Mr C] had received a separate warning in 2012. He said [Mr C] had told them about that threat, which said if they continued their charity work the Taliban would bring harm on them. The applicant said [Mr C] told them about this threat in a meeting.
The applicant’s evidence on this matter was inconsistent and unconvincing. He insisted the warnings came in 2012, before he had left Pakistan. When it was clear his documents did not support that evidence he claimed, for the first time, that there had been an earlier set of threats from the Taliban.
The applicant insisted that at the time he got the threats (in 2012 when they were allegedly communicated to him orally by [Mr C]) he had not already decided to come to Australia to live with his wife after they married.
When it was put to him that the application for a partner visa was apparently lodged on 26 March 2012 (according to the delegate’s decision) the applicant said he had no idea when the application was lodged and no idea when he would be going to Australia.
The Tribunal is not satisfied by the applicant’s evidence that he had received or was aware of any threats from the Taliban at the time he came to Australia. That evidence appears to have been invented to support the subject application.
The applicant said his marriage to [Ms B] lasted until about 14 July 2014, about 13 months after he got to Australia.
He said when he got a notification that he was eligible to apply for permanent residency, his father-in-law asked him for $40,000.00. He did not have any money. He does not know what his in-laws did, but the Department cancelled his partner visa.
The applicant agreed that his father-in-law was also his uncle and knew his family well. He agreed that his father-in-law knew that his family was poor. He could not say why his father-in-law would think the applicant could pay $40,000.00.
He told the Tribunal that after his visa was cancelled, he applied for a bridging visa. He was not sure what substantive visa application had been made.
The Tribunal observed that the delegate records that on 19 June 2015 the applicant’s partner visa was referred to Centrelink for a non-judicial Domestic Violence claim. The applicant said he did not know what application had been made but that he had retained a migration agent by June 2015 and possibly the agent applied on his behalf.
The applicant said that by June 2015 he had received a copy of the letter the Taliban had sent his family dated 6 January 2015.
The Tribunal asked why, in that event, the next dealing with the Department was to complain about domestic violence by his ex-wife and her family, rather than seeking protection from the Taliban.
The applicant said he did not know. He said he had told his former agent about his fear of the Taliban when he was applying for the bridging visa. He could not remember when that was.
The Tribunal said there was no evidence to suggest he had told anyone about his fear of the Taliban until about the middle of 2015.
The applicant agreed that may be the case. The Tribunal asked why he had waited for so long before raising his fears.
He said he did not feel comfortable telling people because it was not a good feeling.
He then said he could not remember when he first mentioned the fear of the Taliban because he was suffering from depression.
The applicant said he had seen a doctor and got some medication for his depression and it did not cause problems in him giving evidence.
The Tribunal noted that there is no evidence of the applicant telling anyone that he needs protection from the Taliban until about 2 ½ years after he arrived in Australia. The Tribunal said that might suggest that he had manufactured the fear of the Taliban after the failure of his partner visa application.
The applicant said that until that application failed there was no reason to tell anyone. He said he did not have a reason to tell anyone until his visa was cancelled.
He had said in the statutory declaration of 16 October 2015 he had not told his ex-wife or anyone else about the letter because he was worried about what people would think about him.

100. He could not explain why a threat from the Taliban would make people think less of him.
101. The applicant’s evidence on this topic was evasive and unconvincing.
102. The Tribunal is not satisfied that the applicant’s evidence about being threatened by the Taliban is genuine.
103. The Tribunal is not satisfied that the supposed written threat from the Taliban of 6 January 2015 is genuine.
104. The Tribunal asked the applicant about the charitable organisation for which the applicant had worked in Pakistan. He said it was an NGO that supported [Foundation 1]. He said the Taliban had threatened their employees and the organisation does not exist any more.
105. He said after [Mr C] was killed the organisation disbanded.
106. He believes the Taliban would still be after him even though they had achieved their aim of shutting the NGO down. He said they would want to kill everyone who had worked for the NGO.
107. The applicant said his father had been taken by the Taliban two or three times since the letter of 2015 but had told them he does not know where the applicant is.
108. The Tribunal is not satisfied that the letter of 2015 is genuine. The Tribunal is not satisfied the applicant’s evidence about his father being kidnapped and questioned is true for much the same reasons. The Tribunal is not satisfied that the Taliban would have any ongoing interest in the applicant.
109. The Tribunal asked about the applicant’s second marriage in December 2021.
110. The applicant said he met his new wife at a restaurant he used to go to. They had things in common including language and became friends.
111. He said she is a permanent resident but denied that was a motivation to marry her, because they did not discuss her visa situation until after they had decided to marry.
112. He gave evidence that he does not know if she was a permanent resident when he met her. He said she will not return to Pakistan with him if the subject application is not successful, because she applied for asylum and fears for herself in Pakistan.
113. The Tribunal noted that he is now claiming that, because she is a Shia, their relationship would make his return to Pakistan more of a risk to him even if she did not go with him.
114. The Tribunal noted that he had met and married his wife very quickly and noted that that suggests he may have been doing it to strengthen his protection visa application. He denied that.
115. The applicant said that they spent about 4 months before they decided to marry.
116. The Tribunal observed that he had said he met her 3 or 4 months before they got married and they decided to get married about a month before they did marry.
117. The applicant then agreed that they had decided to marry within 2 to 3 months of meeting.
118. The Tribunal asked whether the main risk arising from the marriage is because his new wife is Shia. He said that is a problem in Pakistan but not in Australia.
119. He said his uncle who lives here in Australia has told the family in Pakistan that he has married a Shia woman.
120. He said he believes his uncle is a danger to him.
121. He believes that both because of his marriage to a Shia woman and because his uncle still harbours a grudge against him because of his failed marriage to [Ms B].
122. The Tribunal heard evidence from the applicant’s wife. She said she had been in Australia since the end of 2019 and she got her protection visa after about a year. She could not provide much detail about it because her brother arranged it.
123. She said she had a bridging visa at the time she met the applicant but got permanent residency fairly soon after and told the applicant about it as soon as it came through.
124. She said they had already decided to marry by the time her permanent residency came through. She said she did not know what his visa status was although she knew he was on a bridging visa.
125. She said after they were married, they had a discussion and she told her he had a protection visa application in.
126. She said she did not believe there was any risk of him having to go back because he has been here for so long.
127. She said in any event, she would not return to Pakistan with him if he fails in his application. She said she already has protection and will not go back.
128. She said there may be a risk to him arising from his marriage to her if he has to go back. She said some people would be opposed to him having married her. They may even take his life.
129. She said she did not believe he married her to strengthen his visa application because she proposed to him and at the time he accepted, she was on a bridging visa.
130. She agreed that by the time they married she did have permanent residency, but did not believe that was a factor. She acknowledged that their marriage may have strengthened his visa application but she does not think it was a motivation.
Other Evidence
131. The submissions of 24 April 2023 included over 800 pages of attachments.
132. The attachments include birth certificates for the applicant and his siblings, various identity documents for the applicant and his father, documents showing the applicant to have been a [occupation] for [Foundation 1] from 2012, the applicant’s Australian marriage certificate, the grant of a protection visa to the applicant’s wife [Ms A] on 25 August 2021 and her statement of claims, some school documents relating to the applicant, further copies of the alleged communications from and about the Taliban, copies of various authorities referred to in the submissions, a copy of the relevant DFAT report, and various items of country information including various newspaper articles.
Applicant’s Country Information
133. Attachment 15 to the submissions is an article from The Australian dated 6 January 2013 about the shooting of two charity workers by unknown gunmen and referring to an earlier attack in which seven charity workers had been shot dead. The article suggests the shootings were the work of the Taliban. The applicant’s submissions, at 7.1.1 ask the Tribunal to take the article into account in considering the applicant’s position as a volunteer.
134. The Tribunal is satisfied that there have been attacks on workers associated with charities including [Foundation 1]. The article is more than 10 years old and does not greatly assist the Tribunal in assessing the current situation. Further, it does not assist the Tribunal in assessing risk to former volunteers like the applicant.
135. Attachment 16 is a report from CBS News from 22 September 2012 about a string of riots in Pakistan in reaction to an anti-Muslim film.
136. At 7.1.3 the submissions note that there were virulent public protests in 2012 targeting “Jewish” interests. At 7.1.5 the submissions say the article confirms the targeting of western embassies and restaurants in Pakistan in 2012.
137. The Tribunal is satisfied that extremists in Pakistan have targeted what they perceive to be western or Jewish interests and understands that this situation may be ongoing. This observation must be tempered by the fact that the applicant stopped working for [Foundation 1] 10 years ago.
138. At 7.1.4 the submissions refer to an article from 2003 suggesting that there was opposition to opposition to western fast-food outlets. This is not obviously relevant to the application.
139. At 7.1.6 the submissions refer to a US Department of State report from 2023[5]. The submissions extract a single paragraph from but do not identify where it appears in the 87 page document.
[5] US Department of State “2022 Country Report on Human Rights”
140. The Tribunal relies on the submissions and the extract contained therein and is satisfied that derogatory terms such as “Jewish agent” are used against individuals or groups on social media.
141. This is of little assistance to the Tribunal in considering this application. It does not suggest the applicant will be subjected to relevant harm.
142. At 7.1.7 the submissions refer to the relevant DFAT report[6]. The submissions refer to difficulties faced by Pashtuns in some parts of Pakistan. The Tribunal accepts the applicant’s own evidence that he does not hold fears related to his Pashtun ethnicity.
[6] DFAT Country Information Report Pakistan 25 July 2022.
143. At 7.1.8 and 7.1.9 the submissions assert that the Tribunal should not have regard to the length of time the applicant has been absent from Pakistan because the Pashtun community have a “very different concept of time and its relevance to conflict…”
144. The submissions refer to attachment 20 to the submissions[7]. The Tribunal notes that the part of the document referred to, 4.2 of the document, relates to blood feuds and the taking of revenge. It is not apparently relevant to this application. There is no suggestion the applicant is embroiled in a blood feud.
[7] Landinfo, Nov. 2011 “Afghanistan: Blood feuds, traditional law and traditional conflict resolution”.
145. The submissions again refer to the DFAT report and say that there is ongoing risk of harm to NGO workers.
146. The Tribunal again observes that the applicant is not an NGO worker and has not so been for over a decade.
147. At 7.2.2, in the section about the risk to the applicant as a Sunni Pashtun man married to a Shia woman, the applicant refers to attachment 21 to the submissions[8]. The submissions extract some quotes from various academics and commentators[9]. Those quotes contemplate a wide range of responses to marriages between Sunni and Shia. The article does not purport to draw a conclusion that is helpful to the Tribunal.
[8] Immigration and Refugee Board of Canada : Pakistan: Treatment of persons in mixed Sunni-Shia marriages.” 31 December 2018.
[9] Ibid page 1 paragraph 3 and following.
148. The submissions urge on the Tribunal the conclusion that this applicant would face harm if he returned to Pakistan but at 7.2.3 they concede that the applicant’s wife would not accompany him.
149. The Tribunal is not satisfied this country information shows the applicant would face a risk if he returned to Pakistan without his Shia wife.
150. The submissions at 7.2.4 refer to a report that the Taliban in Afghanistan have banned Sunni-Shia marriages from 3 February 2023. The submissions ask to Tribunal to accept that the cultural norms of the Pakistani Taliban are similar to those of the Afghan Taliban.
151. The Tribunal notes that the applicant is already married, that the ban is on Sunni followers giving daughters to Shia followers and vice versa. It does not suggest any ban or infraction by the married persons themselves.
152. Further the ban does not suggest that anyone breaking it would suffer a particular penalty and does not assist the Tribunal in finding whether the applicant’s marriage, which pre-dates the ban results in him facing relevant harm.
153. At 7.2.5 the submissions direct the Tribunal’s attention to attachment 23[10].
[10] International Crisis Group, “A New Era of Sectarian Violence in Pakistan” 5 September 2022.
154. The submissions say that an excerpt from the article “…describes exactly how the Applicant’s uncle’s personal enmity against the Applicant would be weaponised to make him a victim of mob violence by Sunni extremists…”
155. The Tribunal regards this statement as unsupported. The applicant’s uncle lives in Australia. The applicant has not suggested that his uncle is associated with the Labaik party. The assertion that his uncle’s personal enmity would be “weaponised” is wholly speculative. The Tribunal is not satisfied by the applicant’s submission and is not assisted by the country information referred to.
156. At 7.2.6 the submissions state that the same report, attachment 23, demonstrates a risk to the applicant as a former NGO worker and a man married to a Shia woman, particularly because his home area is subject of anti-Shia activity.
157. The quotes then provided in the submissions refer generally to the rise of the Labaik party and to conflict between the Sunni and Shia sects and particularly residents of the Balochistan and Khyber Pakhwunkhwa areas of Pakistan. There is nothing to suggest that the applicant would be viewed as a blasphemer because of his marriage or for any other reason.
158. The Tribunal is not satisfied that the report referred to by the applicant supports their submissions in any but the most oblique way and is not satisfied that the applicant’s submission is other than speculative as regards the harm he might face.
159. Paragraph 7.2.7 of the submissions refers to the bombing of a Shia mosque in 2018 discussed in attachment 24. On the basis of this and other country information provided by the applicant, the Tribunal is satisfied that there is some targeting of religious minorities in the general area of the applicant’s home in Pakistan.
160. The Tribunal notes the applicant is Sunni and not a member of a religious minority in his home. The Tribunal is not satisfied that the applicant’s association by marriage with a Shia woman would be enough to draw him to the attention of extremists. The Tribunal notes the applicant is unlikely to attend a Shia mosque in any event.
161. The Tribunal has had regard to the submissions and the references to attachments 24[11], 25[12]26[13], 27[14], 28[15], and 29[16]. These items support the submission that there are sectarian tensions and violence (generally against the Shia), but they do not suggest likely targeting of the applicant as a Sunni man married to a Shia woman, being the subject matter of part 7.2 of the submissions.
[11] US Department of State: Country Report on Human Rights Practices 2018, 13 March 2019.
[12] CSW Worldwide: CSW calls for increased protections of Pakistanis after suicide bomb attack, 1 February 2023.
[13] Jamestown Foundation: The Reemergence of the Jihadist Counter-Intelligence Group in Pakistan, 21 February 2023.
[14] The New Humanitarian: No good options for Pakistan as it tries to stem a new wave of militancy, 16 March 2023.
[15] Pakistan Today: IS recruiting thousands in Pakistan, Balochistan govt warned, November 8 2014.
[16] USDOS: 2021 Report on International Religious Freedom: Pakistan.
162. Part 7.3 of the submissions addresses the threat to the applicant as an internally displaced Pashtun and as a refugee.
163. It invites the Tribunal to consider the evidence before it of the applicant’s uncle’s apparent willingness to use legal mechanisms in Australia. The submission suggests the threat to the applicant’s visa status in an effort to extort money and the use of the courts to make unfounded and unproven allegations against the applicant.
164. The applicant has given evidence about the alleged extortion attempt. His evidence to the Tribunal was unconvincing. He claimed his uncle knew that he did not have any money, but demanded $40,000.00 from him.
165. The applicant has given no detail whatever about the criminal allegations made against him and the Tribunal is unable to assess this submission. The applicant claims he was legally represented and presumably has access to documentary evidence about this matter that he has not chosen to present to the Tribunal. The Tribunal is not satisfied that the applicant’s uncle has used legal mechanisms in Australia against the applicant.
166. The Tribunal is not satisfied the applicant is likely to “find himself in difficulty with Pakistani authorities upon return…”[17]. Attachment 19 to the submissions, The DFAT Report of 25 January 2022, is cited as supporting that contention. The Tribunal is not satisfied that it does. Although it does refer to reports of torture by Pakistani security forces, it is not clear that the applicant would be of interest to them. Further, at paragraph 5.31 the report suggests there is no significant risk of societal violence or discrimination as a returnee.
[17] Applicant’s submissions 24 April 2023 par.7.3.1.
167. At 7.3.3 the submissions refer to the risk of detention and torture as a returnee. The submissions refer to an authority that discusses the process of interrogation for a returnee to Sri Lanka.
168. The Tribunal is not satisfied that the applicant, as a returnee, is likely to be subjected to interrogation as suggested in the submissions.
169. At part 8 the submissions address the question of relocation within Pakistan to avoid harm and part 9 deals with State protection. Ultimately these considerations are not relevant.
170. Part 10 of the submissions relates to complementary protection.
171. The submission assert that the applicant fears harm from “…growing sectarian and generalised violence in Pakistan and would be targeted for harm based on his personal as well as ethnic characteristics.”
172. The Tribunal is not satisfied that the applicant faces relevant harm as a result of sectarian violence. The Tribunal is not satisfied that generalised violence as contemplated has the element of a risk that is personal to the applicant for the purposes of s36(2B)(c).
173. The Tribunal is not satisfied that the applicant is at relevant risk of arbitrary detention and harm from state authorities as contended at 10.4 of the submissions.
Consideration and Findings
The Taliban
174. The Tribunal is not satisfied that the applicant feared the Taliban at the time he left Pakistan.
175. The applicant gave evidence that the Taliban had communicated threats to the NGO for which he worked in the time before he left to come to Australia.
176. His evidence about the threats was inconsistent and unconvincing.
177. He asserted that there was written evidence from the time before he left the NGO to say that threats had been made against them.
178. The Tribunal put it to him that the written messages he had provided all post-dated his arrival in Australia.
179. He then purported to remember that the threats were made to his superior who called a meeting and advised the volunteers orally. This version does not appear in any of the applicant’s statements or in the submissions made on his behalf.
180. The applicant did not apply for a protection visa until October 2015 when his spousal visa application had failed.
181. Despite the applicant’s evidence that he had been threatened by the Taliban before he left Pakistan, his testimony was that he came to Australia to pursue his marriage to his cousin.
182. Weighing the evidence about this the Tribunal is satisfied the applicant came to Australia because of his marriage and not because of any threat from the Taliban. Further, the Tribunal is not satisfied the Taliban had threatened him.
183. The Tribunal has had regard to the various items of country information and is satisfied that by October 2014 threats had been made against the NGO for which the applicant had previously worked.
184. The Tribunal is not satisfied that threats were directed to any former volunteers at the NGO, including the applicant.
185. The Tribunal notes that the applicant had not worked for the NGO for well over a year by the time the threats were made.
186. The Tribunal is not satisfied that the written threat of 6 January 2015 is genuine.
187. It was not translated and provided to the Department until March 2019.
188. It does not reflect the summary given by the applicant in paragraph 18 of his sworn declaration of 16 October 2015 about him being sponsored to work overseas by the NGO.
189. It is dated about 18 months after the applicant had left the NGO.
190. The certified translation says “We are looking for your son because he works for an organisation…” That had not been the case for some time.
191. The country information does not suggest that former volunteers have been a target of the Taliban.
192. The report about the killing of [Mr C] of 6 December 2014 says the Taliban threatened him and that he was killed because he refused to leave the NGO. The strong suggestion is he would not have been killed if he had left. The applicant, on the other hand, did leave the NGO.

193. The Tribunal is not satisfied the applicant has been threatened by the Taliban since he came to Australia or at all.
194. The Tribunal is not satisfied the applicant fears or faces persecution from the Taliban if he returns to Pakistan.
The Applicant’s Uncle
195. The applicant’s uncle lives in Australia.
196. There is no evidence at all, including from the applicant, that his uncle is associated with extremist groups in Pakistan or that he has the capacity to arrange for relevant harm to be inflicted on the applicant should the applicant return to Pakistan.
197. There is insufficient evidence to demonstrate that the applicant’s uncle has been acting against his interests even though, to the extent the applicant says he has promoted a false prosecution of the applicant, one might expect documentary evidence of such efforts to be available. In particular, the Tribunal is not satisfied the applicant’s uncle has promoted a false criminal prosecution of the applicant in Australia.
198. The Tribunal is not satisfied that the applicant fears or faces persecution from his uncle if he returns to Pakistan.
Other Sources of Persecution
199. The applicant’s representatives assert in their submissions that he faces relevant harm from the Pakistan authorities.
200. In his evidence the applicant denied that he fears harm from the Pakistan authorities if he returns.
201. For the reasons set out in its consideration of the submissions, the Tribunal is not satisfied the applicant faces relevant persecution from the Pakistan authorities.
202. Similarly, the Tribunal is not satisfied the applicant faces persecution because of his Sunni religion, or because, if he went back, he would be mistreated as a returnee.
203. The Tribunal is not satisfied the applicant faces persecution because of his marriage to a Shia woman because the Tribunal is not satisfied his wife would accompany him if he returns to Pakistan.
APPLICABLE LAW
S36(2)(a) - REFUGEE CRITERION
204. 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. This is called the “refugee criterion”.
205. S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
206. The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Pakistani nationality. Further, the Tribunal is satisfied that the applicant is outside Pakistan.
207. The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Pakistan, which is the next part of the definition of “refugee” at 5H(1)(a).
208. S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
(a)The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
(b)There is a real chance that, if the applicant returned to Pakistan he 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 Pakistan.

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.

210. The Tribunal has considered the applicant’s claims and the evidence before it.
211. The applicant claims he comes within part (a) above because he expresses the fear of being persecuted for reasons of his Pashtun race, Sunni religion, membership of particular social groups being former NGO Volunteer, and person in an inter-sect marriage. He claims those reasons or a combination of those reasons, give rise to a fear of persecution in Pakistan by the community and by both the Taliban and by his uncle.
212. The Tribunal has set out its reasoning and findings above. The Tribunal is not satisfied the applicant holds those or any relevant fears.
213. The Tribunal is not satisfied the applicant comes within s5J(1)(a).
214. Therefore, the applicant is not a refugee for the purposes of the act and does not come within s36(2)(a).
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), he may nevertheless be entitled to the grant of the visa if he meets s 36(2)(aa) (‘the complementary protection criterion’).

216. To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to Pakistan, there is a real risk that he will suffer significant harm.
217. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
218. S36(2A) provides as follows:
(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.

219. The Tribunal has considered the applicant’s claims and is not satisfied the applicant fears persecution.
220. The Tribunal has considered the risk of harm in its consideration of the evidence and its findings set out above. The Tribunal was not satisfied by the applicant’s claims to fear persecution, because the Tribunal was not satisfied that the threats he claims to face are real.
221. For the same reasons the Tribunal is not satisfied the applicant faces a real risk of any harm, including significant harm, as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
222. The Tribunal is not, therefore, satisfied the applicant comes within s36(2)(aa).
Conclusions
223. 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).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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.

226. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
227. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O’Loughlin
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4761

8 November 2023

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