1411169 (Refugee)

[2016] AATA 4966

1411169 (Refugee) [2016] AATA 4966 (30 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411169

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Rea Hearn Mackinnon

DATE:30 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2016 at 8:26pm

CATCHWORDS
REFUGEE – Pakistan – imputed political opinion – outspoken against extremists – abducted with other friends – interaction with the peace committee who liaised with the Army – low level peripheral involvement – credibility issues – vague details about the abduction – fictions news reports – ongoing insecurity in Swat – family continues to live in Swat – mental health issues – lower standard of mental health services – inability to access specialist mental health care does not amount to persecution

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2


CASES

Applicant A v MIEA

SZTAL v MI & Anor

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

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

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 19 October 2012 and the delegate refused to grant the visa on 25 February 2013. The Tribunal differently constituted affirmed the delegate’s decision on 18 December 2013. The Federal Circuit Court remitted that decision on 12 June 2014.

3. The applicant appeared before the Tribunal differently constituted on 25 September 2014 and before this Tribunal on 2 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence on 25 September 2014 from [Mr A].

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

6. 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).

7. 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,

8. 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

10. The issue in this case is whether the applicant will suffer harm from militants in Pakistan. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

11. The applicant has provided his Pakistan passport. The Tribunal is satisfied that he is a national of Pakistan and has assessed his claims against Pakistan as his country of nationality and his receiving country.

    Background

12. The applicant claims, and the Tribunal accepts, that he was born in [year] in [Town 1] in Swat district in Khyber Pakhtunkhwa (KP) in Pakistan. He completed his Higher School Certificate in Swat in [year]. He entered Australia on 19 April 2012 as the holder of a [temporary] visa.

13. The applicant’s parents [and siblings] remain in Swat. The applicant told the Tribunal that his family is moving around between different locations in Swat and in Peshawar to avoid harm (discussed further below). When the Tribunal noted that he told the previous Tribunal his family was living in [Town 1], the applicant stated that they sometimes go back to their home in [Town 1] but they don’t tell people they are there. He stated that one brother [is] not working. The other brother is still at school.

14. The applicant confirmed that his father still owns the land and property described in his [temporary] visa application comprising the family home in [Town 1], three other houses in [Town 1], agricultural land in [Town 1], [shops] in Mingora (the main town of Swat) and a [factory] in Kabal in Swat. He told the Tribunal that the factory no longer makes [particular goods] because his father is moving around but it continues to repair [goods he sells] and only employs [a number of] people. He confirmed that the houses, shops and land are all leased to tenants.

15. The applicant’s claims are discussed below. In reaching its findings, the Tribunal has had regard to all of the written material and oral evidence provided by the applicant.

    Problems with Taliban prior to 2009

16. The applicant claims that he and his father had problems after the Taliban came to power in Swat in 2007. He claims that the Taliban demanded [particular goods] from his father in August 2008 and beat his father when the [goods] were not available. He claims that he spoke out against the Taliban at his school in 2008 and that he was then named on FM radio run by the Taliban as a person opposed to the Taliban. 

17. The Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989.[1] Maulana Fazlullah assumed control of the TNSM in 2001[2] and is widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands.[3] The TNSM gained de-facto control of Swat from 2007 to April 2009 and attacked targets which it deemed to be un-Islamic[4] and used violence to advertise its strength and maintain its power.[5]

    [1] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289-313. See especially pages 291-294

    [2] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York

    [3] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November

    [4] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28

    [5] Mustafa D and Brown K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; ‘Taliban behead two government officials in Swat’ 2009, Dawn, 3 May

18. The Tribunal accepts that members of TNSM may have beaten the applicant’s father in 2008 if he did not provide the [goods] they demanded. The Tribunal notes that no further harm befell the applicant’s father because he did not provide the [goods].

19. The Tribunal accepts that the applicant may have spoken against the Taliban in 2008 but does not accept that he was named on FM radio given he was just a school boy speaking at his school. The Tribunal notes that the applicant continued to reside in Swat and to attend the same school without coming to any harm following this claimed naming. The Tribunal concludes from this that, even if he was named, he was not targeted by the TNSM or the Taliban in 2008 because of anything he said at his school. 

    Kidnapping of applicant in 2009

20. The applicant claims that he and four friends, [Mr A], [Mr B], [Mr C] and [Mr D], were kidnapped by the Taliban [in] May 2009 as they were walking [home]. [Mr B] gave evidence before the Tribunal on 7 November 2013 and [Mr A] gave evidence on 25 September 2014. This Tribunal has also heard evidence from [Mr A] in relation to his own protection visa [application].  

21. The applicant claims that, [in] May 2009, a van approached him and his friends. A group of five or six men jumped out armed with Kalashnhikov rifles. They blindfolded the applicant and his friends, put them in the van, drove them into the mountains and put them in a room. When asked if the Taliban then untied their blindfolds, he said he thinks so.  He claims they were held for 42 days. When asked how he knows the number of days, he said that his father got a newspaper and they guessed.

22. The applicant claims that the men asked him a lot of questions and told him that they had kidnapped him because he and his father were working for the community and the peace committee (discussed below). The men told him he would go to paradise if he joined them and that the army is all kafir (non-believers). The men kicked him and mentally and physically tortured him. When asked why his friends were kidnapped, the applicant said that everyone’s father was working for the community. The applicant claims that the Taliban called their parents and demanded 3 million rupees ransom for each of them. The Taliban beheaded [Mr D] and [Mr C] in front of him because they were from poor families. He found out later that the Taliban returned their bodies to their families. The Army stormed the Taliban compound whilst their families were still raising the money. The Taliban thought the applicant and his surviving friends were Taliban and held them for a further 10 days before releasing them. The applicant’s friends have given consistent evidence about the kidnapping.

23. The Tribunal noted that the Army had commenced a large scale operation against the Taliban in Swat in April 2009 and that it is unlikely the Taliban was holding people hostage and demanding ransom at that time. The applicant stated that the Army operation was in different districts at different times and that Taliban members were still kidnapping people and demanding ransoms in order to support themselves.

24. The applicant provided a news report of the kidnapping in a publication [which] also contains a photograph of applicant and his four friends. According to a translation provided by the applicant, the report states that unknown persons in a pick-up put the five friends into the vehicle at gunpoint and drove away; that abductions in [Town 1] have risen to a frightening level which has caused serious concern; and that several families have relocated due to the lack of peace and rule of law.

25. When asked who gave the information in the report to the newspaper, the applicant stated that the Taliban would report these events to the media to scare other people and also made films of killings to scare people. When asked who provided the photograph, the applicant stated that a local reporter may have obtained it from some friends.

26. The Tribunal does not accept that the applicant was kidnapped by the Taliban in May 2009 as claimed. As discussed with the applicant, the Pakistan Army commenced a major offensive against the Taliban in Swat in April 2009[6] and by May 2009, the Taliban were reportedly on the run in Swat and 1.5 million people had been registered as IDPs.[7]  On 19 May 2009, the Army reportedly had 15,000 troops in Swat confronting 4,000 militants.[8] The majority of militants fled to neighbouring districts and Maulana Fazlullah fled to Afghanistan.[9] Given these circumstances, and the heavy fighting which ensued between the Army and the militants between May and August 2009, the Tribunal does not accept that the Taliban were in a position to kidnap the applicant and his four friends, hold them captive in Swat for 42 days and issue ransom demands between May and June 2009 or contact local media to publicise the kidnapping and does not accept that these events occurred.

    [6] ‘Macey, J, 2009, ‘Desperate Swat Valley situation revealed’, ABC News, 1 June

    [7] ‘Pakistan timeline’, South Asia Terrorism Portal, Ibid

    [9] ‘The Taliban seeks comeback in Swat’, Dawn, 5 May 2010

27. The Tribunal does not accept that the newspaper report provided by the applicant is a genuine document for the reasons set out below.

28. As noted by the previous Tribunal, fraudulent documents are easily obtainable in Pakistan. The previous Tribunal searched the website of the [newspaper] provided by the applicant [and] found the website pages to be blank, that the links led to empty pages and that only part of one edition dated [November] 2013 could be accessed. When the Tribunal discussed this with the applicant, he stated that it is a local paper and not online. However, this explanation does not explain the empty website. As well, the Tribunal considers it unlikely that a local newspaper would have reported on the abduction of five friends and noted local concern about an increase in abductions given the fighting and displacement which was occurring in Swat at the time; the Tribunal considers it implausible that the Taliban contacted the paper to provide the information in the report including that the five were abducted by “persons unknown” at that time; and the availability of a photograph of the five abducted people taken at an unspecified time prior to the claimed abduction is an unlikely coincidence. Further, the Tribunal expects the applicant would know who gave the photograph to the newspaper. The Tribunal also searched for the paper online and found no reference to the [newspaper] but did find reference to a daily e-paper called [another name] with a very similar masthead to the paper provided by the applicant. When the Tribunal raised this with the applicant, he stated that he can provide other papers under similar names (by which the Tribunal assumes he means with a similar masthead). However, the Tribunal finds the masthead so similar as to throw doubt on the genuineness of the paper provided by the applicant. Having regard to all of the concerns above, the Tribunal does not accept that the news report is a genuine document.

29. For the reasons set out above, the Tribunal does not accept that the applicant was abducted by the Taliban in May 2009 and detained for 42 days or that two of his friends were beheaded or that he was found by the Army in June or July 2009 or that the Army detained him for a further 10 days before releasing him.

    Relocation to Peshawar and return to Swat

30. The applicant claims that he remained in [Town 1] for a few days after his release and that he and his family went to Peshawar in July for three months during the fighting in Swat. When they returned home, their house and factory had been damaged and they stayed with relatives for a few days while they cleaned their house. He returned to school.

31. The Tribunal accepts that the applicant and his family moved to Peshawar during the Army operation in 2009 and that their house and factory was damaged during the fighting.

    Involvement with peace committee

32. The applicant claims that his father became the Chairman of a peace committee for his local area in 2008. He indicated that there was a large peace committee for the whole of [Town 1] which had 60 or 65 members but his father was the chairman of a committee which just covered his local area and which had seven members. He stated that the committee was called the National Peace Committee but the name was changed to the Village Defence Committee.  He claims that his father became involved with the peace committee because he was a senior tribal and community leader for his locality of 50 or 60 houses, a respected business man and spoke Urdu. The applicant claims that his father attended the district peace committee meetings as the representative of the local peace committee.

33. The Pakistan Army encouraged tribal elders to form village peace or defence committees in 2008 as part of its counter terrorism policy.[10]  The main function of the committees, also known as lashkars (militias), was to operate night patrols to defend villages or districts against attack and to provide information to the Army about the whereabouts of militants.[11] Country information indicates that there was a 40 member peace committee in [Town 1] in 2008 which held talks with the Army and militants to negotiate a cease fire and that three committees of eight people formed in [Town 1] in 2008 to ensure peace. [12]

    [10] Pakistan Institute for Peace Studies, 2011, Pakistan Security Report 2010, January

    [11] Pakistan Institute for Peace Studies, 2012, Pakistan Security Report 2011, January

    [12] [Source deleted].

34. The applicant provided a copy of a card entitled National Peace Committee (NPC) issued in September 2008 in his father’s name and which describes his father as chairman. He also provided a letter from the Chairman of the National Peace Committee dated August 2012 which states that his father is a most active member of the National Peace Committee. The Tribunal has concerns about the genuineness of the card and the letter as did the previous Tribunal. The Tribunal does not accept that a local peace committee of seven members covering a small locality within [Town 1] would have been called the National Peace Committee. Further, the letter dated 2012 which refers to the National Peace Committee is inconsistent with the applicant’s evidence that the name of the committee changed to the Village Defence Committee. Further, as raised by the delegate, it seems unusual that the card is in English if it is intended to provide identification in Swat where the locals mostly speak Pashto and the Army mostly speak Urdu (as the applicant acknowledged in his written statement dated 13 September 2013).  For these reasons, the Tribunal does not accept that the card and letter are genuine documents. The Tribunal therefore does not accept that the applicant’s father was the chairman of a local peace committee or a member of a district peace committee.

1. The Tribunal accepts, however, that the applicant‘s father, as a land and property owner, may have had a low level of involvement or interaction with a peace committee which liaised with the Army in [Town 1] in 2008 and 2009 in relation to suspected Taliban activity and community protection.  

2. The applicant claims that he participated in night watches. In his statutory declaration dated 13 September 2013 he stated that he resumed his involvement with the peace committee when he returned to Swat in 2009; he went about his normal activities during the day but if he saw anyone he thought was Taliban, he reported it to the Army using a special telephone number which had been given to members of the peace committee; and that he did night patrol three or four nights a week for five or six hours. At the hearing, he told the Tribunal that he was not directly involved with the Army but reported suspicious activity to the community elders. When the Tribunal expressed doubt that a [age] or [age] year old student would have been involved in night watches, the applicant said that everyone was working for peace and age did not matter.

3. In view of the applicant’s evidence at the hearing, the Tribunal does not accept that he reported suspicious activity directly to the Army using a special telephone number or that he had any direct involvement with the Army regarding Taliban activity in his locality. The Tribunal accepts that the applicant may have had some low level peripheral involvement with the activities of a peace committee in his locality through his father but, given his age at the time and the fact that he was still a school student, does not accept that he was an active member of a night watch or that he participated in night watches several times a week or that he had any direct involvement with the Army regarding night watch activities or reporting Taliban houses. 

4. The applicant claims that he also distributed [food] parcels. The Tribunal accepts that he may have had some involvement in food distribution. The applicant has not claimed to have suffered any harm or to fear any harm because of this involvement.

   Threats to father

5. The applicant claims that his father began to receive telephone threats from the Taliban in 2010. The callers stated that his father was still working against them and threatened to harm his family.  His father reported these threats to the Army who gave him a licence to carry a gun. The family also restricted their movements.

6. The applicant claims that his father received a letter threatening to kill him and his family in July 2011 after the Army had increased its operations and captured a number of Taliban operatives with the assistance of the peace committee and that similar letters were sent to all the members of the peace committee.

7. The Tribunal accepts that members of peace committees have received threats and have been killed in Swat. In 2010, the Taliban put up posters in Mingora warning peace committee members to quit their positions or face the consequences[13] and the applicant provided news reports of the killing of peace committee members.

   [13] The News, Pakistan  2010, Pakistan's Swat peace body says will not be "cowed down" by militants' threats, 11 November, BBC Monitoring Service, CISNET Pakistan  

8. The applicant claims that his father decided he should leave Pakistan after the threatening letter and that he travelled to Islamabad to make the arrangements for a [temporary] visa. The previous Tribunal noted that the applicant sat his intermediate exams in July 2011 and that this event might in fact have determined when the applicant began to make arrangements to obtain a [temporary] visa.  

9. Whilst the Tribunal accepts that members of peace committees received threats in 2010 and 2011, as the Tribunal does not accept that the applicant’s father was the chair of a local peace committee or a member of a district committee, it does not accept that he received threats from the Taliban in 2010 or 2011 because of his claimed position. The Tribunal accepts that tribal and community leaders may also have been threatened directly or indirectly at that time and that the applicant’s father may have been threatened in this regard and that he may have obtained a gun license. The Tribunal notes that the applicant’s father has not suffered any harm despite these claimed threats and that he still owns his properties and land in Swat, still operates a business repairing [goods he made] and still lives at least part of the time in [Town 1].

10. The Tribunal does not accept that the applicant’s family are moving around between different locations in Swat and Peshawar or that they are only sometimes returning to their home in [Town 1] and not telling anyone they are there. The Tribunal does not accept that the applicant’s father would remain in Swat and move around different locations within Swat if he was hiding from the Taliban in Swat given he appears to have the resources to move his family to an area away from Swat. Further, the applicant stated that his younger brother is attending school which indicates that the family is living openly and with some stability. The Tribunal accepts that the applicant’s family may move between Peshawar and [Town 1] but does not accept that they are in hiding.  

    Attack on house in 2012

11. The applicant claims that the Taliban fired on his family home in [Town 1] in September 2012 injuring his younger brother [Mr E]. The applicant has provided a copy of the [newspaper] dated 2012 contains a report of this attack. According to the translation provided by the applicant, the report states that “Unidentified persons attacked the house of the member of the National Peace Committee. A young man named [Mr E] was seriously wounded…the house of [Mr F] who is an important member of the National Peace Committee …we remind that [Mr F] actively participated in efforts for restoring peace in the area due to which he has been receiving threats from unknown persons for the past few days. It has also been told that [Mr F]’s eldest son, [the applicant] has also been abducted by unidentified persons some time ago..” 

12. As the Tribunal does not accept that [the newspaper] is a genuine newspaper for the reasons set out above, the Tribunal does not accept that the news report is genuine. It therefore does not accept that the applicant’s house was fired on by Taliban in September 2012 or that his brother was injured.

    Current security situation in Swat and future harm

13. The applicant claims that Swat is still insecure, that the Taliban is still active and that people associated with peace committees are still being harmed.

14. As discussed with the applicant, recent country information indicates that the security situation in Swat is much improved since 2009 although small groups of Taliban fighters are reported to have been infiltrating back into Swat from sanctuaries in Afghanistan and militant cells are reported to have been operating in Swat[14] and carrying out sporadic ‘hit and run’ attacks against army patrols and peace committee members.[15]

    [14] Rehman, Z & Walsh, D 2014, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July Rehman, Z 2014, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September

    [15] Rehman, Z & Walsh, D 2014, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July Rehman, Z 2014, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September; ‘Trouble in Paradise’, Newsline (Pakistan), 13 December

15. The Pakistan Army has an ongoing presence in Swat with more than 2,100 troops currently deployed[16]  and three cantonments being constructed. The Swat police force has increased its number from 7,000 in 2008 to more than 21,000 in 2014 and is reported to be better equipped and better trained than previously.[17]

    [16] Hashim, A 2014, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November

    [17] ‘Trouble in Paradise’, Newsline (Pakistan), 13 December

16. The Taliban has targeted peace committee members in retaliation for helping the authorities to arrest militants and destroy militant’s homes, (although one senior police officer has claimed that some attacks are due to personal enmities such as land or money disputes).[18] According to a military source, there are approximately 3,000 peace committee members in Swat and about 22 are highly placed on a Taliban hit list.[19] The majority of committee members targeted by the Taliban are reportedly prominent community or tribal leaders who also happen to be landowners or members of the Awami National Party.[20]  Reports indicate that at least ten peace committee members or leaders were killed in Swat during 2014[21] with a reported ‘spike’ in attacks between September and December 2014.[22]

    [18] ‘Trouble in Paradise’, Newsline (Pakistan), 13 December

    [19] Hashim, A 2014, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November

    [20] A secular Pashtun party which opposed the Taliban in KPK

    [21] Hashim, A 2014, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November; ‘Killing spree - Village defence committee member shot dead’ 2014, Express Tribune, The (Pakistan), 28 October; ‘Critical Threats’, 2014, Pakistan Security Brief, 14 October; ‘Peace body member, cop shot dead in Swat’, 2014, The News, 5 October 5; ‘Three peace volunteers shot dead in Swat’, 2014, Dawn News Group - Pakistan, 16 September;

    [22] ‘Killing spree - Village defence committee member shot dead’ 2014, Express Tribune, The (Pakistan), 28 October

17. The Taliban has not been able to re-establish itself in Swat because of the army’s ongoing presence.[23] There are conflicting views on the ability of the security forces to protect tribal leaders and peace committee members as attacks have reportedly occurred in close proximity to military checkpoints. The response of the security forces has at times been ineffective[24] and members of peace committees have expressed concern about the ability and willingness of the security agencies and the provincial government to stop targeted assassinations.[25]  The Army refutes claims it is unable to maintain security in the district.[26]

    [23] ‘Ibid; Rehman, Z 2014, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September   

    [24] Hashim, A 2014, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November; ‘Trouble in Paradise’, Newsline (Pakistan), 13 December

    [25] ‘Trouble in Paradise’, Newsline (Pakistan), 13 December

    [26] Ibid

18. In relation to KPK generally, the European Asylum Support Office (EASO) reported in 2015 that there were 325 terrorist attacks in KPK in 2014, mostly in Peshawar followed by Charsadda and Bannu districts. Targets included “civilians, security forces, educational institutions (such as the Peshawar army school), health workers, Shias, political leaders, tribesmen, power installations, government officials and buildings, Sikhs, places of worship, CD shops, etc”.[27]

    [27] European Asylum Support Office, 2015, Pakistan, Country Overview, August

19. The Pakistan Institute for Peace Studies reported in 2015 that 524 people were killed in KPK in terrorist attacks in 2014 comprising 375 civilians, 85 police officers, 36 Army personnel, 10 Frontier Corp, 4 Levies soldiers and 32 militants. Peshawar was the most affected area with127 attacks which killed 308 people.  There were 19 attacks in Swat killing 21 people and injuring 11. Most attacks on civilians occurred in Peshawar.[28]

    [28] Pakistan Institute for Peace Studies (PIPS), 2015, 2014 Pakistan Security Report, January

20. According to the South Asia Terrorism Portal (SATP), KPK has recorded a continuous decline in fatalities since 2010 with the exception of 2013. The SATP recorded three bomb blasts in Swat in 2015 killing three people and injuring five including one in [Town 1] which injured two people. There were no suicide attacks in Swat in 2014 or 2015.[29]

    [29] South Asia Terrorism Portal, Pakistan, >

    Having regard to the country material above, the Tribunal accepts that there is ongoing insecurity in Swat in the form of targeted attacks on the security forces and on civilians including peace committee members who are also community leaders.

21. The Tribunal accepts that the applicant’s father may be a leader in his local community. The Tribunal does not accept that he has ever been the chairman of a local peace committee or member of a district peace committee. The Tribunal accepts that the applicant’s father may have had some low level involvement with the activities of a peace committee in 2009 or 2009 and may have some ongoing association. The Tribunal notes that the applicant’s father has continued to reside in Swat and maintain his land, property and business without coming to any harm.

22. For the reasons set out above, the Tribunal does not accept that the applicant was an active member of a peace committee before he left Pakistan. The Tribunal does not accept that he will be targeted in Swat because of any limited involvement he may have had before he left Pakistan. The Tribunal notes that the applicant resided in Swat from 2009 until 2012 without coming to any harm. The Tribunal does not accept that the applicant has a heightened profile as the son of a community leader who may have some involvement with a peace committee who is also a land and property owner given that his father and other family members have not been harmed. As set out above, the Tribunal does not accept that the applicant’s brother was shot at in 2012.

23. The Tribunal accepts that the applicant may involve himself with peace committee activities on return to Swat. The country information above indicates that there are several thousand peace committee members in Swat and that those who are being targeted are reportedly prominent community or tribal leaders who also happen to be landowners or members of the Awami National Party. The Tribunal does not accept that the applicant will have that sort of profile on return and is not satisfied that the applicant faces a real chance or a real risk of being targeted.

24. The country information above indicates that the security situation in Swat is much improved; that there is a high Army presence; that the Army remains in effective control; that the militants no longer have the support of the local community; and that the militants are only able to conduct hit and run attacks on specific targets. The country information indicates that there was a spike in violence in KPK in 2014 but there has been a decline in attacks since then most probably due to a concerted Army campaign following the attack on the Army school in Peshawar. The Tribunal accepts that there are ongoing attacks but does not accept that the applicant has a profile that will make him a target. The Tribunal notes that the applicant’s father has not been harmed, making it even less likely that the applicant will be targeted.  In addition, the information above indicates that the rate of civilian casualties in Swat in 2015 was very low relative to the population which was approximately 1.25 million in 1998 and likely to be more now.[30]

    [30] Pakistan Bureau of Statistics, District at a glance Swat, >

    The Tribunal does not accept that there is a real chance the applicant will suffer serious harm or a real risk he will suffer significant harm on return to Swat because of his membership of or association with a peace committee or because of his father’s chairmanship or membership of a peace committee.

25. It has been submitted that the Taliban will also be motivated to harm the applicant because he is a member of a particular social group of wealthy individuals.  The applicant has not made any claims in relation to his wealth downplayed his father’s wealth at the hearing, stating that he has lost a significant portion of his income. The Tribunal accepts that the applicant’s father may have some standing or prominence by reason of his assets and be a leader in his local community. The Tribunal notes that the applicant’s father has not been harmed because of his position. Having regard to the evidence and findings above regarding the applicant’s profile and his father’s profile  and the country information, the Tribunal does not accept that there is a real chance the applicant will suffer serious harm or a real risk he will suffer significant harm because of his father’s wealth or position in the community.

    Pro Pakistan government and western government political opinion/religious views contrary to the Taliban

26. It has been submitted that the applicant will be persecuted because he holds pro-Pakistan government and pro-western government views and that, as the Pakistan army and other security forces have been infiltrated by the Taliban, he will not be able to obtain protection.

27. The Tribunal does not accept that the applicant faces a real chance or real risk of being targeted by the Taliban because of these views. The country information set out above indicates that the Taliban has lost its support in Swat and is unable to re-establish itself which also indicates that most people in Swat do not support the militant agenda of bringing down the Pakistan government. 

28. Further, Pakistan is a diverse country of approximately 190 million people most of whom are moderate and do not support an extremist agenda of bringing down the government. Whilst sections of the Pakistan intelligence services have been accused of supporting the Taliban in the past, and whilst the effectiveness of the police and security forces may vary, the recent intensive Army operations in KPK and FATA and the ongoing Army presence in Swat indicate a genuine intention on the part of the Pakistan state to eliminate extremism. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in Swat because he is pro the government or pro the west.

29. It has been submitted that the applicant will be persecuted because his religious views are contrary to those of the Taliban. The applicant has not made any claims in relation to how his religious views differ from those of the Taliban or why he will be harmed. The Tribunal notes that the applicant is a Sunni Muslim as are the Taliban. He has not claimed to have abandoned Islam or to conduct himself in a way that would be perceived as anti-Islam. The Tribunal notes that most Pakistanis do not share the extremist religious ideology of the militant groups in Pakistan and that the Taliban has lost support indicating that the population of Swat does not share the Taliban’s extremist religious views.

    The Tribunal does not accept that the applicant faces a real chance of serious or significant harm in Swat because his religious views are contrary to the Taliban’s views.

    Mental health

30. The applicant claims to be suffering from mental health problems which impact on his ability to relocate and has claimed that his mental health will deteriorate if he has to return to Pakistan because of ongoing insecurity. He has provided the following medical information:

    ·Letter from [Dr G] dated [October] 2013 which sets out a history as told to [Dr G] by the applicant and concludes that he is suffering from Post-Traumatic Stress Disorder (PTSD) and prescribed Mirtazapine (an anti-depressant) to help with his troubled sleep and low mood “but the anxiety and worry component of his presentation relates to his insecurity about his future and his prospects of these resolving will depend on whether or not he has to return to Pakistan”;

    ·Prescriptions from [Dr G] in 2014 for Mirtazapine, Avanza and Axit (anti-depressants) and neulactil (used to treat anxiety);[31]

    ·Letter from [Dr G] dated [September] 2014 which states that the applicant still has PTSD with heightened anxiety, bad dreams, suicidal  thinking and social isolation which is “directly related to his experiences at the hands of the Taliban”; that his mental state has deteriorated in response to his increased anxiety about being returned to Pakistan; and that his mental state would deteriorate if he had to live on his own in an unfamiliar city particularly if he could not access medication and support;

    ·Letter from [Dr G] dated [December] 2014 in response to questions from the applicant’s representative which reiterates some of the information above;

    ·Letter from [Dr G] dated [February] 2016 which states that the applicant’s PTSD appears to be worsening; he wakes at night screaming; he also has irritable bowel syndrome; he feels re-traumatised every time he tells his story; his medication has increased but his symptoms are getting worse.

    [31] myDr.com.au

1. The Tribunal accepts that the applicant may be suffering from PTSD, depression and anxiety but does not accept that these are “directly related to his experiences at the hands of the Taliban”. For the reasons set out above, the Tribunal does not accept that the applicant was kidnapped or harmed by the Taliban in the past or that he faces a real chance or a real risk of such harm in the future. The Tribunal does not accept that his fears of future harm are well founded. The Tribunal accepts that the applicant may have experienced a high level of insecurity in Swat especially in 2009 and may have witnessed killings and other violence during this time and notes that the security situation is much improved.  

2. The Tribunal is satisfied that the applicant was able to participate fully in the hearings and give his evidence. The Tribunal has taken the applicant’s mental health condition into account when assessing his evidence. The Tribunal has not relied on problems with recall or lack of detail or minor inconsistencies in the applicant’s evidence which may be attributable to depression and medication.

3. According to country information available to the Tribunal, mental health issues are reportedly increasing in Pakistan, due in large part to the level of insecurity,[32] and reportedly affect 10-16 percent of the population[33] with anxiety disorders the most common mental health issues.[34] Mental health services are limited and the number of psychiatrists and psychologists is about 600 for a population of 190 million, or roughly one for every 315,000 people.[35] The head of the Pakistan Mental Health Association noted in 2011 that there were four mental health hospitals in Hyderabad, Lahore, Peshawar and Mansehra with a total capacity of 3,000 beds and that small psychiatric units attached to teaching hospitals and private psychiatric hospitals had a further capacity of about 4,000 beds and that “there had been a longstanding demand for a meaningful investment in the mental health sector, development of workforce and infrastructure”.[36] The World Health Organisation  (WHO) noted in 2005 that Pakistan spent only 0.4% of the total health budget on mental health and that the main sources of funding for mental health care are “out of pocket expenditure by the patient or family” and “social insurance and private insurances”.[37] Anti-depressants such as Prozac are popular and widely available[38] and online sources indicate that antidepressants such as Mirtazapine are produced and sold in Pakistan under various brand names.[39]

   [32] Qasim, M, 2012, ‘Mental health most neglected field in Pakistan’, The International News, 9 October

   [33] Mahmood, A, 2014, ‘Mental illness in Pakistan: The toll of neglect’, Dawn.com, 20 September

   [34] Khalily, M T, 2011, ‘Mental health problems in Pakistani society as a consequence of violence and trauma: a case for better integration of care’, International Journal of Integrated Care 2011 Oct-Dec, 7 October

   [35] Abbot, S & Shahzad, A 2012, ‘Millions in Pakistan suffer mental scars from militant violence, but few get help’, Associated Press, 26 July

   [36] Alam, Mukhtar 2011 ‘100 per cent rise in mental disorders’, Dawn, 9 October 

   [37] World Health Organisation 2005, ‘Mental Health Atlas’, WHO website

   [38] Kamal, R, 2013, ‘Anti-anxiety pills in Pakistan: Mama’s little helper’, The Express Tribune, 26 May

   [39] ‘MIRTAZEP 15MG TABLET’ (undated), OnlinePharmacy.pk; Ogbru, O. (undated), ‘Mirtazapine, Remeron, Soltab’, MedicineNet.com; Ramargon’ 2011, Lisko Pakistan

4. The Tribunal is satisfied that the applicant will be able to access mental health treatment and medication in Pakistan. The information above indicates that specialist mental health services are available, including in Peshawar, and that medication for depression and anxiety is widely available. The applicant comes from a relatively affluent family and the Tribunal is satisfied that he will be able to pay for such services if necessary.

5. Further, a lack of specialised mental health services or a lower standard of care in Pakistan does not of itself give rise to persecution or significant harm. Whilst persons suffering from PTSD or depression or other mental disorder may comprise a particular social group in Pakistan, to amount to persecution, the harm feared by the applicant must be because of his membership of that particular social group.[40]  The evidence before the Tribunal does not indicate that the Pakistan government provides limited mental health services because it is motivated to harm persons who are depressed or otherwise mentally ill. Consequently, any inability to access specialist mental health care does not amount to persecution under the Convention. Nor does it appear to amount to significant harm. The evidence before the Tribunal does not indicate that the Pakistan government has failed to provide sufficient resources or mental health services because of an intention to cause pain or suffering or extreme humiliation. Under Australian complementary protection law, mere negligence or lack of resources, without an intention to cause such harm, does not give rise to cruel or inhuman or degrading treatment or punishment.[41]

   [40] Applicant A v MIEA, per Gummow J

   [41] See SZTAL v MI & Anor

   Refugee assessment

6. Having regard to all of the evidence and findings set out above, the Tribunal is not satisfied that the applicant faces a real chance of suffering serious harm now or in the reasonably foreseeable future in Pakistan from the Taliban because of his actual or imputed political opinion or his religion or his membership of a particular social group of his father’s family or peace committee members or prominent families or wealthy individuals or community leaders or persons with poor mental health, separately or cumulatively.

   Complementary protection assessment

7. Having regard to all of the evidence and findings of fact above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, there is a real risk he will suffer significant harm from militants such as the Taliban because of his father’s position in the community or membership of a peace committee or his own membership of a peace committee or as his father’s son or because of his political views or moderate religious beliefs or his mental health or as a member of a prominent family or as a wealthy individual or as a community leader.  

   CONCLUSION

8. 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).

9. 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).

10. 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

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

    Rea Hearn Mackinnon
    Member