2104305 (Refugee)

2104305 (Refugee) [2023] AATA 3325 (12 July 2023)

CORRIGENDUM

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER: 2104305

COUNTRY OF REFERENCE: Pakistan

MEMBER: Rodger Shanahan

DATE OF DECISION: 12 July 2023

DATE CORRIGENDUM

SIGNED: 19 July 2023

PLACE OF DECISION: Sydney

AMENDMENT: The following corrections are made to the decision:

The name of country “Iran” in the second paragraph of point 167 should be replaced with “Pakistan”.

Rodger Shanahan Member

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER: 2104305

COUNTRY OF REFERENCE: Pakistan

MEMBER: Rodger Shanahan

DATE: 12 July 2023

PLACE OF DECISION: Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 July 2023 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – Pashtun ethnicity – fear of Tehrik-e Taliban Pakistan (TTP) – uncle target of a bomb attack – relatives kidnapped – social media activity – political opinion – Pashtun Tahafuz Movement (PTM) – credibility concerns – inconsistencies with information in student visa application – medical conditions – access to health care – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicant who claims to be a citizen of Pakistan, applied for the visa on 23 July 2014 and the delegate refused to grant the visa on 19 February 2016.

The matter was remitted due to a failure to take into account relevant DFAT Country Information and a media report into a reported bombing.

The applicant appeared before the Tribunal on 5 April 2023 and again on 30 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.

The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

CLAIMS AND EVIDENCE

Protection Visa Application

Submission 21 July 2014

I came to Australia in March 2013 for study purposes. When I went back to Pakistan in April 2014 I received a letter to see Tehrek-e-Taliban Pakistan (Taliban). They are a group of terrorists in Peshawar. I did not respond they sent me another letter and told me that ‘we know that you are hiding, but we will find you and kill you, because you are turned Christian’ and ‘you’re working with the government’. ‘Whenever we see you in Peshawar you would not have any result other than death’.

[Industry 1 company] works with government of Pakistan. This company works regularly on road constructions. My grandfather, [Mr A] and father [Mr B] and a friend [Mr C] are partners in this company. This company has been working with the government of Pakistan for a long time.

After graduating my family decided that I should get involved. I went along with my father a few times to see the construction sites. I must have been seen then. I reside on [named] Road in Peshawar, which is about [number] km from Khyber Agency. The Khyber Agency is associated with the Taliban. Mangal Bagh, a Taliban leader formed a parallel government in Khyber Agency. They forcefully recruit young people of the community and ask them to keep beards.

Peshawar is the most severely affected area in Pakistan as it is close to their headquarters and on the border to Afghanistan. They have destroyed many schools and many cultural sites. There have been a lot of suicide bombings in Peshawar, and so far over 50,000 people have been killed in these suicide bombings. Thus, the frequency is more than it was in Afghanistan. Now, the operations going on in Khyber Agency are highly active and there is a fear of backlash from the government.

The Taliban believes that:

a.Whoever works with the government is an infidel, because the government is working with the USA;

b.Anyone who earns money by working with the government is not halal. Halal means that it is not pure or earned by hard work; and

c.Whoever works with the government deserves a death penalty.

During my recent trip to Pakistan I received threatening messages from the militants, and once again they asked me to participate in their terrorist activities or they will kill me. I got really scared and returned back to Australia.

There is no safety in Pakistan as anarchy, terrorism and restlessness is on the rise and Pakistan as a state does not have enough resources to cope with all these problems. Their hands are tied, as their resources have been overstretched and they cannot handle any more problems. I have been severely affected to the point where I have become depressed. I strongly believe that I will be killed once and if I go back to Pakistan.

Submission 3 April 2019

We note that the applicant comes from a wealthy family in Pakistan. We submit that he would be targeted in Pakistan because he holds opinion against Taliban and Sunni extremists. He fears harm at the hands of the Taliban who remain active in his area and continue to target wealthy Sunni or perceived Wealthy Pakistanis who returned from overseas. We submit that the applicant would be targeted throughout Pakistan on the basis of his profile. We also refer to evidence that Pashtuns were subject to racist stereotyping and racial profiling and submit on the basis of this evidence that Pashtuns were severely discriminated in Pakistan. We submit that it would not be reasonable for the applicant to relocate within Pakistan.

We note that the security situation has significantly deteriorated in Pakistan. We submit that if the applicant were to return to his home area in the reasonably foreseeable future there is a real chance he would be subjected to serious harm amounting to persecution on account of the reasons he mentioned in his statement and submission including his active and imputed anti-Taliban political opinion. Accordingly, we submit that the applicant’s fear of persecution is well-founded.

Country information confirms that state protection from the Pakistan government remains weak, unpredictable and vulnerable to significant corruption. Accordingly, we submit that the applicant will not be able to access effective protection, and a real chance of serious harm remains should the applicant return to his home province.

In view of the unstable security situation in Pakistan, we submit that the state cannot meet the level of protection which citizens are entitled to expect, as discussed in MIMA v Respondents S152/2003[2004] HCA 18; (2004) 222 CLR 1. Based on the available country information, we submit that the applicant would not be able to avail himself of effective state protection against such harm.

Country information confirms that Sunni extremists target wealthy Pakistanis to extort money. We submit that that our applicant would face extortion due to a perception that he is wealthy and has the capacity to pay the ransom, as the local militants know about the financial positions of his family and target those who can pay the ransom. We note that if the people who are kidnapped for ransom failed to pay ransom, there is a real possibility that they would be killed for their failure to pay ransom.

We note that the applicant has now been residing in Australia for a considerable period of time and would be returning as a failed asylum seeker from a western country. We submit that if the applicant is forced to relocate to a larger city in Pakistan, he will face difficulties with reintegration and may well be perceived as a wealthy returnee from a western country which would further increase the risk of kidnapping.

We further note that the applicant may need to visit his home area in order to renew his national ID or obtain NADRA certificate and therefore, we submit that he would be identified and harmed when he return to his area for the above purpose. Taking into account the applicant’s profile and the country information on the level of violence throughout much of Pakistan, We submit that he would not be free from a well-founded fear of persecution in the other provinces of Pakistan.

In conclusion, having regard to the applicant’s personal profile and the growing presence of extremist groups throughout Pakistan, We submit that it is not reasonable for the applicant to relocate to any other part of Pakistan to avoid his risk of Convention based persecution. For the reasons given above, we submit that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.

Statement of 28 March 2023

I applied for a protection visa on the basis of the threat from Tehrek-e-Taliban (TIP) because they wanted to join me with them and wanted to abduct to extort money. I received threatening letters from them. In addition, my family is the owner of a construction company working with the Pakistani government for many years where I also worked and as a result of that I became a target for the Taliban. I will be considered as a member of a wealthy family in Pakistan and therefore, will be targeted by the Taliban and its affiliated organisations to extort money from me. I fear I will be considered as an infidel by the Taliban. In summary, I have a genuine subjective fear that if I returned to Pakistan now or in a foreseeable future, I will be targeted by the Taliban and its affiliated organisations and will be seriously harmed including killing, torture, abduction and will be subject to degrading, inhuman and cruel treatment.

I have provided consistent and coherent evidence to the Australian authorities related to my fear of harm. I note that the Department of Immigration in its decision record relevantly noted that I have provided honest responses at the interview with regards to my claims seeking protection. The Department also has accepted that I suffer from anxiety and depression.

I also note that I had a [Medical Condition 1] which was diagnosis in 2015. [Dr D] in his letter dated 05 March 2019 noted that I was under his care for 2-3 years for the treatment of [Medical Condition 1]. It should be noted that it is a blood disorder. I am currently with [Associate Professor E] and he is treating me for the above issues and have given a letter dated 27 February 2023. (Attachment 1)

In 2016, I consulted [Mr F], Psychologist who provided a letter dated 19 October 2016 where she noted that I suffer from major depressive disorder. In 2017, [Mr F] has provided another letter dated 2 August 2017 and observed that I have major depressive disorder. I also have consulted [Dr G] consultant psychiatrist who has provided letter dated 17 January 2023 and noted that I have a history of significant depression, irritability and agitation. I provide the above documents including my e- prescription.

It should be noted that since the time the AAT refused my application in April 2019, there is significant changes in country situation as well in my personal situation as well.

In relation to country information, I note that since the collapse of Afghanistan, the Taliban in Pakistan has further established their bases and network. I also note that TTP for instance, the country information confirms that Afghanistan Taliban continues to support the TTP. As a result of the above, there is a near collapse of political and security situation in Pakistan.

In relation to my personal situation, in October 2019, my cousin [Mr H] was kidnaped by the TTP when our family stopped paying ransom. He was released after our family paid the ransom. In March 2020 my uncle [Mr I] was kidnapped and later released after the payment of ransom. After the release, my uncle moved to Islamabad and used to publicly yelled and criticised Taliban. As a result of that sometime in September 2021, he was abducted in Islamabad and tortured by the Taliban. He was later released after paying hefty ransom. It is the ground reality in Pakistan in relation to us that as long as we stopped ransom, the Terrorist would target the family members to exert pressure on us regarding ransom. In 2022, one of my relative (my father's cousin) [Mr J], ex- councillor and ANP leader was killed.

In addition, when the Pashtun Tahafuz Movement (PTM) gained momentum in 2019 as a result of targeted killing against Pashtuns, I used to express my opinion through social media. It should be noted that my [social media] profile is with the photo of [Mr K], a prominent Pashtun activist and leader and the founder of the Awami National Party (ANP). I started gradually supporting the PTM. However when [Mr L] ex-senator and an activist of the PTM was murdered on 21 June 2021, I changed my [social media] profile picture in honour of him and kept for some days and then changed to [Mr K]'s. In addition, I used to express my opinion against Taliban through [social media].

Due to the escalation of attacks, violence and worsening of security and political situation in Pakistan, people like me are vulnerable targets from Taliban. I respectfully submit there is sudden escalation of violence and independence country information shows that TTP has grown in confidence and resources since the collapse of Afghanistan.

Based on my subjective personal situation and country situation I note that my fear of harm is real now and in foreseeable future. I note that moving to other areas of Pakistan is not reasonable due to my mental and physical health issues. In addition, there is escalation of severe discrimination and ethnic profiling targeting Pashtuns. Further due to my active and imputed political opinion supporting that PTM, I will face harm from the Pakistani authorities. Accordingly, I request the Tribunal to consider my claims individually and cumulatively with humanitarian consideration and recognise me as a refugee.

Statement of 17 April 2023

I provide following statement in support of my application for a protection visa review application. I note that the Department of Home Affairs in its decision noted the following:

"I accept the applicant's claims and I consider that the applicant provided honest responses at his interview with regard to his claims."

It clearly establishes the fact, that the Department seemed to accept my credibility and on the basis l submit that I have provided honest information and documents.

In relation to the issues raised during the hearing, I provide following information: Concerns related to my involvement with the PTM.
I submit that I did not involve or support the PTM just because of strengthening my protection visa. I note I did not mention my support to the PTM when I applied for my

protection visa or at the time I attended the DOHA interview or previous AAT hearing. The reason was, the persecution or attacks against PTM movement and the prominence of political activities of the PTM gained widespread support among the Pashtuns from early 2019 and at that time, my previous AAT made the decision for my case. Therefore, I did not have the opportunity to raise it. I raised it and my support to the PTM at the earliest possible opportunity and informed to the AAT. I submit that I have active political opinion supporting the PTM. Please read my statement I have given to the AAT.

Concerns related to the information provided in the student visa.

When I applied for a student visa, I approached a student visa consultant in Pakistan and they assisted me. They asked me to sign in the forms. I am not sure what information he provided in the forms or documents he provided. When I applied for my protection visa, I provided all relevant information and honest information. The student visa application was not prepared by me and prepared by the student agent. I should not be penalised for the wrong information or documents the student visa agent provided related to my student visa.

In addition, the AAT did not provide with documents related to my student visa for me to check and provide response related to that information. If the Tribunal wants to rely on that information, I request the Department to provide me copy of my student visa file.

Concern regarding availability of Medical treatment

I note that the reason the Federal Court issued Writ and remitted my case back to the AAT was, AAT's failure to consider and look DFAT report. I respectfully request the AAT to consider the most recent DFAT report where it provides:

2.14 Mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article· in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated. Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers known as baba, pir or sufi. COVID-19 has reportedly worsened the mental health situation in Pakistan.

The above DFAT report clearly indicates and supports my submission that there is lack of mental health treatment in Pakistan and there is less than 500 psychiatrist serving a population of 200 million. In addition, it further noted that COVID 19 has further worsened the mental health situation in Pakistan. I note that though I sought mental health treatment in Pakistan however, the DFAT report clearly noted that COVID 19 which developed in 2020 has worsened the mental health situation in Pakistan.

Accordingly, I submit that I will not be able to get effective medical treatment in Pakistan. I also provide my Uncle [Mr M] (father name [Mr N]) 's ID documents which shows that the Bomb incident address and the address shown in my uncle's CNIC addresses are the same. It establishes the fact he was the target. In addition, my uncle is a businessman and have travelled to [Country 1] for his business.

I note that I have told the department about my uncle's business in [Country 1]. It again establishes the fact, I am always honest and consistent with my evidence. In order to establish the relationship, I provide my uncle's ID and my mother's ID which shows the father's name is the same. See the attachment with the statement. (Attachment 1)

In relation to the incident In 2022, where one of my relative (my father's cousin) [Mr J], ex- councillor and ANP leader was targeted, the Tribunal asked me how it can satisfy itself whether was my relative. In my statement, it was mistakenly noted as killed but

he was targeted to be killed. In that statement 'targeted to be killed' was my mistake (typo error) missing. I read but somehow due to my mental health issues, I overlooked it. In reality, he was targeted, and they wanted to kill him. I enclose his ANP membership card, CNIC and Video. In the video, the Tribunal can see the prominent ANP members ("Ex- railway minister Ghulam Bilour, Ex-MNA Samar Haroon bilour "Female" and other members of ANP). I will ask my representative to upload the Video and if not, I will ask him to send by email to the AAT.

It should be noted that [J] is our tribe name and in fact my email address also shows my affiliation with my tribe [J] ([Email Address 1]). Some people use it and some people don't use. My elder brother uses the tribe name "[J]'. The reason I provide this information is to show the relationship we have with [Mr J] and to establish the fact that he is our relative. (attachment 2)

I also provide my CNIC which clearly states that since 2011 I lived and stayed in only one address and I did not change any address. [Address 1]). It is another evidence that I provided consistent information. (attachment 3)

I further note that after the collapse of Afghanistan has further worsened security and political situation in Pakistan. TTP and other Taliban organisations have establish their network and therefore, it is not reasonable for me to relocate.

I again submit that my statement, documents and evidence are true and correct and based on current country information, I request the Tribunal to consider my information, claims individually and cumulatively and recognise me as a refugee.

AAT Hearing

The applicant stated that he would attend the hearing and use English but would use the interpreter if necessary. He was asked if he was medically able to attend the hearing in light of the medical evidence he had presented, and he stated that he was able to attend. Asked if he knew that everything in his protection visa application was true and correct, he claimed that it was. Asked whether he also knew the information in his previous visa applications was also true and correct, he stated that he did not know if the information in his student visa application was true or not.

Asked why he didn’t know if this was true or not, he said that he just went to an agent and he gave him his bank statements and apart from that he had no idea what the agent had submitted. Asked if he had mentioned this previously, he said that he didn’t remember. Asked if he had signed the visa application, he said that he didn’t remember. Asked if it was likely that he would have signed it, he stated that he didn’t remember. He reiterated that he didn’t know what was in his application besides his IELTS, his degree and bank statements. He had given no statements to his agent. He didn’t know the process and didn’t know whether his agent’s name was on the form – it may have been.

It was put to him that there was a section in the form where the agent who filled out the form would have had to put their name. He said that this could be the case but he didn’t know. He had not provided any proof of employment and his agent hadn’t asked for it or anything other than he had provided.

The applicant was told about the presence of a s. 438 certificate but the Tribunal didn’t believe it was valid as it only related to some general procedural documents that had no bearing on his claim.

The applicant claimed that if he returned to Pakistan, he used to work in a government construction company and the situation was that the TTP was trying to extort money from people. Asked what he thought would happen to him as an individual, he claimed that he had been sent some letters by the TTP and he did not respond to them. Because of this they would kill him because he had not joined them and they were looking for wealthy people to extort. The letter was to extort them and if people didn’t respond they would put bombs out the front of their house or kill them.

He said that this was his only claim and it was put to him that he had made other claims in his statement. He said that his state of mind wasn’t perfect and he couldn’t remember everything perfectly. He then said that he supported PTM and he added that this was a claim. Because of this support for PTM, he believed that Pakistani Intelligence (ISI) would forcibly disappear him. These were his only claims.

Regarding his TTP-related claim, he said that when he went from Australia to visit his mother in March 2014 because she was sick. During this time he received a threatening letter telling him to join them. This occurred around 20 days after he arrived and it was put under the entrance door of his parent’s house. His brothers and sisters also live in the house. He had [number] brothers and [number] sisters and they all lived in the house at this time. The letter was addressed to him.

His father then advised him to leave as soon as possible although he could not find a ticket to come to Australia so he went to Islamabad two days later. The letter was designed to extort money from them and a letter was also sent to his maternal uncle three months later with the same style of writing. They sent his maternal uncle another message. The applicant received two letters around 5-6 days apart but he was in Islamabad when the second letter arrived. The second letter threatened to kill him because he had not replied to the first letter.

He returned to Australia and his maternal uncle received letters and many phone calls. He didn’t pay (AUD 150,000) and they then placed a bomb at his house. His uncle wasn’t killed as the bomb was put near his house. Someone going to the mosque for early morning prayers was at the front of the house at the entrance and it was seen by one of the people who reported to the police. The applicant applied for protection in June/July 2014.

Asked if his brothers had received letters urging them to join the TTP, he said the letters just requested ‘a person’ to join them. There were continuing threatening phone calls from an anonymous number in Afghanistan asking for money or for someone to join TTP. It had been going on since he had been in Australia. His parents were still paying money so his brothers didn’t join them.

Asked why his family wouldn’t just keep on paying if he returned and the TTP weren’t harming them because of this payment, he said that if they didn’t pay money the TTP would try to kill them. He had a news article with him that referred to his father’s cousin. Asked why he thought that he would be killed given he had [number] brothers and nothing had happened to them. He said that he was told that he would be killed because he did not respond to their letters and they said he was an apostate and anti-Islam.

He was asked why they thought he was an apostate and he said that this was mentioned in the second letter – he didn’t know why they thought he was an apostate. It was put to him that this didn’t make sense and he stated that he hadn’t read the letter so he didn’t know why they called him this. Asked why they hadn’t harmed his brothers – he said that it was because he was the only one in Australia. It was put to him that they wanted people to join them and he said the TTP just wanted the money paid in lieu of their joining.

He was asked why they wouldn’t just continue to take money from his family if he returned rather than try to kill him. He claimed that they were aiming to get money from wealthy people and he would not join a group who killed people. It was put to him that his siblings hadn’t been killed by the group even though they never joined them. According to the applicant his parents were paying the TTP so their children didn’t have to join the TTP.

He said that their rule was the payments had to be continuous and his family couldn’t do it forever, and once they stopped paying then they would be killed. It was put to him that his family had allegedly been paying for nine years and they could no longer afford to do this. He said that he was not lying.

It was put to him that the applicant had provided a media report previously about a 2014 bomb placed outside a person’s house that he claimed was that of his maternal uncle. He was asked if there was any evidence that this house was that of his maternal uncle, given there was no information about the name of the person who owned the house. Even if the Tribunal had a name then there was nothing that would indicate that this person was his uncle. He said that he understood and asked what evidence he could provide. It was put to him that given the scant information in the report it was unlikely that much weight could be given to this media report.

It was put to him that the body of the story said that bomb was placed next to a petrol pump whereas the applicant was saying that the bomb was next to his front door. He said that the petrol station was just next door. He claimed that the headline referred to his house. It was put to him that if they wished to spread terror in the city it made sense to plant a bomb next to a petrol pump in order to get greater explosive effect. He said that he had explained this to the DHA and he was saying the same thing that the bomb at his uncle’s house was a warning to them.

Asked about his claim that he would be disappeared by the ISI for supporting PTM, he claimed that when there was the Soviet-US Cold War, and Pakistani land was used to expel the Soviets from Afghanistan. He was asked to focus on his individual links with PTM and why ISI was interested in him, given his interest had not been mentioned prior to his submission of the previous week.

He became attracted to the PTM in 2018/19 – he had not mentioned this previously because he didn’t wish to. Asked why he suddenly decided to mention this, he said that recently the PTM issue became problematic and the elder members were being arrested and disappeared which hadn’t occurred previously. Asked whether people who disappeared made him attracted to PTM and he said that it was not, it was because PTM spoke about peace.

Asked what he meant when he said that he supported PTM, he said that PTM was completely against ISI actions against the Pashtuns. He was asked what he meant in terms of supporting PTM that gave him a profile that would bring him to the attention of ISI, and he claimed that supporters oif PTM would be killed. Asked how anyone would know he was a PTM supporter, he said they would look at his [social media] profile.

The Tribunal stated that it didn’t have a copy of that profile and he said that he had displayed the photo of a PTM activist who was later killed. He said that he had provided a copy of this to the Tribunal. Asked when he began the [social media] page, he said that it was in 2010. It was put to him that all he had provided the Tribunal was a page from December 2022 condemning the Taliban and a picture from [June] 2021 – he said this was the PTM activist. It was put to him that he had claimed in his statement that he used to regularly criticise the Taliban on [social media] and was asked if he had other entries. He said that he didn’t actually criticise them regularly.

He was asked how often he would criticise them given he had given the Tribunal had only been given one [social media] entry. He said that he regularly spoke to others in the community. When pressed about his [social media] page he said there may be other entries but he could only remember the one he had given the Tribunal. It was put to him that it didn’t sound like he regularly criticised the Taliban on [social media] as he had only provided one entry from the last 12 years.

Asked how many people called [the applicant's name] were on [social media] and he said perhaps 400 (he later said 3-400 and then 1,000 people). Asked how people would know the person that hosted the photo on a [site with his name] was the applicant and why ISI would be interested in someone’s site that hosted a photo of a PTM member for an undetermined period from June 2021 but had no other instances of pro-PTM (or anti-Taliban other than December 2022) sentiment on it despite being active since 2010.

He claimed that ISI was always trying to find people posting activist entries on their social media such as WhatsApp and they will try to arrest and kill them. It was put to him that there were hundreds of millions of posts on [social media] every day and he had just given the Tribunal two posts – he was asked why he thought ISI had any interest in the posts or knew who posted them given the sheer volume of posts on [social media] daily. He said that if he were in Pakistan and had done such posts then ISI would definitely track him down and punish him. Asked how many people there were in Pakistan, he said there were millions. Asked if it was 250 million, he said possibly more. It was put to him that it was therefore physically impossible to monitor every social media site and he was not active, offering only two critical posts with a common name. He was asked how ISI would know of his posts or care if they found them.

He said that ISI was opposed to PTM and if PTM do any activities ISI try to arrest to arrest them but before that they look around to find out who the activists are and then later wait to arrest them. They will get to them eventually. He understood that Pakistan has a population of 250 million but the PTM are a different issue and the government is against them. When he spoke to his family in Pakistan they didn’t speak about the politics or activism – they just had social conversations. They both knew what to say.

It was put to him that he had claimed that he expressed his opinion through social media yet he had only offered two posts for the last 12 years, which didn’t indicate him as being active on social media. He said that in his community in Pakistan there were supporters and they were difficult to argue with and they may think he brought foreign ideas and values back with him. He was advised that this wasn’t the questions asked of him, which related to the paucity and banality of his [social media] entries that was in contrast to his claim in his statement regarding his activity.

He stated that the figure whose picture he posted was anti-government and the establishment of Pakistan was illegal. He was again told this was not what he was asked, which related to his activity on social media. He could have taken a screen shot of a photo and then taken it down straight away as the Tribunal was provided with contemporary evidence of the post. He said that he got this from the PTM page which he ‘Liked’. He was asked about his [social media] page, which didn’t support his claim. He said he just had this one post and he had left it for nearly one year but this was his only post.

It was put to him that he had said that it was not reasonable for him to relocate in Pakistan due to his mental and physical health needs and was asked what he meant. He said that he was currently under treatment for mental health issues and lost his temper easily. If he was punished for a small issue in Pakistan he would lose his temper and this would become an issue – he would be punished heavily.

He said he was under medication since 2014. Asked if he had seen anyone in Pakistan he said that he hadn’t as it hadn’t been much of an issue until he received all these warnings and then this became an issue. He also had an issue with his anaemia. It was impossible to be treated in Pakistan – he was asked why this was impossible, he stated that it may be possible but the availability of the medication was an issue because of the problems and the supply would not be guaranteed. He had to take his medication every day or else he would die.

Asked why it would not be available in Pakistan he said there was discrimination and the medications were not readily available. He was asked to provide country information to support this given he had not provided any previously. He was asked if he had seen anyone for mental health reasons in Pakistan and he said that occasionally he would see the chemist and ask for sleeping tablets but he wouldn’t see a doctor. He then said that he had seen a psychiatrist once upon a time in Pakistan but he couldn’t remember when. Asked to confirm that he had seen a psychiatrist he then said that maybe but he couldn’t remember.

He was asked why he couldn’t move to a bigger city in Pakistan if the problems were in Peshawar. He said that it was hard for Pashtuns to move from their area because of language, relationship and discrimination problems. Any protests or attacks or explosions anywhere a Pashtun would be detained and blamed for the attack. There was also the issue of relationships between Pashtuns and the Taliban and being blamed for being pro-Taliban. Recently Imran Khan had been arrested and the majority of the Pashtuns were coming to his area t support them and perhaps the government was thinking that PTM would be doing things on their behalf against the government.

In May 2022 his father’s cousins had a bomb planted in his home area and people then tried to extort money from him. There was a newspaper article – his name was [Mr J]. Asked if there was any way to prove this person was his father’s cousin. There was no way for the Tribunal to verify the relationship. He could just have taken someone’s name from an article and then claimed it was his father’s cousin (maternal first cousin) – there was no way for the Tribunal to know. He was asked to provide anything he could that would support his claim. He said he would try.

It was put to him that he also claimed that an uncle and a cousin had also been detained and tortured but there was no evidence to support such claim. They just relied on his oral testimony that the Tribunal had to determine how much weight to give it. He said that if the Tribunal had any doubt, he was speaking honestly. He didn’t mention any of this prior to 2019 but he was now saying this and didn’t manufacture anything. He could have manufactured these before his DHA interview if he thought he had made them up. He said he would try to provide some documents.

He was told about s 424AA and it was put to him that the Tribunal had a copy of the student visa application, and it said that there was nobody who assisted him to fill it out. The response was sent to his personal address (in Rawalpindi) which he had asked for it to be sent to. The Tribunal was concerned that he, and not an agent had filled it out. He had also stated in the application that he was the only child and only legal heir to his family’s assets; he also said that his father had businesses – a [Industry 2], [Industry 3] and [Industry 4]. He also said that he owned a house in Rawalpindi and worked for an employer there.

Subsequently he claimed that he had [number] siblings, his father worked for a road construction company that did work for the Pakistani government and he lived in Peshawar. These numerous inconsistencies could go to issues of his credibility. He claimed that he had been honest and truthful and provided the relevant documents. He had been consistent about his siblings in his interviews. The first application was prepared by an agent and he didn’t know

the contents of the forms – he gave documents (bank statement) to the agent to get the visa but he had no idea what he did from there on. He didn’t live in Rawalpindi and his ID would show this.

He was asked why the agent wouldn’t state that he had filled it out, and it was strange that he would provide the applicant’s address and email for correspondence rather than his. It didn’t make sense. He insisted that the student visa form was so complicated that he couldn’t do it by himself and he gave the documents to the agent to fill out. He was asked why the agent (whose name he claimed not to know) would come up with so much extraneous information like purchase and rental agreements for a residence in Rawalpindi that wasn’t required. The Tribunal had concerns the applicant wasn’t telling the truth.

The applicant stated that he had [number] siblings so there was no need for him to say he was an only child – it was put to him that country information indicated that fraudulent documents were easily obtained in Pakistan so the Tribunal also needed to take note of this.

Also under s 424AA it was put to him that there were research papers available on the internet that spoke of the treatment for the disease that he had which would indicate that his blood disorder could be treated. He had provided no evidence that it could not be treated in Pakistan. In his DHA interview he had also said that he had seen someone for mental health issues in Pakistan and been prescribed medication that was the same as that he had subsequently been prescribed in Australia. This would indicate that he was able to access the Pakistani health system for his mental health issue and that they had the appropriate medication to treat it that he was able to purchase. The combination of the two may mean that while he has the medical conditions, they are treatable in Pakistan.

He claimed that while the treatment may be available in Pakistan, there was a shortage of medications and this would affect and risk his life. He may lose his temper if he couldn’t access the medications and this would lead to other complications. It was put to him that he had a supportive family back in Pakistan who he was in contact with and this could help with his mental health treatment. The medical letter also noted that the uncertainty of his visa situation was causing stress and that if he were to return to Pakistan this would relieve another stressor.

He claimed his family was under threat as well as him. He had been fighting so many departments in Australia about his condition and put himself in the Tribunal’s hands. What was portrayed in the media about Pakistan was not always true. It was put to him that much of his claim relied on his oral testimony so the Tribunal needed to assess his credibility, and there were concerns about this to date. He stated that he had mentioned his situation many times and repeated his claim about the student agent who filled out the form incorrectly.

He was also told about s 91R(3) and it was put to him that his claim regarding being a supporter of PTM only appeared after his application was rejected by the Department, and his sole entry on his [social media] page that indicated a pro-PTM sentiment also appeared after his application was rejected by the Tribunal. The Tribunal had concerns that he had created this post for the sole purpose of trying to establish a PTM profile and did not indicate any genuine support. He claimed that he posted the picture in 2021 and he wasn’t thinking at the time that this claim would improve his chances. He thought his original claim would be enough.

It was put to him that he claimed that Pashtuns were discriminated against in Pakistan yet he also said that his father’s company had been granted government contracts for a long time and was profitable which didn’t appear to indicate they were discriminated. He claimed that they operated only in Peshawar, not other areas where he would be discriminated against.

Also under s 424AA it was put to him that he had claimed his father only worked in Peshawar, yet in his student visa application indicated that his father operated businesses in other cities in Pakistan which was different to what he had just claimed today. He repeated his claim that this was his agent who had provided false information. He had not provided any information and had no clue about what the agent had put in his claim. He was asked why the agent would write such things when there was no need to write such things. He was asked and again said he didn’t know who the agent was.

It was put to him that he said that he said his uncle moved to Islamabad and he agreed, and he had said in his student visa that he had a house in Rawalpindi – he was asked why he couldn’t relocate. He said that even though his uncle moved, he had been kidnapped by the TTP – asked if he had any evidence he said that his family was sick of everything.

The adviser said that the DFAT report supported their claim regarding the medical issues that his client faced in Pakistan. His client had accessed mental health issues before the onset of COVID and the situation was now worse. The applicant had also mentioned directly or indirectly his fears of the Taliban and didn’t intentionally engage in activities such as supporting PTM to bolster his claim. He also mentioned the problems that faced Pashtuns in Pakistan.

Second AAT Hearing

A second hearing was held and the applicant was asked and agreed that he understood the preamble from the first hearing and did not require it to be read again. The applicant was advised that the Tribunal needed to ask some additional questions of the applicant, including some in regards to information he had given post the first hearing. The first was a claim that his uncle [Mr M]’s ID card established that he was a target and the address established that he was the target.

He said that the address was on the card and it was put to him that this referred to a post office. He said this was the address. It was put to him that [Suburb 1] was the name of the suburb and he agreed. He was then told that at best the ID card may indicate that his uncle lived in the same suburb as the bomb blast. He said that the newspaper article said that the bomb was out the front of a businessman’s house and it was out to him that he said that his article had an import-export businessman and the applicant said the Department and the Tribunal could verify his information if they wished.

It was put to him that the ID card was issued in 2017 and the bomb blast was in 2014. This meant that if this person was his uncle (and there was no guarantee this was the case), then the only thing the card proved was that he was living in [Suburb 1] in 2017 three years after the bomb was placed in the suburb. It also referred to another location as the holder’s permanent address.

The applicant claimed that he could give a CNIC issued prior to 2017 that showed the same address. He was told that he had to be careful about saying that his evidence proved certain things when they didn’t. He again said the Australian authorities could go and verify this – he was advised that this was not what occurred.

It was put to him that [Mr M] and [Mr N] were common names and so it was difficult to establish that [Mr M] was his uncle. He said that his families’ NADRA cards could be checked and this would show the uncle’s name. It was also put to him that his father’s cousin [Mr J] was targeted and gave evidence (a membership card) that showed the name [Mr O] without any explanation. He said that sometimes people used the tribal name or their other (family) name in Pakistan. His brother used the name

[J] for example. He was the only counsellor from the area and used the name [Mr O]/[Mr J].

It was put to him that none of this was explained in his post-hearing submission and there was no evidence provided that would support his claim that this person was his father’s cousin. He then said that [Mr J] was targeted and then later, killed. This was unusual if he knew the person as a relative. It was also put to him that country information indicated that documents could be easily forged in Pakistan and there were concerns that the card was either not genuine, or that the person referred to was not [Mr O] and/or not related to the applicant. He said that the Tribunal had to go and verify if they wished to. He was already told the Tribunal did not verify such information.

Asked why he provided an ID card in the name of [Mr O] when the person he claimed to have been attacked was called [Mr J], he said that he didn’t think it would create doubt in the Tribunal’s mind. Asked if [Mr J] was a common name, he claimed that it wasn’t that common. He was asked if it was fair to say that two people named [Mr J] were not necessarily related. He said that there were hundreds of thousands from this tribe (the Tribunal believed it to be a million) and he agreed that people with this name were not necessarily related. He said that there was only one councillor from the area and the Tribunal could check in Pakistan to verify his claims.

Asked why he couldn’t relocate given he claimed his uncle moved to Islamabad when he felt threatened and the applicant claimed that he did the same. It was also noted that his student visa application said he had a house in Rawalpindi (near Islamabad). He said his ID card proved he never lived in Rawalpindi and he never went to university in Islamabad. His student visa application was done by his agent and he didn’t know what written there.

Asked why he and his uncle travelled to Islamabad to seek safety, he claimed that his uncle was kidnapped after a month and the prominent Taliban leaders were from Islamabad. Asked why he and his uncle went there for safety if the Taliban influence was so strong, he said his uncle thought it might be a little safe but he was still kidnapped. Asked what work his siblings did, he claimed that one brother is a doctor.

It was put to him that he had given a letter from a psychiatrist from September 2021 and was asked how often he saw the psychiatrist – he saw him every two to three months. He later said every three to four months and the doctor would change his medicine. It was put to the applicant that he had a brother who was a doctor, had never been hospitalised for mental health reasons and would just require medication.

He saw a psychiatrist three times a year and had previously seen a doctor in Pakistan who had prescribed him medications that were agreed as appropriate when he returned to Australia. It was put to him that, while there were a dearth of psychiatrists in Pakistan, he didn’t seem to require extensive mental health treatment as it could be treated with medication and he had a brother who was a doctor who could assist him in navigating the health system in Pakistan.

He stated that his brother was just a GP and if he went to a different area he didn’t know how he could re-establish his health treatment. His family was not safe where they lived. It was put to him that his family hadn’t moved so they must feel safe. He said that his uncle was targeted when he moved si there was nowhere that was safe. It was put to him that his family was bale to move according to country information and his family was wealthy, he said that his family was threatened already and would be tracked down.

Country information was put to him that while there were several hundred attacks occurred in Pakistan every year and the Taliban were targeting security forces so they didn’t lose the

support of the population. In 2022 there were 14 attacks against civilian targets resulting in 13 killed which was very low in a country of 230 million. This did not indicate that the security forces couldn’t provide a safe environment for the population. He said that the 2022 figures were more – it was put to him that the figures quoted to him were from 2022. He then said that the last five or six months were worse – he was asked to provide this post-hearing. He said the country was oin the verge of collapse and civil war and things couldn’t be guaranteed in the future.

He claimed that if he missed his blood disorder medicine he would die of a heart attack. The doctors had confirmed this. If he had been kidnapped or the police arrested him then he wouldn’t be able to take the medicine and he would be dead. It was put to him that the doctor’s letter didn’t say what he indicated and he should be careful of what he said as fact. At this point the applicant was warned about the tone he adopted; he said the member was acting with sheer arrogance.

The adviser was asked if wanted to say anything. He covered what the doctor’s letter said and that if left untreated the applicant may get blood clots that could lead to heart attack. It was put to him that this didn’t say that he would be dead very quickly if he didn’t take his medicine. The adviser said that the Tribunal needed to look at the cumulative effects of the applicant’s health condition and the impact if he had to move.

He also said that there was a question of whether the authorities were able and willing to provide protection to the applicant. Cumulatively, given the lack of manpower from the security forces they would not be able to protect the applicant even if they wished to. With respect to fraudulent documents that CNIC and SNIC had chips and therefore had a good level of security. It was put to him that the question was about the [Mr O] documents, not the ID card of his uncle. The issue with respect to the uncle was the commonality of the name and the currency of the address.

Asked if the applicant was working, he said that he was working as a [Occupation 1]. He had no family here. It was put to him that it was normally considered beneficial to have family members around him to assist in mental health treatment and support him. He said that his blood disorder meant that he was staying in Australia to live. It is not safe in Pakistan and he was suffering in Australia. The adviser said the applicant would face serious harm if he had to return to his family home area.

Section 424A Letter

Following the second hearing a s. 424A letter was sent to the applicant that contained relevant pages of his student visa application along with a request for the following information:
Your student visa application contains a range of information that is inconsistent with that provided to the Tribunal and other Australian government officials. This includes, but is not limited to your employment, education, family composition and employment and residency.

The application indicated that it was not filled out by an agent and gave an email address in your name in the contact details. As raised with you at the hearing, the Tribunal is concerned that you have knowingly provided false information as part of
your student visa application and given the amount of allegedly false documentation provided this was not done by an agent without your knowledge.

The applicant provided a seven-page statutory declaration in response.

CONSIDERATION OF CLAIMS AND EVIDENCE

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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 a protection 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 the applicant 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’).

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

The applicant arrived in Australia on a student visa [in] March 2013. He returned to Pakistan once, [in] April 2014. He applied for a protection visa on 23 July 2014. The application was refused by the Department on 19 February 2016, and this decision was affirmed by the previously-constituted Tribunal on 29 April 2019. The decision was appealed to the Federal Circuit Court which dismissed the case [in] November 2019. It was appealed to the Federal Court which allowed the appeal [in] March 2021.

The applicant is a [age] year-old single man. The Tribunal accepts that he is a Pakistani citizen as evidenced by his passport. He claimed that if he returned to Pakistan he would be killed by the Tehrik-e-Taliban Pakistan (TTP) because he did not respond to their letter asking him to join them, and that ISI would ‘disappear’ him because of his support for PTM. He stated that these were his only claims (the Tribunal has addressed a range of other claims made by him).

In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.

Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.

Credibility

Much of the applicant’s claim relies entirely on his oral testimony regarding events that occurred to him or to other family members, or that individuals he has named are actually one of his relatives. Therefore the Tribunal needs to assess that credibility. The Tribunal accessed the applicant’s student visa (SV) application and there is a range of documents and statements that are inconsistent with the applicant’s protection visa (PV) application and statements. These include, but are not limited to, the following:

a.SV states he is a single child, PV says he has [number] siblings;

b.SV states that his father had a [Industry 2], [Industry 3] and [Industry 4], PV states that his father worked in a road construction company that had contracts with the Pakistan government;

c.SV states that he owned a property in Rawalpindi and lived and worked there, PV stated that he lived in Peshawar and worked for his father.

I do not accept that the inconsistencies are because an agent filled out the applicant’s student visa and he had no idea what was in the application. The applicant was unable to say who the agent was at interview and there is no indication that an agent filled out the form. In his subsequent statutory declaration to the s. 424A letter he was still unable to give any details of the unnamed agent, referring to him throughout as ‘the agent’.

It makes no sense why the agent would concoct a whole back story, including his family’s business interests when the applicant claimed that his family was already wealthy as a result of their road construction business. Given this, there was no reason to make something up. I also do not accept the applicant’s statement in his reply to the 424A letter that ‘…it is beyond imagination that the agent had totally disregarded my whole family members and did not attach my family registration certificate…Why would I commit such a mistake’. It is reasonable to believe that the applicant would know that a single child seeking to take over the family business (as was stated in the student visa statement) may appear more likely not to overstay their visa (compared to an applicant with eight siblings) and therefore a visa would be more likely to be granted.

I further note that the applicant has denied that the email address allegedly provided by the agent ([Email address 2]) did not belong to the applicant and was created by the agent. Anyone could have created this email address, including the applicant who could have several addresses unknown to the Tribunal. Again, it makes no sense why an agent would fail to note that the application was filled out by them and, if this was the case, not provide their business email address.

The applicant provided examples of students from India and Pakistan being ‘scammed’ by migration agents. This Tribunal does not see the relevance to his claim of any of the examples provided, particularly given the fact he is unable to even say who the agent is. The nature of the inconsistencies between the two visa applications cannot be explained by the

actions of an unnamed agent. It makes sense that an agent would want to keep as much of the information presented as valid as possible to minimise the opportunity for checks to reveal any fraud. Yet not only was this not the case, in issues such as employment there would have been no need for an agent to fabricate the background if it were actually true as it would have helped the applicant’s student visa application.

I also note that the delegate in the February 2015 Departmental decision considered that the applicant provided honest answers at the interview regarding his claims. I have formed a different opinion to that of the delegate some eight years later given I have more material at my disposal (student visa application, additional statements) on which to form my opinion.

Because I am satisfied that the applicant knowingly provided false information to the Australian government in order to obtain a student visa, other aspects of his evidence that rely solely on his oral testimony should be treated with appropriate caution.

Interest from TTP

I do not accept that the applicant is or ever was of interest to the TTP or any of its affiliated organisations. I have considered the letters he claimed had been left at the house in Pakistan but lend them no weight. They are photocopies of handwritten notes that could have been produced by anyone. The timing of the letters is also suspicious, coming as they did on 11 and 17 May 2014 at the very time he returned to Pakistan – they were also specifically addressed to him which is in contrast to his other claim that his brothers received letters simply requesting ‘a person’ to join them.

I do not accept that they threatened to kill him because he had turned Christian. This claim was made in his first statement, however the translation he provided of the letter in which the claim was allegedly made said that ‘…your punishment is just death and, according to reports you have sought asylum in Australia, an infidel nation’. Not only does it not explicitly accuse of him of becoming Christian, it references a protection visa application, which is a confidential process and therefore the TTP would not have known that this was the case.

I also do not accept that the applicant worked for his family road construction company that had contracts with the Pakistani government, and that he was therefore imputed with being an infidel and would be killed by TTP as a result. I have already noted the inconsistencies between the applicant’s protection and student visa applications regarding his family’s business interests, and I also note that the applicant’s siblings have not been targeted because of their alleged association with the family road construction company. Because I do not accept that the applicant was of any interest to the TTP I do not accept that he continued to receive threatening messages from them.

I also do not accept that a bomb was placed outside his uncle’s house in Peshawar after the applicant returned to Australia. He provided a copy of a November 2014 newspaper report about a bomb that had been defused next to the entrance of what he claimed was his uncle’s house. The headline mentioned the bomb was placed in front of a house in [Area 1]. The body of the story however, stated that the bomb had been placed near a petrol pump at a petrol station in [Suburb 1], Peshawar. The businessman was not named.

I place little weight on this report as evidence that his uncle was the target of a bomb attack. Importantly, the name of the businessman is never mentioned in the story. Next, the account of the bomb’s discovery is much better described in the body of the article rather than the headline. This focus of the account was on the bomb’s location relative to the petrol pump and not the house mentioned in the headline, although if the service station was opposite the house this may account for the strange description.

Post-hearing the applicant claimed that a national ID card proved that his uncle’s address was the same as the target of the bomb. I do not accept that this is the case. The ID card was issued in August 2017 and says the holder’s ([Mr M]) present address is [Suburb 1], [named] Post Office, Peshawar. It also notes his permanent address as somewhere in [District 1]. [Suburb 1] is a district/suburb within Peshawar and [Area 1] a specific part of [Suburb 1].

There was nothing to indicate that [Mr M] was living in [Suburb 1] in November 2014 nor that he lived in [Area 1] (the area where the bomb was planted). Post-second hearing the applicant provided a photocopy of another card (that did not appear to possess any security features) with the same details and issue/expiry dates of July 2003/June 2016. Even if I were to accept this other ID card as genuine, at best it shows that someone called [Mr M] may have been living in the same suburb/district of Peshawar where the bomb was found in 2014. However there is nothing to indicate that his house was where the bomb was placed or that he was the target.

I also do not accept that his cousin [Mr H] was kidnapped by TTP in October 2019 when his family stopped paying a ransom, that his uncle [Mr I] was kidnapped in March 2020 and later released after a ransom was paid, moved to Islamabad where he criticised the TTP and was subsequently abducted in September 2021, tortured and released after a ransom was paid. I also do not accept that his father’s cousin [Mr J] (ex-councillor and ANP leader) was killed in 2022.

To begin with the timing of this series of actions against people he claims are his relatives raises suspicions in the Tribunal’s mind given they occurred following the rejection of his protection visa application by the previously-constituted Tribunal. The Tribunal is also not satisfied that the events he described occurred or that the people named are his relatives.

A perfunctory search of the internet shows how common names such as [Mr I], [Mr M] or [Mr H] are in Pakistan and they do not denote, in and of themselves, any form of familial relationship let alone a close one. I note that the name [Mr J] denotes that the person from the [Mr J], a Pashtun clan. I also note that the applicant believed there were hundreds of thousands of people in the [J] tribe, while country information indicates that there are approximately one million [Mr J] spread between Afghanistan and Pakistan1 so that simply having the name [Mr J], or using it as one’s email address does not denote a familial relationship with a person using the same name – simply a common clan heritage shared by a million other people.

He was asked for any evidence that these incidents occurred however none was provided, meaning that it relies entirely on his credibility which as I have noted previously, is lacking. I note that in his post-hearing submission he stated that [Mr J] was not killed but was ‘targeted to be killed’ and blamed the discrepancy on his mental health issues. I have also taken into account photocopies of what he claimed were copies of [Mr J]’s ANP membership card and CNIC.

The photocopies he provided of what appear to be a CNIC card, voter registration and ANP membership card all refer to someone with the name [Mr O], not [Mr J]. The registration card has hand-written information entries and the ANP card says it was valid until December 2014. No explanation was given as to why identity cards belonging to [Mr O] rather than [Mr J] were provided.

Post-second hearing the applicant also provided what appears to be a photocopy of a card from the [named] Neighbourhood Council issued in May 2022 designating [Mr O]

1 How One Tribe’s Food Became a Culinary Brand in Pakistan — GOYA, accessed 24 May 2023.

as a peasant (convenor) and a national ID card for the same person issued in March 2022. Post-second hearing the applicant also provided an affidavit from Pakistan allegedly signed by [Mr O] ‘[J]’ saying that he was the person targeted by the hand grenade and that the applicant was the son of his cousin.

Given concerns already mentioned regarding the proliferation of fraudulent documents in Pakistan I am unable to lend the non-chipped ID cards or the affidavit any weight. There is also nothing (such as a photo from a media report regarding the attack) that would indicate the person the applicant described as [Mr J] (but whose documents record him as [Mr O]) is the person who was a senior ANP member who survived an attack.

I also do not accept that the applicant will be targeted because of his criticism of the TTP. He provided a screenshot of a single [social media] post condemning the Taliban that was posted in December 2022. The Tribunal was not able to verify whether the page was still able to be viewed. I do not accept that he used to express his opinion against the Taliban through his [social media] or that he regularly spoke against the Taliban to others in the community given this latter claim relies entirely on his oral testimony which I have found lacks credibility. I am not satisfied that a single critical [social media] entry on a site that has existed for 12 years constitutes ‘expressing his opinion against the Taliban’ or that it would come to the attention of the TTP, particularly given there are nearly 1.4 billion [such social media] users.2

Whilst country information indicates that TTP attacks in Pakistan have increased since the Taliban took power in Afghanistan, I also note that the same information indicates that the TTP has moved away from attacks against civilians because it was undermining popular support, to focus attacks against the Pakistani military, government representatives, political and religious leaders and Shi’a, Ahmadis and Christians.3 The alleged attacks against [H] and [I] alleged by the applicant do not appear to follow this pattern.

Attraction to PTM

I do not accept that the applicant is, or would be perceived to be a PTM supporter or of interest to the ISI because of it. Nor do I accept that there is a real chance that he would support them on return to Pakistan and come to the attention of the ISI in the reasonably foreseeable future. The applicant had never expressed any interest in the movement in his initial protection visa application.

I do not accept that the applicant only became interested in it since 2018/19 when older members began to be arrested, or when the PTM gained widespread support from Pashtuns in early 2019 as a result of targeted killings of Pashtuns. He claimed variously that he had an active political opinion supporting the PTM and that he used to express his opinion through social media and to criticise the Taliban through [social media]. I do not accept that he was or is active in promoting PTM issues or criticising the TTP on social media. The only evidence he provided to the Tribunal was a screenshot of a PTM figure that he had ‘liked’ on [social media] in June 2021.

I have already noted previously the sheer volume of material hosted on [social media] and the fact that it was unlikely that the applicant’s single [social media] entry of unknown duration would even have been sighted by ISI. And, given the absence of any political profile on the part of the applicant as well as the fact that the ‘liked’ post was the only one relating to the PTM, I am satisfied that even if it was known by ISI they would not consider him to be of interest as an activist. I do not accept his claim that ISI would know and they would wait for him to

2 [Source redacted].
3 DFAT Country Information report – Pakistan, 25 January 2022, p 25.

return to Pakistan given it was simply an assertion and I have already noted the Tribunal’s concerns regarding his lack of credibility.

Medical Issues

I accept that the applicant has a blood disorder ([Medical Condition 1]) and suffers from mental health issues (depression, anxiety, irritability and a GP diagnosed bipolar although this wasn’t noted by the psychiatrist). I do not accept that either of these conditions could not be treated if he were to return to Pakistan.

Regarding his mental health condition, I have taken note of the letters he presented and accept that he has been attending a GP in Sydney for bipolar/anxiety/depression and a psychologist for depressive illness for a year between 2016 and 2017. He has been prescribed medication during that time and has not reported any episodes that required hospitalisation or emergency treatment. He has worked as a [Occupation 1] for the last six years. He provided a letter from a psychiatrist who stated that the applicant had been attending his clinic since September 2021 (without referring to how regularly – the applicant said at the second hearing that it was every four months) for depression/irritability/anxiety. The psychiatrist noted that the uncertainty of his visa situation was aggravating his depression.

The applicant has also provided country information that indicates there are fewer than 500 psychiatrists in Pakistan and that more than 90 per cent of those with common mental health ailments remain untreated. Whilst I accept that the applicant has a mental health condition and that treatment available in Pakistan falls well short of that available in Australia, I do not accept that his illness will go untreated.

I note that he claimed during his DHA interview that when he was in Pakistan he went to a doctor for mental health reasons and he was subsequently prescribed the same medication that he was subsequently prescribed in Australia. This would indicate that the applicant is able to access the medical system which is in turn able to prescribe him the necessary medication to treat his condition. I do not accept that there is a shortage of such medication in Pakistan and he would not be able to obtain it. The Tribunal has no evidence that would support such a claim and he was asked to provide country information to support such a claim however he failed to do so.

I also note that the psychiatrist in Australia stated that the uncertainty of the applicant’s visa situation was aggravating his depression. The Tribunal is also aware that the applicant has a large family back in Pakistan who would be able to give him the type of personal support that only one’s family can provide and that is unavailable to him in Australia. Returning to Pakistan would not only resolve the uncertainty over his visa situation but also provide him with the warming embrace of a family. Country information4 indicates the importance of family in the treatment of one’s mental health and it is reasonable to believe returning to his family in Pakistan would aid in the pharmacological treatment of his anxiety and depression.

Regarding the [Medical Condition 1] diagnosis, there is nothing to indicate that it cannot be treated in Pakistan. None of the medical certificates he provided to the Tribunal indicated that he couldn’t be treated there, or that the necessary medications weren’t available. A quick internet search also revealed a range of doctors who can treat the condition5 as well as several scientific

4 See for example How Does Family Life Affect Mental Health? Building Blocks or Barriers - Mental Health Center, Preserve and strengthen family to promote mental health - PMC (nih.gov), A mixed methods exploration of the role of multi-family groups in community treatment of patients with depression and anxiety in Pakistan | International Journal of Mental Health Systems | Full Text (biomedcentral.com)
5 [Source redacted]

journal articles relating to treatment of the disease in Pakistan.6 I am satisfied that his condition could be adequately treated on return to Pakistan.

I also do not accept that the cumulative effect of his mental health (anxiety/depression) and his [Medical Condition 1] diagnosis represents serious harm for s 91 R(1)(b) and s. 91R(2) purposes. Both conditions require medication and there is no indication that such medication cannot be accessed in Pakistan. And, while I accept the lack of psychiatrists in Pakistan is an issue, I also note that the applicant has not required one in Australia until after his protection visa application was denied. The uncertainty this has resulted in has aggravated the situation. Therefore, providing the applicant with certainty regarding his future and returning him to his family in Pakistan who can provide him with familial support currently denied him in Australia is likely to positively assist the applicant’s mental health situation.

I also do not accept that the applicant will die because he will be denied medication for his PV if he is kidnapped and held hostage in Pakistan. I have addressed his concerns regarding the likelihood of his being kidnapped on return to Pakistan in paragraphs below.

Other Issues

Whilst I accept that the applicant is of Pashtun ethnicity I do not accept that the applicant was severely discriminated against because of this, or that there is a real chance that he would be in the reasonably foreseeable future. Country information indicates that Pashtuns face a moderate risk of violence by state security forces in Khyber Pakhtunkhwa but elsewhere in Pakistan they face a low risk of official/state discrimination.7 The applicant has provided evidence that he is well-educated, his brother is a doctor and the family is wealthy and their family company has been given Pakistani government contracts – this would indicate a good relationship with the government and also their ability to access good education and economic opportunity. This is not the profile of someone who has been severely discriminated against.

Whilst I note the risk of violence in Khyber Pakhtunkhwa I also note that the applicant’s family remains living there even though internal migration in Pakistan is common, although it depends on the individual’s financial means.8 Given the applicant has claimed that his family is wealthy I am satisfied that it is open to them (including the applicant) to move if they wished, and that their willingness to remain in situ is because they feel safe where they are. It is reasonable to believe then, that the applicant on return to Pakistan would continue to remain in his family’s location but if he felt it necessary because of discriminatory behaviour against him then he could relocate if required.

The applicant claimed that when he allegedly received the first threatening letter he moved to Islamabad as did his uncle because of another alleged threat. This again indicates that the applicant feels safe in a big city such as Islamabad and can move there if necessary. I also note that in his student visa application that he claimed he owned property in Rawalpindi (20 km from Islamabad) and that he gave his address for correspondence regarding his application as a Rawalpindi address which reinforces the Tribunal’s belief that the applicant can relocate elsewhere in Pakistan if required and that it would be entirely reasonable for him to do so. I have already noted that I do not believe that these details were fabricated by an unscrupulous agent in Pakistan.

6 See for example [Source redacted]
7 DFAT Country Information report – Pakistan, 25 January 2022, p 20.
8 DFAT Country Information report – Pakistan, 25 January 2022, p 43.

I do not accept that he would have to visit his home area in order to renew his ID or obtain his NADRA certificate and would therefore be vulnerable at that time. Country information indicates that he could do this on-line as one only needs to be present in person for the initial issuance, not renewals.9 I also note in the applicant’s post-hearing submission that he has already renewed his ID card (issued [in] 2021) that reinforces the view that it isn’t necessary to travel to his home area to renew such a document.

I also do not accept that there is a real chance that the applicant will suffer serious harm if he returns to his home province and that the state cannot meet the level of protection that citizens are entitled to expect. The applicant provided a range of country information outlining attacks that have occurred within Pakistan. The Tribunal accepts that there are such attacks in Pakistan and that the security situation has deteriorated since mid-2021 as per the DFAT report.10

The report on which the DFAT report is based notes that in 2021 there were 207 attacks that resulted in 335 deaths in Pakistan. The most recent report from the Pakistan Institute for Peace Studies (from which the DFAT figures come) indicated that in 2022 there 262 attacks resulting in 419 deaths.

There are two issues of note here that run counter to the applicant’s claims that there is a real chance that he will suffer serious harm as a result of the attacks in Pakistan. The first is that the 419 deaths, while tragic, occurred within a population of 230 million. The second is that of the 262 attacks in 2022, the majority (180) were against security forces and only 13 were against civilians, resulting in 14 deaths.11 As a result, while the Tribunal accepts that there are attacks occurring in Pakistan those with the applicant’s profile are not the preferred targets and the likelihood of being caught up in the incidental violence in a population of 230 million (based on the figures available) is so small as to be virtually zero. It certainly falls well short of representing a real chance.

I have taken into account the applicant’s claim that things are much worse in 2023, as well as country information provided to this effect by the applicant in his post-hearing submission. I accept that the number of attacks have increased and the death toll (356 in the first quarter of 2023). This does not alter the conclusion already expressed by the Tribunal – that in a country of 230 million people the likelihood of being caught up in such violence remains a remote possibility. The information provided by the applicant also supports the view that the TTP focus their attacks on military/security personnel and government officials, further lessening the risk of the applicant being caught up in incidental violence. His family’s willingness to remain where they live is again evidence that they feel the protection afforded them in their current location is satisfactory.

I also do not accept that there is a real chance that the applicant will be kidnapped or would be extorted due a perception that he is wealthy. I have taken into account the country information provided by the applicant regarding this provided post-second hearing and lend it some weight. One is a media report from an Indian agency, the second is from ‘Al- Quds.com’, an agency of uncertain origins and the third from AAJ English news a Pakistani agency (the story was a copy of that from the Indian agency). Other material was provided in previous submissions. I accept that there are reports of the TTP extorting money from people although the degree to which this occurs in a population of 230 million is unknown.

I note that the applicant’s family including [number] male siblings have remained in Pakistan for over a decade and have never been kidnapped. I do not accept that this is because his

9 DFAT Country Information report – Pakistan, 25 January 2022, p 45.
10 DFAT Country Information report – Pakistan, 25 January 2022, p 24.
11 SecReport_2022.pdf (pakpips.com), accessed 24 May 2023.

family have been paying the TTP for them not to do so. He did not mention this in his original protection visa application and his claim that his family is subject to extortion relies solely on the applicant’s oral testimony which I have found to lack credibility. It also makes little sense that the Taliban would send a separate letter to extort money from the family when the applicant returned to Pakistan if they were already extorting money from the family as he claimed. It also makes no sense that the family would still receive letters requesting ‘a person’ to join them if they were paying extortion money.

I also do not accept that there is a real chance that the applicant would face serious harm from Sunni extremists because they target wealthy Pakistanis. I have already noted above that I do not accept that there is a real chance the applicant will be kidnapped because he is perceived to be wealthy. The applicant did not mention Sunni groups other than the TTP who would seek to harm him. Given he is Sunni himself he has not explained why other Sunnis would target him other than for his wealth.

Further, I do not accept that he would be targeted by the TTP because his family owned a construction company that worked with the Pakistani government for whom the applicant also worked. I have already noted the inconsistency in the applicant’s student and protection visas regarding the family business and the applicant’s work in that sector.

I also do not accept that there is a real chance the applicant will face serious harm because he would return as a failed asylum seeker or as a wealthy returnee from a Western country. Country information indicates that returnees are generally able to reintegrate into Pakistan without repercussions and that they do not face violence or discrimination purely as a result of their attempt to migrate.12 The applicant failed to provide any country information to support his claim that he would face a risk of being kidnapped after being perceived as a wealthy returnee given he has already claimed his family in Pakistan is wealthy and they have not been the subject of kidnapping attempts.

As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.

Complementary Protection

Because I do not accept that the applicant is or ever was of interest to the TTP, an uncle was the target of a bomb attack, relatives kidnapped, is or would be perceived to be a PTM supporter, that his medical issues cannot be treated in Pakistan, would be severely discriminated against as a Pashtun, that he could not be effectively protected by the state, was ever friends with Meshal Khan or campaigned against the TTP and in favour of women’s education, that he was ever threatened or attacked by the TTP or pro-TTP students, that he ever received threatening letters or that his house was shot at, or that he was a wanted man in Pakistan and would be killed on return, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).

CONCLUDING PARAGRAPHS

12 DFAT Country Information report – Pakistan, 25 January 2022, p 44.

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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.

Rodger Shanahan Member

[2023] AATA 3325

12 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction