1413873 (Refugee)

[2017] AATA 651

1413873 (Refugee) [2017] AATA 651 (24 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413873

COUNTRY OF REFERENCE:                 Pakistan

MEMBER:Rachel Westaway

DATE:24 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 24 March 2017 at 4:27pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Political – Actively opposed Taliban – Assisted Army as peace committee member - Longstanding support for ANP – Support for education of girls - Mental health issues – Relocation not possible – No State protection

LEGISLATION
Migration Act 1958, ss

36(2)(a), (aa), (b), (c).   65
Migration Regulations 1994, Schedule 2 CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 [in] December 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 18 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   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, is unwilling to return to it.

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.

   Country of reference

10. The applicant has provided evidence of his Pakistani citizenship including in the form of a Pakistani passport in his name. The tribunal accepts that he is a Pakistani national and has assessed the applicant’s claims against that country.

11. The issue in this case is whether the applicant is owed protection obligations by Australia. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Claims

12. The applicant applied for a protection visa [in] December 2013 and claims he was born in [village], Pakistan. He claims to be of Pashtun ethnicity and a Sunni Muslim. He is married with [number] children; his wife and children are in Pakistan. He also confirmed that his parents and [a] sibling live in Pakistan in [village]. His wife and children live in Karachi. The applicant was born on [date]. The applicant has travelled extensively as he worked on board ships as a seaman. He claims he abandoned his ship [in] October 2013 after docking in [Australian port]. He applied for a protection visa a short time afterwards.

13. The applicant is [age], married with [number] children who were born on [dates]. They reside in Karachi. They have lived there since December 2012. They moved to Karachi because he was attacked and so they all moved. The attacked occurred in December 2012.

14. The applicant fears returning to Pakistan because:

    ·     He has a long history of supporting the ANP and has been an active member since he was at college

    ·     At college he supported the Pakhtoon Students Federation

    ·     His family have an established background in being educators. His [sibling] and [Relative 1] are government school [employees] for primary schools and their respective [spouses] are primary school [employees]. The applicant’s wife is a private school [employee] in [village]. 

    ·     The applicant claims the problems he has experienced and fears stemmed from the end of 2006 and the campaign against female education headed by [name] who through an illegal radio station targeted female education and women who worked. His [Relative 2] and wife received letters to tell them to stop working however they refused.

    ·     The applicant claims he and his [sibling] were threatened in 2008 as they did not stop their [spouses] from working. The Taliban threatened they will kill him, then their wives and then their children. The applicant stated that he and his [sibling] asked their [spouses] to stop. They stopped formal work but continued to educate girls secretly in their [building].

    ·     He claims that [in] May 2008 he and his [sibling] and their [spouses] were named on the radio and [name] asked his followers to kill the family because they had ignored the threats.

    ·     [In] May 2008 a missile was fired into the applicant’s [building]. The applicant and his [sibling] could not defend themselves. They reported the incident to the ANP who assured them that plans were afoot to start and attack against the Taliban.

    ·     [In] June 2008 Taliban members came to the applicant’s house and took him and his [sibling]. They were given [punishment] for disobeying orders.

    ·     The applicant claims his [Relative 1] and [sibling] continued to [work]. Their schools were burnt down by the Taliban. The applicant claims his father, [siblings] and [relatives] attended the school and tried to collect assets and records. The asked the ANP for help. Against the Taliban.

    ·     In 2009 the ANP launched a major offensive against the Taliban. The applicant claims his family were the first to help. They were informants and identified Taliban members and their houses. He claims he attended many meetings with the army with the objective of restoring peace in [village].

    ·     As the area was being developed again and supported by NGOs such as [names], meetings would be held in the [building] originally used as a school in the past. The applicant claims he would escort groups through the ruined facilities and his [relatives] were offered jobs with these organisations.

    ·     Up until November 2012 there was an army presence.

    ·      [In] November 2012 the applicant claims he received a call from the Taliban threatening him due to his support of the ANP claiming he is a supporter of the United States because of his work against the Taliban and that they will kill his [siblings] and his children.

    ·     The applicant claims he informed the army who issued him with a security pass and gun licence for protection.

    ·     [In] December 2012 a gunman opened fire on the applicant’s car however he escaped unharmed.

    ·     The applicant relocated to Karachi with his wife and children. He left them there and boarded a ship [in] February 2013. He deserted it [in] October 2013 in [Australia].

    ·     He fears he is known to the Taliban and their sympathisers and he will be killed if he returns to Pakistan.

    ·     He stated that the police and army cannot provide adequate security.

    ·     He stated that his wife and children have escaped from harm because his wife is not identifiable as she wears a Niqab when she leaves the house and his [Relative 1] protects her.

15. Submissions from his representative contain relevant country information and argue that the applicant’s fears are based on his:

    a.Actual/imputed political opinion opposed to Taliban and extremists, as liberal/un-Islamic/supportive of Western ideas, due to his and his family’s membership and support of ANP and his relationships with active members and position holders of the ANP due to his involvement in peace committees/village defence committees; his support and membership of the Pakhtoon student’s federation, being a member of a NGO such as [names] when assisting to help rebuild SWAT and being a member of the village Defence Committee within the [name] division of the VDC

    b.Religion as liberal Sunni Muslim who has fought for the education of women

    c.Particular social group membership son of a prominent upper class of the SWAT village whose family has a long history of supporting the ANP who fought in opposition to the Taliban 

16. The applicant also claims protection under Complimentary Protection provisions based on substantial grounds for believing that he will be subjected to serious harm, torture, inhumane treatment and/or brutal murder if he returns to Pakistan.

    Submissions

17. The original decision record was provided to the Tribunal and the applicant and his representative provided the following submissions which the Tribunal has considered:

18. A submission dated [in] March 2016 folios 50-172. This included a letter addressed to the applicant welcoming him as a volunteer to inclusion [city], a receipt to the red shield appeal, tax assessment, receipts for payment to the ATO, PAYG income tax instalment, Australian identification documents and identification to the [name] Division of the VDC, a letter from [name], a member of the provincial assembly of the KPK confirming the applicant is a senior member of the town and active in the ANP and targeted by the Taliban and was fired upon by the Taliban, certificates of appreciation for assistance in the area by the applicant or his family members in the SWAT region. Letters of support and endorsement for the applicant from the Village Defence Committee and the Village Council detailing his work. A letter from [a] School [leader] confirming the applicant (her [relative]) was a supporter of female education and put his life in danger by arranging transport for girls to school. She provided copies of her identification and her husband’s identification that show they are both [occupation]. A letter confirming the applicant’s wife was a [occupation] from [date] March 2007 to [date] February 2008. A letter from [a] (welfare) Committee confirming the applicant worked for this NGO and others. A letter from the ANP confirming the applicant was a founding member for his village of [name] and that he was targeted by the Taliban. An immunisation card for the applicant’s child presented as evidence that the applicant’s wife, child and himself resided in SWAT during 2010-2011. Evidence the applicant was living in SWAT as his ID card is dated 2009. Evidence that the applicant’s wife attended a hospital in SWAT despite country information claiming they relocated. This is dated February 2010. Newspaper articles dated 2014 to current showing the deaths and targeting of people and presented as evidence SWAT is still dangerous. A range of medical notes were provided which were not translated and the relevance was not explained. Some reports had the name which appears to be [name] on them and this is the name of the applicant’s wife. The reports appear to be medical records and treatment and prescription details from a psychiatric clinic. They are dated from 2008 to July 2012. The DFAT Country Report for Pakistan dated 15 January 2016 was supplied as well as WHO-AIMs report on mental health in Pakistan. In essence it describes the mental health system in Pakistan as lacking sufficient resources and there is a moderate concern about inequality of access for minority groups. Another report was provided on access to essential medicines in Pakistan issued by the Aga Khan University and funded by WHO and dated August 2011. In essence the report identified an issue in access to medicines for poorer people and a problem with counterfeit and black market medicine.

19. [In] March 2016 the applicant provided the Tribunal with photos supporting the applicant’s claims that he and his wife were involved in NGO activities.  In February 2017 the delegate provide additional news reports on continued violence in Pakistan initiated by the TTP.

    Evidence taken at hearing

20. The applicant provided the following information at hearing. He said his family believe in education. His [sibling] and [spouse] and his wife are [occupation] and his [relative] and his wife are also [occupation]. They [worked with] girls in Pakistan. They have been [working] since 1993/94.

21. The applicant confirmed that he was raised in [a] village of the SWAT area of KPK.

22. The applicant’s wife started [working] in 2007 in a private school called [name]. She is a [occupation] and had a paid full time position from 2007-2008. The applicant stated that she left the role because of the Taliban. He said that they would send warning letters and she felt it was hard and the Taliban came to their home and threatened them. He confirmed that bothy his wife and [relative] left their [occupations] because of this. The applicant said he and his [Relative 1] asked their wives to stop [working] but they were so upset for the children that they asked the husbands to collect the children and take them to their [building] and educate them.  He said it was only girls. The Tribunal asked the applicant how many girls did they educate and he said possibly 100 and less than 200.

23. The applicant confirmed that the Taliban targeted all schools which educated girls. He said that there were [number] main schools in his area that were targeted. The applicant was asked questions about these schools and he demonstrated a clear and detailed knowledge of them. He said that when the schools closed down, they went door to door to the families with girls and explained that it was important that they received a basic education like writing your name. He confirmed that there was no charge.  It was offered [number] days a week, [number] hours per day. Around [number] students would come at any one time. He said that everyone was afraid, it was done secretly, but it was a small village and everyone knew everyone and they were careful who they approached.

24. The Tribunal asked the applicant how many people lived in his village and he said that they don’t count the children so there were about [number] living in the village.

25. The Tribunal asked the applicant how long he did this for and he said it lasted for [number] months and then the announcement on the radio occurred and they were told just kill them [in] May 2008. [Name] announced on radio. The applicant stated that he thinks they have strong networks and it was easy for them to come to know about the [work].

26. He said that his role was to [details deleted]. The applicant confirmed that he has studied [course] as well.  He stated that at that point in time everyone lived together. He said that even though they stopped [working] completely on 13 May 2008 the Taliban aimed a missile into the [building] and it was completely demolished. He explained that it was a [type of] missile. No one was hurt and no one was in the [building]. The [building] is separate to the living quarters. The Tribunal asked the applicant if he had pictures of the damage and he said no.

27. He said he was unable to do anything. The applicant went to the local politicians to discuss the matter. They discussed how to try and bring peace into the area. The applicant said that [in] June 2008 he and his [sibling] were taken by the Taliban and [punished]. He said that their [spouses] were at home. He said that they could not move and following the [punishment], they announce that anyone who goes against the Taliban will receive the same punishment. He said that members of his community took him and his [sibling] home. The applicant suggested that because his family were well known in the community and supported female education they were targeted.

28. The applicant said that for the following [number] years from July 2008 he worked on ships. He said that he returned in March 2009. During this time Taliban and army were unsuccessfully trying to negotiate peace and then the army took action against the Taliban.  The school was burnt down in 2008 and his [sibling] and father brought the internal documents back home to save them. Everything was paper based.

29. The applicant explained that following the [punishment] and on the advice of contacts in the army he took it as a lesson and they, along with many others joined the IDP community (internal displaced people). They moved to [location] which is [number] hours from their home. He confirmed that the whole family left and they remained there for almost three months. In August 2009 the army said they could start to return so they did. He said that the army organised check points at each village and check point. He said that the army was there and so nothing happened.

30. [In] November 2012 he received a call from a person from the Taliban. They accused him of helping NGOs, ANP and female education and they said he helped the Pakistan army and he won’t be able to leave. The unidentified person said you, your [sibling] [spouses] and family, will not live. The applicant said he went to his contacts in the army and told them about the call. They arranged a gun licence so that the applicant can protect himself.  This was sent to him via text on his personal mobile phone.

31. Members of the army invited the applicant to a meeting and said he spoke the same language as the Taliban. Their objective was to bring peace to the community so a group of local people came together to assist of which the applicant was one. They organised a defence committee and shared information with the army. He said he was free and volunteered his time however by this stage his brother was busy working in a government job. There was night watch and the applicant did this. It was at night time only.

32. When he had work on the ship he would do this but if he returned and there was no work he would volunteer his time. He said that it was only on an as needs bases other than night watch which was every night when he agreed to be scheduled on. He said he would also identify known Taliban houses.

1. The applicant said that everyone knew each other. They were from the same community.  The Tribunal asked the applicant then if they knew each other, did he know who carried out the ]punishment] and he said that their faces were hidden when they gave out the [punishment]. He confirmed that there were [number] members at that point living in the community. He stated that he couldn’t recall all of them. The army would destroy their houses once it was cornered off. The Taliban sympathisers/members had escaped from the area and it was just the houses that remained and were destroyed by the army.

2. The Tribunal asked the applicant about his family’s profile as members of the Swat community. The applicant stated that he is quite wealthy compared to the others in the community. He said that they made their money through fields and farms. They own a significant amount of land. They grow [crops] and other vegetables. He said that people consider wealth to be in the land that they own.

3. The Tribunal asked the applicant if his family have remained in Pakistan and he confirmed that they have and they are looking after the land. The applicant’s father is still alive and his mother. The applicant’s confirmed that his [sibling] still lives there with [spouse]. His [sibling] is a works for the government so [sibling] cannot leave but at the time of the problems [sibling] hid. [Sibling] lives with [parents]. [Sibling] goes to work and then comes home. [Sibling] has a small gun that has been given to him for safety. They live in SWAT.

4. The Tribunal put to the applicant that his [sibling] and other members of the family have a similar profile to him and have remained in Pakistan and nothing has happened to them. This leads the Tribunal to question whether the applicant faces a real risk/chance of harm should he return. The applicant said that maybe they haven’t had a chance to target his [sibling] and it is [luck].

5. The applicant was asked about his involvement in the ANP. He said that he is pro Pashtun – everyone is involved in this. He stated that everyone follows the ANP because they want to bring peace to our area for Pashtuns. He said his family was the first family in his area to be involved and had a good profile. He said that they wanted to support the community.  The Tribunal asked the applicant what his or his family’s positions in the ANP were and he confirmed that they were supporters and did not have any specific roles. He said that they along with others helped keep peace and helped development in their local area.  The applicant said that he asked what the community needed and our family would help with donations or organise events.

6. The applicant said that from the time he was at college he was involved in the Pakhtoon Students Federation. He said that he joined this during student life but he is no longer a member because it is only for students.

7. The Tribunal asked the applicant about his involvement in NGOs. He stated that in 2009, the SWAT was completely destroyed and so he volunteered with them to help rebuild SWAT – there was no membership. He personally assisted by identifying people that needed help. He would arrange food and shelter for people. There was no system of membership, you just go and help. They identify leaders and high profile people who had the capacity to assist. The applicant provided pictures of his wife and other NGOs at the time they were rebuilding SWAT. The applicant was asked about why he remained in SWAT given he had the financial means to go to Karachi or other big cities. He was asked why he didn’t you leave SWAT when the mass migration occurred in 2010. The applicant said that he had faith in the army and everyone wanted to remain and his main source of income was through farming so if his family left they wouldn’t be able to control their land. The applicant said that IDPs weren’t allowed to enter Punjab at the time. The applicant supplied a copy of a newspaper advising that IDPs weren’t allowed to go into Punjab.

8. The Tribunal asked the applicant about his health and he said that he had mental health issues and he did a medical assessment and he scored [number] which was very high. He said it was to do with his mental state.  He said he was disturbed when he arrived and couldn’t remember if he took his medication. He claims he cannot sleep properly and sometimes he doesn’t want to speak.  He said sometimes he increases the sound of his voice. The Tribunal noted this but confirmed he was easily understood. He said that he in Pakistan they don’t have services to assist people with mental health issues.

9. He said he noticed his wife and she was very stressed and suffering as well. She would [behaviour deleted].  The applicant confirmed his wife has ongoing medical treatment.  

10. The applicant said that Pashtun people are very strict and very sad but he related that to the situation they have been through. The applicant’s wife takes medication and she is passing her time. When she takes her medication she is able to look after their children.  She lives with the applicant’s [Relative 1] in Karachi. He stated that his [Relative 1] originally supported him but he now has work rights and so he is able to send money to his family.  He said that the proceeds of the land go to his [sibling] and father because he does not work. He said the money is for everyone because they all live together. The Tribunal asked if the family will support his wife and he said he sees this as his responsibility.

11. The applicant confirmed he sees a psychiatrist and counsellor and his GP.  The applicant said his GP is [name], his psychiatrist is called [name], and he receives counselling from [name]. He claims to be seeing these people since he has been in Australia.

12. The applicant confirmed he is on medication for his [medical condition].  He has also been prescribed an antidepressant. He provided a packet of the prescription medication for the Tribunal to view.

13. The Tribunal put to the applicant that given his claims pertaining to his profile and his fear of the Taliban I am concerned as to whether he would be harmed as his wife has remained safe. The applicant said that his wife doesn’t go out very often and remains at home due to her depression. He stated that if she does go out she is covered and therefore she is not seen or identified. He confirmed that she has been living in Karachi since December 2012.

14. He said that [in] November 2012 following the call from the Taliban, the army issued him with a gun licence. He was surprised and worried as he did not think it was enough for him to protect himself. [In] December 2012 he claims he was targeted by members of the Taliban who started firing at him. He said he was driving normally and saw a person waving and then they started shooting. His back window of the car was hit and damaged.  

15. His father said to him that he should move for safety and that we can’t all go so you should go. He said that in the early morning following the shooting he took a vehicle and they travelled towards Karachi. He said it took him 30 hours and they took their children. He moved straight into his [Relative 1]’s house. He got his job on the ship and when asked how he managed to secure work he said he just registered and contacted them and they said you have been selected and so he went.

16. He said that it was hard to rent property in Pakistan and agents require two witnesses for the documents and such documentation may lead to him being identified.

17. The applicant confirmed he came to Australia in 2013. The applicant was asked why he didn’t seek protection at that time.  He said that the Captain said no one was allowed off shore. On the second trip they weren’t allowed and on the third he escaped during the night. It was October 2013.

18. The Tribunal noted that in the time the applicant has been away from Pakistan his father and [sibling] they have not been targeted. The Tribunal put this to the applicant and he claims it can happen. The Tribunal asked the applicant why he couldn’t live with his wife in Karachi. He said that in Pakistan it is impossible. She stays inside. Anyone can recognise him. He again referred to the situation with renting and stated he could be easily identified because witness must sign rental documents and he stated that they must be local people from his own village. The Tribunal stated that his [Relative 1] or family members could be a witness to avoid this. He said this procedure was introduced to reduce terrorism. Two people must be witnesses and referees for someone to rent a house.

19. The applicant said that there are many members of the Taliban in Karachi and it isn’t safe. He said that it is hard for him to survive. He must go to work but would now have lost his ships job and if he found another job he could be recognised.  The applicant claimed that everyone is connected.

20. The Tribunal spoke to the applicant about the reasonableness of him returning to Pakistan and relocating to an area where he would not have a profile with the Taliban as he claims he does.

21. The Tribunal put options of relocation to the applicant such as Lahor and spoke about the general level of violence in Pakistan and invited the applicant to comment.  The applicant stated that recently in Lahor, the Sri Lankan cricket team was targeted and that nowhere is safe. He said that in Islamabad there was an Australian family who was also targeted. He said that no place that is totally safe for him in Pakistan. He said relocation is difficult for him because of his language and appearance and dialects different. He said he will be recognised as Pashtun and different and it will cause attention and he can be found out. He said that Lahor is totally different. He would need to work and it would be hard to find a job.

22. The Tribunal stated that there are hospitals in Lahor and medical services and there is a significant Pashtun community. The applicant said that there are many facilities not available in Lahor. He said that if he moves he will need accommodation and two people to witness and no one to go as a witness. He doesn’t know where the information may go and he said that people are generally are suspicious.  The Taliban connection is strong everywhere and it is easy to identify and target him.

23. The applicant was asked to provide any further evidence – he stated that he belongs to a well-known family. In his blood is the need to help and serve people as they were taught this from children and through their community leaders. He said he really wanted to bring peace everywhere.  He was there to help people. He has respected Australian law and works and pays tax. He wants to serve the community. He stated that he has provided evidence of such.

24. The Tribunal discussed relocation to Lahor in further detail with the applicant. The Tribunal put country information to the applicant and said that mental health services are assessable. The applicant stated that they are difficulty to access and there is a ceiling on prescription drugs. He stated that relocation to Karachi was only ever temporary and that he has only one extended family member there and that his wife is quite ill. He stated that he is worried whether health treatment is available if he relocates and there is no support and no safety net and he cannot just jump on a ship and get away. He said he is now considered a deserter so he can’t return. He said that he comes from a noble family and his forefathers were heavily involved in the ANP and they approached his family for this reason and that is why he is now targeted.

    FINDINGS AND REASONS

    Credibility and mental health

25. The tribunal notes that the departmental delegate found aspects of the applicant’s claims not to be credible based on contradictory country information and the delegate placed limited weight on the documents provided by the applicant due to the high prevalence of document fraud. However, having reviewed the evidence before it, the tribunal finds the applicant’s claims are credible. The applicant’s evidence regarding key events has been consistent and detailed and supported by the documentary evidence. 

26. The tribunal notes that various documents have been provided in relation to the applicant’s wife’s mental health and his won. These documents indicate that the applicant’s wife was located in SWAT during the period in which the delegate did not accept. The medical reports also show the applicant is being treated for mental health issues and is on prescription medication.

27. The tribunal accepts on the evidence before it that the applicant is suffering from symptoms of [certain conditions] and is taking medication for these conditions. The tribunal has taken the applicant’s mental health and its impact on his evidence into account. The tribunal found, however, that the applicant was able to understand and appropriately answer questions at hearing, often in detail, and finds that he was able to effectively participate in the tribunal hearing.

    ANP membership

28. Given that one of the ANP’s main support bases is Khyber Pakhtunkhwa (KPK), the applicant’s home province, the tribunal accepts as plausible that the applicant comes from a family of known ANP supporters and/or members, including the applicant’s father and [sibling]. The applicant provided extensive oral and documentary evidence to support his claim that he worked closely with the ANP. The tribunal accepts these claims and accepts that the applicant’s family may be known in the community as an ‘honourable’ family as he has claimed.

29. The applicant gave a plausible account of his own involvement in the ANP. The tribunal accepts that he joined the party in college. The tribunal accepts the applicant’s evidence regarding his voluntary work with the ANP in-between his time at sea plausible and relatively detailed. The applicant did not indicate that he held any senior position within the ANP and the tribunal finds on the basis of the above described activities it has accepted that the applicant was a low level ANP member/supporter.

    Past threats and harm from TTP for educating women

30. The applicant’s written statements and oral evidence refer to his and his family’s support of female education in [name] village and their roles as educators in schools. The applicant claims that he was threatened in 2008 and told to stop his wife working as a [occupation] however they secretly continued at home. He claims in May 2008 he, his [sibling] and their [spouses] were publicly named on radio for their work and because they had ignored threats. A missile was launched into their studio in which they taught the children and was destroyed. In June, he claims the Taliban took him and his [sibling] and gave them [punishment] for disobeying orders. He claims around this time, the schools were completely destroyed.. Country information supports the fact that he Taliban were against female education and destroyed schools. The tribunal is willing to accept that the applicants were educators based on the documentary evidence supplied to the Tribunal and the applicant’s detailed and credible knowledge.  The Tribunal also accepts that the applicant’s home was targeted and he and his [sibling] received [punishment] for disobeying the Taliban’s directives.

    ANP, NGO and defence committee involvement

31. At the hearing, the applicant claimed that when he was present and not on ships working he was part of a peace committee and involved in several NGOs. He provided substantial documentary evidence to support these claims and detailed oral evidence. He stated that it involved finding food and shelter for people and rebuilding the community. He would identify people who had the ability to assist and that he was going with the Army as a member of the peace committee.

32. The tribunal accepts on the evidence before it that the applicant worked with NGOs in the way of rebuilding Swat with lashkars/VDCs/peace committees and had developed a profile as a community leader.  

33. The tribunal accepts as plausible that the applicant was a member of a family of educators and knew many members of the community and as such were profiled even more. Therefore, given the Tribunal accepts that the applicant informed the army of the Taliban families this information would be perceived as significant to Taliban operatives and would enhance his profile as a target.

34. The tribunal has had regard to country information set out below and his involvement in the VDC/peace committee and accepts as plausible that the Taliban knew of his involvement and as such made a threatening call to him and then attempted to shoot him. 

35. The tribunal accepts that the applicant and his family were the first to help the ANP in April 2009 when the ANP launched its major offensive against the Taliban. Whilst the Tribunal notes that the delegate did not accept that the applicant remained in SWAT during this period, the Tribunal has additional and significant evidence to support that he and his wife were there.  Country information supports his evidence regarding displacement of Swat residents due to Army operations[1] and that army operations against the Taliban were going on at this time.

    [1] Washington Post ‘Pakistani Forces Retake Swat Valley’s Largest City from Taliban’ (31 May 2009) >

    The tribunal accepts as plausible that the applicant was required by the Army to participate in a ‘lashkar’ by rebuilding the village, informing on the Taliban and identifying local community people to support them. Country information confirms that such lashkars, or village defence committees (VDCs) or peace committees were established in 2008 to assist in countering the return of militancy to the area. The tribunal accepts as plausible that the applicant may have provided information to the Army about local Taliban.

36. It is plausible that the applicant received a call from the Taliban [in] November 2012 threatening him due to his support of the ANP and based on the findings above regarding his support and involvement in defence committees.

37. The tribunal accepts on his plausible and relatively detailed evidence that the applicant was shot at in his car but escaped unharmed [in] December 2012.   

    Karachi     

38. The tribunal has accepted that the applicant received a threatening call from the Taliban and as such relocated his wife and [number] small children to Karachi [in] February 2013 and took work on a ship which ultimately led him to Australia. The applicant provided a plausible and detailed account of these events.  The applicant stated that because his wife wears a Niqab she was not easily identifiable and has remained safe. She lives with the applicant’s [Relative 1]. The applicant provides money from Australia to support his wife and children. The applicant’s evidence indicates that for the short period of time whilst he was in Karachi before his ship departed, he did not face any problems or harm.         

    Future risk of harm upon return to Swat/KPK

39. Given its above findings regarding the applicant’s profile and past experiences, the tribunal has considered whether the applicant faces a future risk of harm from Taliban upon return to Swat for the reasons he has claimed, including his actual/imputed political opinion in opposition to the Taliban and extremists. In making its assessment, the tribunal has considered country information provided by the applicant’s representative as well as other independent country information set out below.

40. The tribunal has considered the applicant’s likely activities upon return to his home area. The applicant has given evidence that he will continue his ANP activities and that, due to his opposition to the Taliban, he will continue to participate in the VDC/peace committee and that I is “in his blood to help”. Furthermore, the Tribunal has considered the applicants claim that he will want to return to Swat and not Karachi as his livelihood and family are there. Given the applicant’s history of ANP support as well as his family’s history of ANP support, the tribunal accepts that that the applicant will continue to be a member/supporter of the ANP upon return to Swat or Karachi. The tribunal also accepts on the evidence before it that if the applicant returned to Swat, he would continue to undertake activities on behalf of the VDC,  provide assistance to the Army in this context in accordance with his own values.

1. For the following reasons, the tribunal is satisfied that a real chance of serious harm exists if the applicant were return to his home area of Swat Valley, for reasons of his actual/imputed political opinion due to his membership of a laskhar/VDC/peace committee and his profile as a supporter for the educationr of females.

2. DFAT reports that the most potent security threat in Pakistan remains the Taliban insurgency based in FATA and Khyber Pakhtunkhwa or KPK which, combined with the war on terrorism, has claimed more than 57,000 lives since 2001 in Pakistan.[2] However, as discussed with the applicant at hearing, DFAT also states that, while Pakistan continues to face security threats from terrorist, militant and sectarian groups, military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country since the commencement of the counter-terrorism military operation Zarb-e-Azb in June 2014. DFAT reports that this trend increased over the course of 2015.[3] According to DFAT credible sources have reported a 75% reduction in the number of terrorist attacks from September 2014-September 2015.[4] The Pakistan Institute for Conflict and Security Studies (PIPS) Annual Security Assessment Report for 2015 comments that the security situation in KPK improved substantially during 2015 with an almost 70 per cent reduction in militant attacks compared with 2014, returning to the status of 2007/08 when this wave of militancy picked up momentum. The report comments that the substantial improvement is directly linked to military operations in FATA as well as measures adopted under the National Action Plan.  The report notes, however, that incidents of target killings continued to occur in KPK with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015[5].

   [2] DFAT Country Information Report Pakistan (15 January 2016).

   [3] DFAT Country Information Report Pakistan (15 January 2016).

   [4] DFAT Country Information Report Pakistan (15 January 2016).

   [5] Pakistan Institute of for Conflict and Security Studies, Annual Security Assessment Report, 2015, pages 26-29.

3. Other independent information before the tribunal also indicates that, despite the defeat of militants in Swat (who operate under the umbrella of the TNSM which, as noted earlier has been operationally linked to the Taliban, or Tehrik-e-Taliban Pakistan (TTP)) by the Pakistan military in 2009, sporadic attacks by the group against military and civilians suspected of cooperating with the military, including peace committee members, continue.[6] 

   [6] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at >

   A May 2014 report by the Voice of America on Pakistan military operations targeting TTP strongholds in neighbouring Buner District, noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014, were a ‘clear indication of militant presence in the region’.[7] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[8] who stated that the Taliban in Swat were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region. Cloughley characterises the Taliban in Swat as being ‘down but…not out’.[9] The TTP’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House (in 2013) that the Taliban have become active in Swat again.[10]

   [7] Jan, S 2014, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May <

   [8] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Cloughley, B 2014, ‘It’s Time to Strike’, The News International, 19 May <

   [10] ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’ 2013, Pakistan Today, 17 September <

4. There is also evidence of militant attacks against peace committee members.[11] Since July 2014, there is information that Taliban militants remain active in the district and continue to carry out sporadic ‘hit and run’ type attacks against peace committee members and army patrols.[12] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[13] Over the same time period, small groups of Taliban fighters have been infiltrating back into Swat from sanctuaries in the Afghan provinces of Kunar and Nuristan, and militant cells have been operating in the Kabal, Matta, Charbagh and Miadam areas of Swat.[14]

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

   [12] 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 <

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

5. Country information also indicates that in September 2014 a curfew was imposed in areas of Swat following the killings of several peace committee members by militants.[15] A September 2014 article in Dawn newspaper indicates that on 15 September 2014 the head of the Gul Jabba village peace committee was gunned-down in broad daylight near a check-post manned by security personnel and the same day two peace committee members were killed in Bara Bandai (a neighbouring village).  The article comments that over the last three years at least 30 members of VDCs or peace committees have been gunned-down in Swat.  These killings are described as an ongoing process of retaliation for helping the authorities arrest militants and destroy their houses.  The article concludes that continuing attacks are belying the military’s claims of having secured the area from militants and that experts say the Taliban will not be able to regain the hold it had on the Swat valley from 2007-2009 but are likely to restrict their activity to hit-and-run tactics, an ideal guerrilla warfare approach in Swat’s rugged terrain.[16]

   [15] ‘Indefinite curfew continues in northwest Pakistan’s Swat district’ 2014, The Economic Times, 18 September <

   [16] 2014, Dawn, Swat: an unquiet calm, 21 September.  Sourced at <>

   An investigative report by Al Jazeera in November 2014, suggests the number of village defence committee (VDC) fatalities in the Swat Valley is much higher than reported by the military and other sources,[17] referring to at least 22 VDC members having been killed in targeted attacks across the valley that year alone. 

   [17] ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014, available at

6. Military spokesperson Lieutenant-Colonel Aqueel Malik has stated that there are approximately 3000 peace committee members in Swat, of whom 22 are highly placed on a Taliban hit-list. According to Lt-Col Malik, the Taliban target tribal leaders because they are ‘soft targets’ and peace committee members because ‘these people worked closely with law enforcement agencies [and the army] in order to end terrorism.’[18]  According to a December 2014 report by Newsline Pakistan, attacks on people working with peace committees in Swat have continued during the past few years.[19]

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

   [19] Trouble in Paradise’, Newsline (Pakistan), 13 December <

7. The Centre for Research and Security Studies released a report for the period April – June 2016 in which it is stated that police officials appear to be the main target of violence in KPK, followed by political activists belonging to the ANP and the pro-government peace committee members.  It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[20] 

   [20] Security Report: April - June 2016, Center for Research and Security Studies, 28 July 2016, CIS38A80121410, p .18

8. An article in the Friday Times reports that at least 120 target killings and other attacks of violence have been reported in Swat since the completion of military operation in 2009; that the prime targets include members of the peace committees; and that most of the targeted killings have taken place in Matta and Kabal tehsils of the district. The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that “the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces”.[21]

   [21] "Restoring Swat’s lights", Friday Times, The, 29 July 2016,

9. In 2016, there have been further security incidents in the Swat Valley, with fatal attacks on VDC members, police and people with an anti-Taliban profile,[22] including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in Bara Bandai and Manglore.[23]  These incidents are noted in written submissions made on behalf of the applicant, as are more recent reports of targeting of peace committee members although these have occurred outside of Swat. In early June 2016, there were reports about village defence committee member Fazal Wadood in Koza Bandai area escaping an attempt on his life in the Kabal tehsil of Swat district.[24]

   [22] See ‘Target killings: An unending wave in Swat’, Morning Post, 19 January 2016, available at

   [23] See ‘Village defence body member, guard shot dead’, Dawn, 24 May 2016, available at

   [24] "Peace body member escapes attempt on life", News International -Pakistan, 04 June 2016,

10. The tribunal has located reports of several individuals killed by ‘unknown persons’ in January 2014[25] and Bakht Rawan, a local peace committee member gunned down by militants in Mingora in May 2014.[26]

    [25] Dawn ‘Peace volunteer shot dead in Mingora’ (8 January 2014) The Express Tribune ‘Silencing dissent: Three killed in attack on peace committee members’ (12 June 2014) >

    Despite the information set out above, there are conflicting views about the motivations for the targeting of peace committee members. For example, in a November 2014 Al Jazeera report, Deputy Inspector General of Police Abdullah Khan stated that the targeted killing issue was being over-blown and that there are different motives for the killings. This view was echoed by other police officers interviewed in the report, with another officer indicating that monetary issues have been behind several of the targeted killings. The report refers to police statistics that only 9.9 percent of 91 murder cases registered in Swat in 2014 were carried out by the Taliban, as opposed to the 26-29 percent claimed by VDC and Jirga members.[27] Similarly, a report in December 2014 refers to DIG Khan stating that, while militants in Swat found peace workers a ‘soft target’, investigations revealed that only four out of 17 peace committee members killed in the previous year were targeted by militants, with others being killed due to personal, land and financial disputes.[28]

    [27] Al Jazeera ‘Killings target anti-Taliban leaders in Swat’ (21 November 2014) Newsline ‘Trouble in Paradise’ (December Issue 2014) >

    Despite some reports questioning the motivation behind recent attacks against peace committee members, the above country information indicates that despite the military gaining control of Swat in 2009 and some resultant improvements in the overall security situation, the Taliban continue to launch attacks against military targets and those they consider support the Pakistani authorities, including peace committee members. 

11. Furthermore, in relation to the ANP, DFAT comments that while the ANP also acts as a belligerent (like other parties), it is the victim of politically- motivated violence in Pakistan.  TTP militants have attacked ANP members because of the ANP’s support for counter-insurgency operations in FATA and Khyber Pakhtunkhwa.  DFAT indicates that this violence is decreasing, however, citing only two attacks against ANP members in the period from January to October 2015, and assesses that ANP members are subject to a low and declining level of militant violence in Khyber Pakhtunkhwa and Karachi.  DFAT notes that while these attacks primarily target high-level leaders, low-level party members have also been subject to violence[29]. The current US State Department Human Rights Report on Pakistan reports of a significant increase in attacks on the ANP, as noted in submissions to the tribunal although further details are not provided (apart from reference to the killing of an ANP district councillor in KPK).

    [29] DFAT Country Information Report Pakistan (15 January 2016), sections 3.30-3.41.

12. The tribunal accepts that there is a real chance that the applicant’s activities in opposing the Taliban and assisting the Army as a peace committee member and his longstanding support for the ANP and support for the education of girls will make him known to the Taliban in his home area and will make him of adverse interest due to his actual and imputed opposition to the Taliban and support for the Pakistani Army. The tribunal finds that the country information discussed above indicates that the future risk to the applicant, as a peace committee member, cannot be dismissed as merely speculative or remote, including when combined with his support and membership of the ANP (albeit at a low level). Accordingly, the tribunal accepts that a real chance of serious harm to the applicant at the hands of the Taliban arises if he were to return to Swat district or elsewhere in Khyber Pakhtunkhwa now or in the foreseeable future. The tribunal finds the essential and significant reason for the serious harm to be the applicant’s actual and imputed political opinion. The tribunal is satisfied on the evidence before it that the conduct feared by the applicant is systematic and discriminatory as per s. 91R(1)(c) of the Act.

    State protection

13. In this case, the harm that the applicant fears from the Taliban and other extremist groups is from non-state agents and the applicant claims that the Pakistani authorities cannot and will not protect him from that harm.  The applicant claims that the Pakistani authorities cannot protect him because they are widely targeted by the Taliban themselves and that the Taliban is everywhere.

14. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

15. DFAT state that Pakistan’s army and paramilitary forces regularly conduct counter-insurgency operations in the FATA and remote parts of Khyber Pakhtunkhwa to increase government control in these areas and a large number of people have been arrested on terrorism-related charges since the commencement of the National Action Plan (NAP) in December 2014.  However DFAT also state that successful prosecutions of those responsible for politically-motivated or sectarian violence are rare and (as noted by the International Crisis Group) only a small number of those arrested under the NAP belong to extremist groups.[30]

    [30] DFAT Country Information Report Pakistan (15 January 2016) at 5.2.

16. According to a November 2014 report by Al-Jazeera, the network of military checkpoints across Swat has done little to prevent the Taliban from carrying out targeted killings or to help security forces arrest those responsible. Khwaja Khan, a local political leader who is reported to be on the Taliban's hit list, claims that the attacks have occurred ‘in close proximity to checkpoints’ and that the response of the security forces has been ineffective.[31] The report refers to a theme that is common to a number of other articles which refer to complaints from Swat Valley residents about the continuing insecurity and the inability of the state to provide protection from the Taliban, and portrays a prevailing atmosphere of fear and instability in the region.[32]

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

    [32] ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014, available at

1. However, a recent article indicates that more than 4,000 Pakistani Army soldiers are reported to be stationed in the Swat Valley and recent arrests by the authorities are said to have contributed to the stop of a spate of targeted killings in 2016.[33] The report also refers to the entire Swat region coming under ‘police radar’ and that Swat residents threatened with extortion received the protection of two armed police officers. Despite this, the report notes that some Swat residents continue to feel threatened and complain of not having received support from the Army.

   [33] International Business Times ‘Taliban threatens to ‘blow up’ traders in Pakistan’s Swat Valley if they don’t give protection money’ (12 December 2016) >

   Although a number of sources indicate that the authorities control most parts of the Swat Valley, the information before the tribunal indicates that the situation in the KPK region remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban.  While the security situation appears to have been tempered by the presence of the army, there are clear indications that militants remain active in the area and that little is done in response to attacks on residents by militants.  Given the long-standing nature and seriousness of the violence in the Swat Valley, together with information indicating that the authorities in Pakistan are struggling to contain that violence, the tribunal finds that the level of protection available to the applicant from the Pakistani authorities in the Swat Valley does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

2. Accordingly the tribunal does not accept that the applicant will be able to access adequate state protection in Swat or elsewhere in Khyber-Pakhtunkhwa.

   Relocation

3. Having accepted that the applicant has a well-founded fear of persecution in Swat District and Khyber Pakhtunkhwa, the tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.  The tribunal is satisfied that, as a citizen of Pakistan, the applicant has the right to relocate within that country. 

4. The applicant claims that he cannot safely relocate because the Taliban have a network throughout Pakistan and because he will be discriminated as a Pashtun and particularly because he can be identified as a Pashtun Sunni from Swat.

5. While the tribunal accepts that the applicant faces a real chance of serious harm from Taliban in Swat and KPK, it considers his activities with the peace committee to be localised to those areas and finds that the harm he fears as a result is also localised to those areas. The evidence before the tribunal does not suggest that mere members of peace committees in Swat have been targeted in other areas of Pakistan and the tribunal does not accept that there is a real chance of Taliban pursuing or targeting the applicant in other areas of Pakistan, such as Karachi, Islamabad, Lahore or Rawalpindi, for his peace committee activities and support for the education of women.

100.   While the tribunal notes country information regarding the ANP set out above, given the applicant’s low profile, the tribunal does not accept that anything other than a remote chance of serious harm arises for the applicant due to his membership and support for the ANP if he were to relocate to another area of Pakistan, for example Karachi, Islamabad, Lahore or Rawalpindi.

101.   The tribunal also does not accept that the applicant would face a real chance of serious harm in other parts of Pakistan, including the Punjab, on the basis of his Pashtun ethnicity or as a Sunni Muslim from Swat, as claimed.  The tribunal notes that there is some concern that the Pashtun population in Pakistan supports the Taliban and other insurgent groups, in particular in Lahore as reported in the latest DFAT report.[34]  However the country information does not indicated that Pashtuns, who are the second largest ethnic group in Pakistan and are represented in large numbers in urban areas, are targeted.[35] For example, DFAT states that they are not aware of any reports of harassment (of Pashtuns) occurring in Islamabad or Rawalpindi. In locations outside Karachi, reports of violence against Pashtuns are limited and isolated, and do not demonstrate that Pashtuns face a real chance of serious harm.  The tribunal does not accept that this country information applies only to long-term Pashtun residents as opposed to more recent arrivals of Pashtun ethnicity, as suggested in submissions. The tribunal also does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm as a person of Pashtun ethnicity.

[34] DFAT Country Information Report Pakistan (15 January 2016) at 3.5

[35] Ibid at 3.3

102.   The Tribunal notes that the applicant expressed concerns that there is a requirement for two witnesses from your home village to support you when seeling rental accommodation and the applicant is fearful that this will lead to him being found. The Tribunal put to the applicant that he could seek the assistance of his relatives to avoid others knowing and this would avoid that concern.  

103.   The tribunal acknowledges that there is sporadic generalised violence in various parts of Pakistan, including urban centres, and that crime occurs, sometimes involving violence.  However the tribunal considers that the chance of the applicant being harmed in this violence is remote.

Reasonableness of relocation

104.   Having determined that the applicant does not face a real chance of serious harm outside of his home region, the tribunal then must consider the reasonableness, in the sense of ‘practicable’, depending upon the particular circumstances of the applicant and the impact upon that person of relocation within his country of the relocation.

105.   Submissions from the applicant’s representative referred to a variety of factors that, in the applicant’s circumstances would make relocation unreasonable. These factors include the applicant’s lack of family support outside of Swat, his poor mental health and the possible exacerbation of his mental health issues if he had to relocate to an area where he had no family or other support, his limited work experience, discrimination he would face as a Pashtun and the general insecurity, violence and crime in Pakistani cities.

106.   The tribunal notes that the applicant’s wife has resided in Karachi since 2012 however the applicant advised that he sends financial support to her and the she is covered when she goes outside and she has severe mental health issues that mean she remains inside most of the time.

107.   The tribunal notes that, while somewhat limited in resources and falling below the level of need, mental health facilities do exist in Pakistan. For example, there are mental health hospitals in Hyderabad and Lahore[36] as well as a number of public and private hospitals in Lahore offering psychological and psychiatric treatment.[37] Furthermore, many pharmaceutical drugs are readily available in Pakistan.[38]

[36] Alam, Mukhtar 2011 ‘100 per cent rise in mental disorders’, Dawn, 9 October  < Accessed 24 March 2017.

[37] Mayo Hospital Lahore (n.d.), About us < Accessed 24 March 2017; Mayo Hospital Lahore (n.d.), Academic Department of Psychiatric & Behavioural Sciences KEMU/MAYO Hospital Lahore < Accessed 10 May 2013; ‘Treatement for Needy Patients’ (n.d.), Lahore Psychiatric Hostpital < Accessed 24 March 2017 ‘Medical Facilities at LPH’ (n.d.), Lahore Psychiatric Hostpital < Accessed 10 May 2013; ‘Achievements’ (n,d.), Ghurki Trust Teaching Hospital < Accessed 10 May 2013; ‘Psychiatry And Behavioral Sciences’ (n.d.), Ghurki Trust Teaching Hospital < Accessed 24 March 2017. 

[38] Mirtazapine [tabs 30mg] Available Brands’ (n.d.), Drug Information System website < Accessed 24 March 2017

108.   Nevertheless, the tribunal finds on the medical evidence before it including the medical information and reports supplied by the applicant’s representative regarding the level of care, accessibility and quality of drugs, the applicant’s mental health concerns are significant and require him and his wife to have a significant level of support. The tribunal accepts that, given the limited mental health resources available, the applicant would be unlikely to obtain a level of assistance that he requires in Pakistan. It accepts that his ongoing mental health problems will impact on his ability to relocate, including his ability to find employment and housing, particularly as he will have no family support and his wife has significant mental health issues that she will not be able to provide ongoing care for him either. The tribunal also notes that, while the applicant has work experience on ships, he deserted the ship when it arrived into Australia and he is concerned he will not be able to obtain work because of this. He also stated that in the past his livelihood derived from his land in SWAT valley and he would need to return there in order to support himself and his wife.  The Tribunal accepts that there is a real possibly that the applicant may not be able to obtain future work in seafaring on return because he deserted his ship in Australia and as such his options for survival and obtaining an income are limited.

109.   For these combined reasons, the tribunal does not consider it would be reasonable to expect the applicant to relocate himself to another part of Pakistan to escape the harm he fears in Swat and Khyber Pakhtunkhwa.

110. Having regard to the above, the tribunal is satisfied that the applicant faces a well-founded fear of persecution upon return to Pakistan. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

111. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Rachel Westaway
Member

‘Shangla DSP killed in Swat’, 13 April 2016, Dawn, available at

‘ANP leader killed in Swat’,

Dawn, 11 April 2016, available at ;

‘Two policemen shot dead in Dherai’, Dawn, 12 January 2016, available at

‘Policeman killed and two others injured in Swat attack’, Dawn,

25 May 2016, available at