2004439 (Refugee)

[2023] AATA 4414

2004439 (Refugee) [2023] AATA 4414 (9 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBERS:  2004439 & 2208441

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Noonan

DATE:9 October 2023

PLACE OF DECISION:  Melbourne

DECISIONS:  The Tribunal:

a.remits the matter for reconsideration in matter 2004439 regarding a Temporary Protection (Subclass 785) visa application made on 3 August 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

b.sets aside the decision in matter 2208441 to refuse the applicant a Safe Haven Enterprise visa based on an application made on 17 September 2020, and substitutes it with a decision that the visa application was not valid.

Statement made on 9 October 2023 at 11.37am

CATCHWORDS

REFUGEE – protection visa – Pakistan – arrival by sea and temporary safe haven visa – not ‘unauthorised maritime arrival’ and ‘fast track applicant’, so statutory bar does not apply – first application valid so second application invalid – ethnicity, religion and imputed political opinion – Pashtun Sunni Muslim – work for international non-government organisation – threats from Taliban and fear of harm from authorities for claiming links between military and Taliban – westernised lifestyle, mental health and returned failed asylum seeker – late claim of kidnap and sexual assault by army or security personnel – previous protection application in third country under false identity and citizenship not disclosed in application – that application refused and applicant removed to claimed country – vague, inconsistent and discredited claims and evidence – short-term and low-level worker – unhindered departure – no harm to family members – country information – post-hearing psychological assessment – mental health consistent with past trauma – potential adverse profiling and real chance of persecution – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AA, 5H(1)(a), 5J(1), (3)(c), (4)(a), (5), 36(2)(a), (2A), 48A, 65, 91K, 427(2), 438(1)

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

DBB16 v MIBP (2018) 260 FCR 447

Guo v MIEA (1996) 64 FCR 151

Kopalapillai v MIMA (1998) 86 FCR 547

MICMSMA v CBW20 [2021] FCAFC 63

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 21 November 2017 and 6 June 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Pakistan and is [Age] years old. He disclosed in his application for protection that he is Sunni Pashtun from [Village], Lower Kurram Agency, Federally Administered Tribal Areas (FATA), Pakistan.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. He has notified that he departed Pakistan by commercial plane and then transitioned to a boat in [Country 1] and again in [Country 2]. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

4. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 11 February 2014. At the time, this was thought to trigger a statutory bar in s 91K, which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

5. The applicant applied for a Temporary Protection (Subclass 785) visa on 3 August 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 21 November 2017. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on ss 5H(2), 36(1B), or (1C) or ss 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make an application for a Safe Haven Enterprise visa on 17 September 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.

6. A valid application for review of the refusal decision in relation to the first visa application was made to the Tribunal on 5 March 2020 (AAT No. 2004439).

7. The second visa application was refused by a delegate on 6 June 2022. An application for review of that decision was made to the Tribunal on 9 June 2022 (AAT No. 2208441).

8. The Tribunal wrote to the applicant’s representative on 7 June 2023 to advise that it had determined that, while the first visa application in this matter is valid, the second visa application may be invalid for the reasons set out above in this decision. The Tribunal set out that, despite the second visa application potentially being invalid, all claims and evidence with respect to the invalid visa application, as discussed at hearing, will be considered by the Tribunal in the context of the valid visa application. The Tribunal invited written submissions on the validity of either visa application, or the proposed course of action by the Tribunal.

9. The Tribunal received a response from the applicant’s representative on 24 July 2023 that they accept that the first visa application is valid and that they: ‘are not, however willing to concede on jurisdiction in relation to the second application. Following the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 (CBW20), we raise concern that the Minister for Home Affairs’ position was different to that of the finding of the court and to ensure that we preserve the rights of the Applicant, we do not concede that the second review application is invalid’.

10. The applicant appeared before the Tribunal in a joint hearing on 27 July 2023, where he gave evidence and presented arguments about the issues that arise in both cases. The applicant is legally represented in this matter by Carina Ford Immigration Lawyers and the Tribunal hearing, held on 27 July 2023, was attended by Mr Dushau Nikolic, Partner - Carina Ford Immigration Lawyers, and Mr Scott Newton, assisting Mr Nikolic, representing the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

11. At the commencement of the hearing the Tribunal again outlined its proposed course of action and reiterated its view of the circumstances pertaining to this matter, which have resulted in the applicant having two applications for review of two separate decisions made by delegates of the Minister. The Tribunal stated that it has decided to combine the two reviews pursuant to s 427(2) and that, despite its view that the second application is invalid, it will consider all claims and evidence submitted in relation to that application for the purpose of reviewing the delegate’s decision with respect to the first valid application.

12. The applicant’s representative indicated that, while they do not concede the invalidity of the second visa application, they were agreeable to proceed with the hearing as proposed by the Tribunal.

13. The Tribunal proceeded as it had proposed.

14. The Tribunal determined that the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid, and that decision is recorded above.

15. The issue in this case is whether there is a real chance that, if the applicant returns to Pakistan now or in the reasonably foreseeable future, he will be persecuted for one or more of the following reasons: his race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether 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 that he will suffer significant harm.

    CRITERIA FOR A PROTECTION VISA

16. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

17. 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.

18. 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).

19. 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.

20. 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

21. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

22. The most recent DFAT Country Information Report on Pakistan was issued on 25 January 2022.

    Receiving country

23. The delegates in the two previous reviews found that the applicant had provided a false identity in the past to [Country 3] authorities when he applied for asylum there in 2005. However, each delegate was satisfied, based on the applicant’s testimony and submitted documentation, that he is a Sunni Muslim Pashtun from Lower Kurram Agency in Pakistan. This identity is reflected in a copy and translation of a Pakistan Computerised National Identity Card (CNIC) retained on the Department files. Given these considerations, the Tribunal is satisfied the applicant is a national of Pakistan and finds that Pakistan is his receiving country for the purposes of assessing his protection claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Non-disclosure certificate

24. The Tribunal wrote to the applicant’s representative on 16 August 2023 to advise of the existence of a non-disclosure certificate issued by the Department under s 438(1) on file number 2004439 and invite comment as to the certificate’s validity or otherwise. The Tribunal advised that, in its view the certificate is valid, and attached a copy of the certificate to its letter. The Tribunal also set out that broadly the information covered by the certificate relates to information, given in confidence to the Department, which alleged that the applicant had utilised fake documents to further his claim to be a refugee. The Tribunal advised that the information subject to the non-disclosure certificate was lacking in detail and that it accordingly would not be giving the information subject to the non-disclosure certificate any weight.

25. The applicant’s representative responded to the Tribunal’s letter of 16 August 2023 and asked that the information subject to the certificate be disclosed and made no submission as to the validity of the certificate itself. The Tribunal notes that it has already broadly disclosed the information subject to the non-disclosure certificate. As noted, the information is, in the Tribunal’s view, lacking in sufficient detail to be more specific than that already recounted by the Tribunal, and the applicant’s representative has not addressed the broad disclosure made by the Tribunal. In any event, the Tribunal had already indicated it would not be giving the information any weight as it is lacking any specific details with respect to claimed fake documents and information or how the anonymous informant would have acquired this knowledge.

    Summary of claims made in the protection visa interview in 2013

26. In his entry interview with the Department in 2013 (as summarised by the second delegate, whose decision was supplied by the applicant to the Tribunal), the applicant is recorded as claiming the following:

    ·From June to October 2012, he worked for [Organisation 1] in Islamabad, Pakistan.

    ·At the end of 2012, the Tehreek-e-Taliban (TTP), commonly referred to as the ‘Pakistani Taliban’, threatened to kill him and his cousin because they worked for Americans. They accused him of being a spy for the US.

    ·The Taliban first spoke to village elders, and then they sent him a threatening letter.

    ·He fears harm and mistreatment from the Pakistani Inter-Services Intelligence (ISI) and the Internal Accountability Bureau (IAB). Because he disclosed information about their links to the TTP, they perceived him as an enemy.

    ·He fears if he returns to Pakistan, the ISI and IAB will capture him at the airport.

    ·If the ISI and the IAB do not capture him, the TTP will kill him.

    The protection visa application lodged in 2016

27. In his 2016 claim and associated interview, the applicant is recorded as claiming (as summarised by the second delegate) that:

    ·He is a Sunni Muslim Pashtun from [Village] in Lower Kurram Agency in Pakistan's FATA.

    ·In August 2007, the Taliban took over his village. The Pakistan ISI directorate allowed the TTP to take control in order to secure US government funding to fight the Taliban in the area.

    ·The TTP demanded that each family provide one person to be a suicide bomber. As a result, his family and many others fled to Islamabad. He lived in Islamabad for five years. He did not work in Islamabad and was supported by his older brother.

    ·In 2010 he briefly returned to [Village] to inspect his family's property. The TTP were still present, although they were under attack from the military.

    ·The TTP stopped him and cut the collar off his shirt because it was Western style. They asked why he was clean-shaven. They let him go but threatened to kill him if they saw him again without a beard.

    ·In 2011 he returned to [Village] to marry. His wife is also from [Village]. After their marriage, his wife stayed in the village while he returned to Islamabad to study.

    ·Around June or July 2012, he began to work for a man who had a contract with [Organisation 1] to [do a job task 1 with specified people]. He worked as a [job task 1] for [Organisation 1] for approximately three months. He was based in [City], Kurram Agency, not far from his village. In the course of his work for [Organisation 1], he learned that the Americans were funding Pakistan to fight the Taliban, while at the same time, the Pakistan military and ISI were supporting the TTP. He planned to speak out about this and share the damaging information he had discovered.

    ·He would often take photos during his work for [Organisation 1]. One day a military person told him to stop. The applicant became angry and got into an argument with the military person. He told the military person that the Pakistani government did not help local people and was the same as the Taliban. The military person did not say anything but the applicant felt nervous about the argument. When he told his father about it, his father told him to go to Islamabad.

    ·The TTP left a letter at his home in [Village] while he was working for [Organisation 1]. The letter accused him of being a spy for the US because he worked with the Americans. He believes this letter was actually from the ISI. His father told him to stop work. He went to Islamabad and made arrangements to leave Pakistan.

    ·Shortly after he arrived in Australia, his family told him that people they believed were from the ISI had come to his home and asked where he was. In addition, his brother told him that people had come to his shop twice asking about him.

    ·If he returns to Pakistan, he will be arrested, imprisoned or killed because of his political opinion and because he wants to speak out about what he knows. The government knows he has damaging information about them, and he has accused them of working with the TTP. The ISI believes he is against them.

    ·He no longer has his passport and would need to return to Pakistan using a temporary travel document. Because of this, he will come to the attention of Pakistani authorities at the airport. They will know he has applied for asylum because his personal details were inadvertently briefly published on the Department of Immigration and Border Protection (now the Department of Home Affairs) website in February 2014.

    ·The Pakistani government will think he has criticised them in his asylum claims, and they will arrest him at the airport. He is afraid of being killed or tortured in prison because of his political views and because he came to Australia to seek asylum and criticised the government.

    ·He cannot live safely anywhere in Pakistan because both the TTP and the authorities are in control throughout the country and will be able to locate him.

1. On 21 November 2017, the first delegate made the following findings, as summarised by the second delegate:

   ·The delegate did not accept that the applicant was mistreated or harmed by the TTP during the period from 2007 to 2011. The delegate considered the claims not credible as the applicant was in [Country 3] at that time.

   ·The delegate did accept that he worked for [Organisation 1] in a low-level administrative and support role for approximately three months from June 2012. Nevertheless, the delegate was not satisfied that the applicant was documenting collusion between the TTP and the ISI. Furthermore, although the delegate acknowledged that the applicant argued with a military officer in 2012, he was not satisfied that the Taliban or government agencies such as ISI threatened the applicant.

   ·The delegate was not satisfied that the ISI came to the applicant’s family home looking for him and did not accept that the TTP people came to his brother’s shop looking for the applicant.

   ·The delegate accepted that the applicant’s details were inadvertently published on the Department’s website in the February 2014 data breach. As a result, the delegate acknowledged that the authorities might know that the applicant travelled to Australia to seek asylum but was not satisfied that the Pakistani government persecutes or targets those who have claimed asylum overseas.

2. No further claims were made before the Immigration Assessment Authority (IAA) reviewer and the reviewer came to the same conclusions as the first delegate on 24 July 2018.

   The protection visa application lodged in 2020

3. In his claim for protection lodged in 2020, the applicant submitted that he relies upon his previous claims made in 2016. His representative also stated that the applicant now fears harm due to the impact of the COVID-19 pandemic and associated increased scrutiny upon arrival in Pakistan. Further, the applicant now also fears harm because he has become Westernised, as exemplified by his Western clothes, his less religious outlook and the fact that he drinks alcohol socially. In addition, the applicant now suffers mental health issues, and he fears harm in Pakistan because of inadequate health coverage and also because of stigma in Pakistan against those with a mental health condition.

4. The applicant was interviewed on 7 March 2022 by the second delegate. This interview has been summarised by the second delegate in their decision as follows:

   ·     His family lives in Kurram Agency. The family has not been mistreated or harmed by the TTP or government agencies. However, in 2016 the Taliban came to a shop of his brother [Mr A] looking for the applicant. They destroyed the shop and bulldozed it. His brother did not report the matter to the authorities because they would have suppressed his complaint.

   ·     I noted that this appears like an isolated incident that happened a long time after he left Pakistan in 2013. The applicant responded that the TTP are very clever, fast and active, and they could find out who is working for Americans, and they never forget or forgive.

   ·     I noted that the applicant's current application does not mention the destruction of the brother's shop. He responded that his representative did not ask him about his family, so he did not tell them about it. He mentioned the incident because I asked about his family. The legal representative submitted that the IAA decision mentioned the incident.

   ·     The applicant stated that he provided a photo and a letter related to the incident to his previous agent sometime in 2017 and expected that the agent would forward the information to the Department. The letter was in English, and it was a permit to bulldoze his brother's shop to make the action look legal. I noted that I could not locate such a letter in his file. The applicant advised that he would provide the letter and evidence about the incident after the interview.

   ·     After the incident, his brother worked for a few years at a [project centre]. He is not working at the moment. His older brother works for a charity that distributes [products].

   ·     The applicant confirmed that he has never been charged or sentenced in Pakistan for any wrongdoings. I asked why the Pakistani authorities or Taliban would have an adverse interest in him. He reiterated that because he worked for [Organisation 1] and wore [an Organisation 1] uniform, he was labelled as an American spy and blacklisted. He also spent a long time in a western country, Australia, which would, in their eyes, prove their point. In addition, the Taliban did not like that one of the locals worked for foreigners from [Organisation 1].

   ·     While working with [Organisation 1], the applicant argued with an army officer and told him that the Taliban and the government are the same. This indicated to the authorities and the TTP that he was against them. The officer threatened him, saying that he knew him, he knew where he worked and told the applicant he should not be talking like that. In 2012, the applicant received a letter saying he should not be talking about collusion between the TTP and the authorities.

   ·     I asked the applicant what information he collected that would be damaging to the government. He responded that Pakistani army personnel would put on fake beards and moustaches during the night-time and go fighting in Afghanistan. The government forces also staged attacks in the Kurram Agency using American flags. I noted that these statements seemed very general and asked whether he could provide any details and evidence of such actions. He responded he had no proof but what he was saying was something everyone in his area knew about. I asked why he would be in danger if he was only saying what everyone knew. He responded that they know him, he was blacklisted, and the risk has increased with the rise of the TTP.

   ·     The authorities will not protect him if he goes back because the TTP and the government authorities work together. He left his family behind because he was in danger.

   ·     He fears he will be mistreated or harmed because of his Pashto ethnicity. He would be labelled as a supporter of the Taliban in other areas of Pakistan because he is a Pashto, so he would not be able to live anywhere else.

   ·     I asked the applicant whether he had any concerns related to COVID-19 and his return to Pakistan. He responded that he had no concern anymore because it was a global pandemic and he had been vaccinated.

   ·     The applicant stated that he is experiencing mental health issues. He engaged mental health professional to assist with his condition. He has been taking medication for depression since 2016.

   ·     I noted that the applicant's details were unintentionally published on the DIBP website in January 2014. This information included his name, nationality, date of birth, and means of arrival in Australia. The document did not disclose the reasons for detention, nor did it provide information regarding detainees' claims for protection. I asked the applicant if he had any concerns he would like to raise in relation to this matter. The applicant raised no further issues in this matter.

5. After the interview with the second delegate, the applicant’s representative provided further submissions and evidence related to the applicant’s health, his brother’s work for non-government organisations (NGOs) and the demolition of his brother’s shop. The representative stated that the applicant asserts that his brother [Mr A] ran a shop at the [City] Market and the Taliban bulldozed it in 2016. This brother had also worked for [Organisation 2] in Pakistan. His other brother, [Mr B], worked with [Organisation 3] in [project] work. He had stopped this work due to threats from the Taliban. Supporting documents supplied to the second delegate at that time, and retained on the Department file, are as follows:

   ·General country information related to mental health issues in Pakistan, the Taliban and DFAT country reports.

   ·A copy of the Character Certificate from Pakistan issued in 2013. It states that the applicant is a resident of [Village], Kurram Agency, Pakistan.

   ·Photos showing the applicant while working with [Organisation 1].

   ·A copy and translation of the rental agreement related to the shop at [Market], [City] owned by the applicant’s brother, [Mr A].

   ·A copy and translation of the affidavit from the Chairman of [City] Market. The document is not dated. It states that the [shop] operated by two brothers, was bulldozed in 2016 by unidentified people for reasons that could not be mentioned. The photos provided purportedly show the applicant’s brother in the shop after the Taliban visit.

   ·Documents related to [Mr B]’s work for [Organisation 3], including photos and employment agreements with the agency. The work agreements indicate that [Mr B] was employed by the agency on a contractual basis a few times from 16 February 2016 to 30 September 2018. He was employed as a Union Council [Project] Officer, a non-[professional] contractor, working in Kurram District.

   ·Documents related to [Mr A]’s work for [Organisation 2] in Pakistan, including an employment agreement. The agreement states that [Mr A] had a contract with the agency from 1 November 2021 to 31 May 2022. He was employed as [an Occupation].

   ·Medical report from Consultant Psychiatrist [Dr C] dated 8 August 2019. It states that the applicant has symptoms of anxiety and mild depression and anger. He was prescribed 50mg of Pristiq daily and advised to see a psychologist.

   ·Prescription in the applicant’s name for Amitriptyline tablets 10mg dated 23 August 2021.

   ·National ID card verification request form and evidence of payment for this service to the National Database and Registration Authority (NADRA) dated 9 March 2022.

6. On 6 June 2022 the second delegate made the following findings:

   1.The second delegate accepted that:

   ·     The applicant is a Sunni Pashtun from Lower Kurram Agency, former FATA, in Pakistan.

   ·     The applicant worked for [Organisation 1] for approximately three months, from June 2012.

   ·     The applicant has been diagnosed with anxiety and mild depression in Australia, and has been receiving counselling and taking medication.

   ·     The applicant will be returning to Pakistan as a failed asylum seeker from a Western country.

   2.The second delegate did not accept:

   ·     The claims made by the applicant in relation to the TTP for the 2007 to 2011 period.

   ·     The applicant was documenting collusion between the TTP and the government authorities.

   ·     The applicant was threatened, mistreated or harmed by the TTP, any other extremist Sunni group or the Pakistani authorities because of his work with [Organisation 1].

   ·     The applicant’s family was threatened, mistreated or harmed by the TTP, any other extremist group or the Pakistani authorities for any reason.

   ·     The applicant was of adverse interest to the TTP or the Pakistani authorities for any reason.

   ·     The applicant’s family was of adverse interest to the TTP or the Pakistani authorities for any reason.

7. The second delegate found that there was an improved security situation in Kurram District and assessed that, as the area is predominantly Sunni Pashtun, and neither the applicant nor his family has any links to Sunni militants, there is no real chance of harm to the applicant from either militants or the authorities related to his Sunni religion or Pashtun ethnicity. Further, they found that the applicant’s work for [Organisation 1] was brief, at a low level and many years ago, and there is no country information reflecting that such a person is a target for militants; as such, there is no real chance of harm to the applicant. Further, having considered country information, the delegate was not satisfied there is a real chance of harm to the applicant for reason of being a returnee from the West. The delegate also considered the applicant’s cumulative profile and decided that there is nothing to suggest the applicant has an adverse profile with militants or the authorities, which is consistent with his family’s ability to continue to live unharmed in Kurram District. The delegate also considered the applicant’s health issues under the complementary protection criterion, and found that country information does not reflect people with mental health concerns face discrimination constituting significant harm, or that the stigma associated with mental health issues stops people from seeking treatment. As such, there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there was a real risk the applicant would suffer significant harm.

   Pre-hearing submissions to the Tribunal

8. The applicant’s representative provided the following (summarised) information to the Tribunal prior to the hearing:

   ·     Statements from the applicant in which he stated (in summary) that he continues to rely on previous statements made in 2016 and 2022 and prior evidence submitted but resiles from his claims made in 2016 with respect to the period he was in fact in [Country 3]. He acknowledges that he previously travelled to [Country 3] and applied for asylum in 2005 before being removed in December 2011. He stated that he remains under treatment for mental health concerns and he is worried they will worsen if he is required to return to Pakistan. He asserted that the security situation in Kurram Agency is worsening due to tribal conflicts and he fears the Taliban will also become involved, making the security situation worse, and the Taliban will target him because of his and his family’s previous NGO work.

   ·     Submissions from the applicant’s representative in which further medical evidence with respect to the applicant’s mental health was submitted. Further photos, letters and affidavits were submitted with respect to the existence and bulldozing of the applicant’s brother’s shop.

   ·     Further evidence of the applicant’s work for [Organisation 3] and country information with respect to the situation for NGO workers, and a large amount of country information with respect to the security situation on the Pakistan border with Afghanistan.

   ·     Further submissions that the applicant fears persecution in Pakistan based on his membership of the particular social groups:

   o   A person with an association to the West due to his employment with [Organisation 1];

   o   A person who worked for [Organisation 1];

   o   A person who has been threatened by the Taliban;

   o   A person whose family has been threatened by the Taliban due to his involvement with [Organisation 1] and ties to the West;

   o   A person who has anti-Taliban views;

   o   A person with anti-government views;

   o   A person who has resided on the Afghanistan/Pakistan border;

   o   A person who requires mental health treatment;

   o   A person with family members who were threatened due to their work with NGOs (including assisting with [projects]);

   o   A returnee from the West; and

   o   A person with mental health issues.

9. On the morning of the Tribunal hearing, the applicant submitted a further written statement in which he stated (in summary) that:

   ·He was kidnapped and sexually assaulted by Pakistani army or security officials, and this constituted torture. This took place after the argument with the army officer in 2012. He was detained in the evening of the same day for the night and was told by two men that ‘we will show you who is the army and who is the Taliban’, after which he was sexually assaulted two times during the night. In the morning one of the men took photos of him and he was told the photos would be used to blackmail him, and he was told never to question ‘who is the army and who is the Taliban’ again.

   ·He was eventually allowed to leave and he took a taxi home. He then decided to flee the country.

   ·He had not previously disclosed this information as he wanted to protect himself and his self-respect. He felt ashamed about it. This event was the real reason that he fled Pakistan.

   Relevant evidence from the Tribunal hearing

10. At the outset of the hearing, the applicant confirmed that he felt mentally well enough to participate in the Tribunal hearing. He told the Tribunal he currently has employment in [an] industry.

11. It is undisputed that the applicant was born in Lower Kurram Agency, Pakistan. He confirmed that his religion is Sunni Muslim. He travelled to [Country 3] in 2005 through various countries (including [Countries 4-8]) and claimed asylum there under a false identity. He claimed that he was from Afghanistan and used false names and dates of birth. He was removed from [Country 3] in December 2011 to Afghanistan. The applicant confirmed with the Tribunal that this history was correct. His journey to [Country 3] was paid for by his father who paid an agent in Pakistan to facilitate the trip. His father had done this as the security situation in his home area was no good at the time. The idea to leave had been the applicant’s idea. When asked for more specifics as to why he left, the applicant stated it was a brutal environment in his area with much poverty, so he decided he had to leave. He wanted a peaceful life and to get an education. There was also fighting between Sunni and Shia in his home area and the environment was full of fear. He confirmed that he had left Pakistan due to the overall security situation and that there were no personalised threats of harm made to him at that time.

12. When asked why he had told the [Country 3] authorities he was from Afghanistan, the applicant stated he took the advice of the agent. He was only [Age] years old at the time and did not ask questions as he was immature. When asked why he perpetrated the lie for so long, he stated that everyone was told the same thing and the agent was looking for his money. When asked what difference it would make to the agent, the applicant stated that he never really understood the reason for claiming he was from Afghanistan. He only had one interview with the [Country 3] authorities and then was eventually deported to Afghanistan. He did not understand the refugee process. He was questioned about his claimed background in Afghanistan and he did not know what to answer and this was why his claim was rejected.

13. The Tribunal asked the applicant if, when he was informed that he would be returned to Afghanistan, he was also informed that he had a right of appeal. The applicant confirmed that he had not appealed the original [Country 3] rejection decision. When asked why not, he stated that he never understood the procedure or process. When he was told he would be going to Afghanistan, he still did not tell the [Country 3] authorities the truth as he was fearful of telling them this. When asked why this was the case, the applicant simply reiterated that he did not understand the process and just accepted what the [Country 3] authorities told him. He confirmed he was accepting of being deported to Afghanistan. When asked why, when he had never been there, he stated that he had to accept this. When asked why, he stated that he thought he would be able to easily make his way back to Pakistan from there.

14. The applicant told the Tribunal that in Afghanistan, he had landed in Kabul. He had then travelled across land to the Pakistan border. He had no trouble entering Afghanistan, travelling across Afghanistan or crossing the border into Pakistan. He stated it was easy to cross the border. He was not asked for identification or questioned at the border.

15. The Tribunal accepts the applicant’s evidence with respect to his travel to [Country] and false claims for protection made there. The Tribunal notes that the applicant was able to travel through Afghanistan with no hindrance or harm at that time.

1. The Tribunal asked the applicant why he had again made false claims in his 2016 application for protection with respect to the period of time he had actually been in [Country] (between 2005 and 2011). The applicant submitted that his representative at the time, named [Ms C], had not properly translated his claims and he had in fact only talked about his family’s whereabouts at that time. The Tribunal put to the applicant that he had claimed his village was taken over by the Taliban in 2007, that he had fled to Islamabad and he had then returned in 2010 and was threatened with harm by the Taliban upon his return. The applicant submitted there was a miscommunication. He had meant that his family had left for Islamabad and they came back in 2011, not 2010. The Tribunal then put to the applicant that the claim also states that, upon the applicant’s return to his village, he was threatened by the Taliban because he was clean shaven and wearing a Western shirt. The applicant then stated that he had meant to say this was when he was returning from Peshawar in 2011. When asked what he was doing in Peshawar, the applicant stated that is the way to return to his village when coming from Islamabad. He confirmed that he was travelling from Islamabad.

2. The Tribunal notes the inherent contradictions in the evidence and time frames with respect to the applicant’s claim that he was in fact threatened in person by the Taliban in 2011 while travelling from Islamabad, as the applicant was deported to Afghanistan in December 2011, and previously stated he was making his way back to Pakistan at that time by land and his home area is on the border with Afghanistan. He has also contradicted himself by stating he had meant his family was threatened and then, when more details were put to him, he changed this to a threat against himself. However, even if the threat was accepted, due to the passage of time and the difficulty in recalling such details, it is clear that it was no more than a passing threat made a long time ago with respect to his dress and shaven appearance and he was unharmed in the encounter. 

3. The applicant stated that when he returned to Pakistan, he got married and had a daughter. When asked how he had come to obtain work with [Organisation 1], the applicant stated that he was asked by an acquaintance, because he knew some English, to work for them. He was a subcontractor in [job task 1] working with [specified people] and also [did job task 2]. He undertook this work inside Kurram Agency but also travelled widely in [Organisation 1] convoys as far as Islamabad. It was an onsite job with big tents and the [specified people] would come to the tents. He then stated that mostly he would return home at night as the main operation was about five kilometres away.

4. The Tribunal asked the applicant about a claimed threatening letter received by his father from the Taliban. When asked if he had actually read the letter, the applicant stated he had not as he was already in Australia at the time his father received it. The Tribunal put to the applicant that he had claimed in his protection claim that he had received a threatening letter from the Taliban in 2012 accusing him of being a spy for America. The applicant agreed he had received such a letter. The Tribunal put to the applicant that he had not mentioned in his claim that this letter was issued because of his work with [Organisation 1]. The Tribunal noted that it would have expected he would have done so and as he had not, it may cause the Tribunal to doubt that any such letter had been received. The applicant then stated that he did not know why he kept that detail to himself and he is sorry he did so.

5. The Tribunal put to the applicant that, as per the second delegate’s decision (which he has supplied to the Tribunal), he had changed his evidence about this letter at interview with the delegate and stated instead that it had been received from government authorities. The applicant submitted that the Taliban and the government are all involved together. It was hard to understand who this letter actually came from. He stated that he had seen the letter and the Tribunal noted his previous apparently contradictory submissions that his father had destroyed the letter. He then stated that he saw it before it was destroyed. When asked what the letter said, the applicant said it accused him of being an American spy because of his work for [Organisation 1]. The Tribunal questioned the applicant as to how he had come to the adverse attention of such persons so quickly after beginning this work. The applicant submitted that his role was to take photos of [specified people] for [Organisation 1] as well as [job task 1]. He was asked to stop taking photos by an army officer. He was the only [Organisation 1] employee from the area. He believes this was why the officer did not like him doing that. The Tribunal noted that earlier, when describing his role for [Organisation 1], he had given evidence that he was a [job task 1] and a [job task 2] and had not mentioned any role taking photos, and this may cause the Tribunal to doubt he was also contracted to take photos. The applicant clarified that he took photos of vehicles as a record of vehicles on lease and operating, which he needed to take to get paid.

6. The Tribunal put to the applicant that the [Organisation 1] photos he has submitted appear to reflect a large operation. The applicant agreed this was the case as there were a number of villages that had been evacuated at that time and it was a huge operation. The Tribunal asked the applicant why it would be viewed as reasonably plausible that, as a low-level subcontractor in such a large operation, he in particular was singled out for adverse attention. The applicant returned to his claimed argument with the army person. He was offended that he was asked to stop taking photos and he argued with the officer and said to the army person ‘why not, is that because you are in league with the Taliban?’ He did not realise that he had offended the army person at that time. When asked when he had received the threatening letter, the applicant stated he had not received the letter at this time. The Tribunal asked why, in his claim, he had said the letter was from the Taliban. The applicant stated the logo and stamp used on the envelope was from the Taliban.

7. When asked about the [Organisation 1] base camp, the applicant stated there were two or three levy personnel providing security and he confirmed [Organisation 1] had never been attacked. The Tribunal noted this may cause it to consider that the [Organisation 1] operations were of no adverse interest to militants. The applicant merely submitted this was due to tight security.

8. On the day of the claimed argument, the applicant stated that the [Organisation 1] convoy was on its way out of base and there was a hill that he climbed to take photos of the convoy. There was a military checkpoint on the hill and the army person instructed him to cease taking photos, to which he replied that it was his duty to take photos of the [Organisation 1] convoy. He then got into a vehicle at the end of the convoy that was designated for him, and the convoy departed. When asked about the interaction with the army person, the applicant stated that it lasted a couple of minutes. The Tribunal asked the applicant how he could have been identified on the basis of such a short encounter. The applicant suggested it may have been due to him wearing [an Organisation 1] shirt. The Tribunal asked the applicant whether his statement that he was documenting collusion between the Taliban and the authorities was in fact correct. The applicant stated that he had witnessed this and had recorded this but he had lost all this evidence when travelling on the boat to Australia. When asked when he started doing this, the applicant simply stated broadly that he saw people looking like the Taliban going into military bases. The Tribunal asked the applicant on what basis he believes the authorities would have had, or would now have, any interest in his knowledge or views of such collusion. The applicant said he thought that, because he was taking photos in the area of the military compound and was associated with a foreign NGO, his profile was raised.

9. The applicant then proceeded to submit to the Tribunal that the main reason he came to Australia was because of what he had submitted that morning to the Tribunal. The Tribunal referred to the applicant’s written statement given at the commencement of the hearing. The Tribunal put to the applicant that he had said that he was located at the [Organisation 1] base at the end of his shift by army personnel or security services persons and noted that earlier he had given evidence that he was part of a convoy leaving the base. The applicant then stated, somewhat confusingly, that there were two occasions. The first occasion was when he had an argument with the army person and the second time was at the base, which was a different occasion. The Tribunal put to the applicant that in his statement he said that on the same day as he had an argument with the army officer he had returned to the base at the end of his shift, and then a man came to get him. The applicant submitted that he was on his way to his village on the same day in a car and it was then that a black four by four vehicle stopped him and asked him to go with them. He stated that he was only away in the convoy for one day. He had not seen the men who stopped him before. The Tribunal asked the applicant how these men would have known who he was. The applicant stated he does not know. The Tribunal put to the applicant that his evidence indicates that he had a brief encounter with an army person on a hill, he had then left in [an Organisation 1] convoy for the day and come back that night and then departed to go home and a person, who he had never seen before, pulled him over and detained him. The Tribunal noted that it may seem implausible that he could be detained on the basis of a brief description of him given by a soldier on the same day. The Tribunal asked the applicant why he went when asked to and he said they had guns. The Tribunal asked the applicant if two men detained him and he stated that was correct. The Tribunal put to the applicant that in his statement he had stated it was a man and not two men who had detained him. The applicant then stated there were two men in the vehicle but he was asked by one man. The Tribunal asked the applicant if he had money on him. He stated he had. He did not have identification on him. They gave him back his cash in the morning.

10. The Tribunal put to the applicant that his submission indicates that he was tortured by government agents and that it may find it surprising that he had never mentioned such an event previously as a reason for fearing harm. The applicant stated that he did not feel comfortable talking about it as it was damaging to his respect. When asked where he was expected that night, he stated he was going home. When asked if his captors made any demands of him other than ‘we will show you who is Taliban and who is army’ the applicant said they took photos of him naked and then sexually assaulted him with a pen. They took his address in the morning. 

11. The Tribunal put to the applicant that, even if it were to accept that he was detained as described, he was allowed to leave the next morning with his belongings, and he was then able to travel to Islamabad and depart by plane unhindered. The Tribunal put to the applicant that the 2013 DFAT report, applicable at the time of his departure, states that for Pakistani citizens, a valid Pakistani passport is required for exit from or entry into Pakistan. The government of Pakistan maintains an Exit-Control List (ECL) of those wanted for existing criminal offences, which is used at all Pakistani airports and border transit points.[1] The Tribunal put to the applicant this may indicate that he was of no ongoing interest to the authorities in general and as the incident was now many years ago, these factors may coalesce to a conclusion that there is no real chance that he would be of any adverse interest to the authorities now should he return to Pakistan. The applicant responded that he believes that his overall profile, being a person who previously worked for [an International] NGO and his long time in a Western country, would result in him being profiled by the authorities as a spy for Western interests.

    [1] DFAT Country Information Report, Pakistan, 29 November 2013, p. 23

12. The Tribunal then discussed the applicant’s claims with respect to the history of his siblings. The applicant confirmed his claim that his brother’s shop was destroyed by TPP Sunni militants. He stated the local Jirga decided this because of his own status as having left the country and their history of working for [International] agencies. The Tribunal put to the applicant that in his statement of claim he had stated that militants had visited the shop but did not mention its destruction. The applicant stated this was later, in 2016. The applicant also submitted his other brother had worked for an NGO in relation to [projects]. He has been forced to leave the area due to rising Taliban activity there.

13. The Tribunal noted DFAT advice about the prevalence of fraudulent documentation in Pakistan. The Tribunal asked the applicant, given this information, and his proven past behaviour of giving false evidence, why it should accept any of the proffered documents with respect to his brother’s past work and past harm as genuine. The applicant referred to his oath of truth.

14. The Tribunal put to the applicant that if he was to return to his home area and family now, it would be to a current situation where no one in his family works for an NGO and where he had a very brief, low-level job many years ago for an NGO. As such, it is difficult to understand the basis on which he would currently be of any adverse interest to Taliban aligned militants. The applicant responded that the overall security situation in the area is deteriorating and they are trying to make the Sunni and Shia fight each other again. He submitted that his wife has now left him and his father died, and he did not feel he was able to return there when either of these events occurred. When asked why the Taliban in particular would target him, the applicant replied that he has a history of working for an NGO and coming from the West may cause him to be labelled a spy by the Taliban and the authorities. The Tribunal put to the applicant that it may appear implausible that he would be labelled a spy just for the reason of his residence in the West. The applicant submitted that persons are disappeared by the authorities for not much.

15. The applicant stated that when he decided to leave Pakistan again, he chose to come to Australia. His father gave him land to sell to fund his trip to Australia. When asked if his siblings had ever tried to leave Pakistan, the applicant stated they have not left the country. One of his brothers recently left Kurram Agency and relocated to nearby Khyber Pakhtunkhwa (KPK). His wife, daughter, sister and mother all still live in Kurram Agency. His daughter, who is [Age] years old, lives with his mum. He then stated that his other brother has also relocated to KPK. His father lived in Kurram Agency up until his passing in March this year.

16. The Tribunal put to the applicant that country information with respect to Kurram Agency strongly reflects that violence by militants is overwhelmingly directed at military and government targets and this may suggest that there is no real chance he would be targeted for harm as a Sunni Muslim man. Further, the authorities appear to be targeting militants in Kurram Agency. The applicant submitted that the Taliban have a strict version of Islam and anyone who is different is liable to be labelled an infidel. Further, the military and the TTP and militants work together.

17. The Tribunal asked the applicant about his mental health concerns should he be required to return to Pakistan. He submitted that he has ongoing mental health problems. His main source of support was his father who has passed away. His brothers have left the area and have their own concerns and his wife has left him. He feels that he has no family support in Pakistan. He also feels that he will be unable to access his medications or meaningful medical treatment. When asked if he fears persecution for reason of his mental health, the applicant submitted that there is no real assistance available. He submitted that people with mental illness can be targeted for recruitment for suicide bombings. With respect to significant harm considerations, the applicant submitted that because of the taking of his photos by the army, he fears these may have been circulated and he would commit suicide rather than risk facing this.

18. The Tribunal discussed with the applicant that DFAT assesses, at 5.31 of the most recent country information report, that 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.[2] The Tribunal noted that this may suggest that the applicant’s time spent in the West, and associated habits and customs that he may have adopted, will not result in him being persecuted. The applicant referred to his own specific circumstances and profile.

    [2] Ibid, p. 44

    Considerations

19. It is undisputed that the applicant was born in Lower Kurram Agency, Pakistan and that he is a Sunni Muslim of Pashtun ethnicity. He travelled to [Country 3] in 2005 and claimed asylum there under a false identity. He claimed that he was from Afghanistan and used false names and dates of birth. He was removed from [Country 3] in December 2011 to Afghanistan.  The applicant confirmed with the Tribunal that this history was correct.

20. The Tribunal accepts the applicant’s evidence that he had travelled to [Country 3] with the assistance of his father in Pakistan. He informed the Tribunal that he had done so as he was seeking to escape the unrest and violence in his area and to obtain a better life for himself. He had not been personally targeted for persecution. When asked why he had used a false identity he submitted that he was young, naive and badly advised. When deported from [Country 3], he had travelled across land in Afghanistan and crossed the border with Pakistan and resumed life with his family in Lower Kurram Agency.

21. The applicant’s history of false identity use in pursuit of protection claims in [Country], his failure to disclose this in his subsequent application for protection in Australia and the associated past discredited claims of threats from the Taliban made in his protection claim in Australia, at a time he was in fact in [Country], caused the Tribunal to have significant concerns as to the applicant’s overall credibility. While the Tribunal acknowledges that the applicant has now disavowed these false claims, he only did so after many years of maintaining them to Australian authorities, and only acknowledged them when the Department discovered his actual past history and it was obvious he had no other choice. He did not therefore resile from his false claims without significant adverse evidence being put to him first.

22. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[3]  However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [3] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

23. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes, in particular, the cautionary note sounded by Foster J at [482]:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.