1417350 (Refugee)

[2016] AATA 4420

1417350 (Refugee) [2016] AATA 4420 (13 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417350

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nicole Burns

DATE:13 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2016 at 2:43pm

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] November 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 28 July 2016 and 12 September 2016 to give evidence and present arguments. The Tribunal hearings were 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. She attended the Tribunal hearings. 

   CRITERIA FOR A PROTECTION VISA

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Based on a copy of the applicant’s Pakistani passport and birth certificate on the Departmental file, the Tribunal is satisfied that the applicant is a national of Pakistan and has assessed his protection claims accordingly.

11. The Tribunal accepts, as did the delegate, that the applicant’s ethnicity is Pashtun and that he is a Sunni Muslim. The applicant claims to have been born and grew up in [Village 1] which is in [Sub-division 1] in Swat District.   The applicant’s passport and birth certificate indicate that he was born Swat District, Khyber Pakhtunkhwa (KPK), Pakistan in [year] making him [age] years old. 

12. The delegate accepted the applicant was born in [Village 1], but was not satisfied that he had lived there since the mass evacuation of residents in 2007 due in large part to the general nature of his testimony when asked specific questions at interview about the village.  Before the Tribunal the applicant has consistently claimed he resided in [Village 1] and the Tribunal found his oral evidence about his and his family’s life there at hearing to be straightforward and overall credible. The Tribunal also notes that at hearing the applicant provided his original National Identity Card (NIC) which states – according to the interpreter at hearing – that he was born in [Village 1].  Coupled with his passport and birth certificate that states that he was born in Swat District, the Tribunal is satisfied that the applicant was born and resided in [Village 1] when he lived in Pakistan and that his wife, [number] children, parents, and [number] siblings currently reside there.  

13. The applicant worked as [an occupation 1] from 2003 until 2013 and in that capacity visited a number of countries, including Australia multiple times. However he claims each time he returned from [his projects] (around nine months each time) he would return to [Village 1]. He told the Tribunal he usually stayed in the village for another nine or so months before [traveling for work] again. 

14. The Tribunal notes that on 22 July 2016, prior to the hearing, the applicant’s representative requested the hearing be adjourned (the timeframe was not specified) and provided a letter from a doctor of the same date.  In it the doctor stated, among other things, that the applicant suffered from depression and anxiety, was not fit to attend an interview and needed to see a psychologist and take medication to manage his condition.  By email dated 25 July 2016 the Tribunal requested further information, preferably from a medical professional, including when the applicant had started suffering from anxiety and depression, whether he had been diagnosed, and why he was unable to give evidence at the hearing.  The Tribunal indicated that at that stage the hearing postponement request was refused, given the limited information before it. The Tribunal did not receive a response and the hearing proceeded as scheduled.  At the start of the hearing the Tribunal asked the applicant about his mental health, referring to the letter from the GP he had submitted.  He said he first saw a psychologist about nine months ago and has seen them two or three times in total, for counselling and medication to help him sleep and address his symptoms of depression.  He confirmed that he was ‘ok’ to give evidence at the Tribunal hearing.  The Tribunal accepts the applicant has experienced symptoms of anxiety and depression and has taken that into account when assessing his evidence.  The Tribunal does not consider the applicant’s mental health affected his ability to provide evidence at the hearings. 

    Claims in relation to Swat District

15. The applicant claims to fear serious harm from the Taliban on return to Swat on imputed (anti-Taliban) political opinion grounds as a member of his local peace committee. The applicant has put forward a number of claims regarding past harm and threats against himself and his family by the Taliban in Swat District, discussed below. 

16. The applicant claims his [son] was killed [in] December 2007 as a result of a suicide bombing at an army checkpoint in [a named village], Swat Valley in which [number] other people were killed and the applicant sustained injuries to his [body].  His description of the attack accords with independent country information[1] and the Tribunal accepts his claims in this regard.  It is submitted on the applicant’s behalf that this was one of the reasons why he became involved in opposing the Taliban and that although the applicant did not explicitly claim that his family were specifically targeted by the suicide bomber, anyone who shares ideals inconsistent with the Taliban will essentially be made a target.  The Tribunal has considered these submissions.  However as the attack took place at an army checkpoint and in the context of violence carried out by militants against security forces at that time, the Tribunal is not satisfied that the applicant or his son was specifically targeted in the attack.  The Tribunal is of the view that this was part of the violence targeting the security forces, not a personal attack directed against the applicant or his son. 

    [1] Dawn, Peshawar: 160 killed in 21 suicide bombings in Swat, 25 January 2009,

17. The applicant claims his [Relative A], [named], was abducted by the Taliban around March or April 2009 from [Village 1] and remains missing.  At hearing he said that three or so days after his abduction his family found his [personal items] at the front of his house with a note from the Taliban accusing his [Relative A] of working with the army against them (by pointing out the houses the Taliban lived in, for instance).  In his written statement provided to the Department the applicant stated that his [Relative A] had become a member of a peace committee formed in their village (and other villages) after the Pakistani army claimed victory against the Taliban.  This claim does not accord with the applicant’s oral evidence to the Tribunal however, that the peace committee in his village was established in early 2010 on the army’s request (to help them fend off the Taliban after their offensive in 2009) after he and his family had spent a few months as Internally Displaced Persons (IDPs) in Peshawar in late 2009.   When the Tribunal pointed out this discrepancy at hearing the applicant said that he was on a [work project] at the time his [Relative A] was kidnapped and when he returned to his village at the end of 2009 he was told that he had already been kidnapped.  The Tribunal is willing to accept that the applicant’s [Relative A] was kidnapped in the past, possibly by the Taliban.  However as he was kidnapped prior to the establishment of the peace committee, as alleged by the applicant, the Tribunal does not accept that he was abducted because he was a peace committee member as claimed.  It remains unclear why he was abducted.  Given these considerations the Tribunal finds remote the chance the applicant would face serious harm at the hands of the Taliban or others in relation to his [Relative A’s] abduction that took place around seven years ago with no apparent follow up.

18. The applicant claims he helped establish the peace committee in his neighbourhood (which he referred to as a mohalla) after returning from being displaced in Peshawar in early 2010 and was actively involved in that committee until he [travelled for a work project] three to four months later.  He explained that there were about [number range] active members in the peace committee for his mohalla (made up of around 1500 to 2000 people) and [number] leaders, of which he was the fourth.  He told the Tribunal that the first leader was [Mr A], selected by the army, who was killed by the Taliban in 2011 or 2012 and thereafter [named leader] took over, who is currently the leader (and who has escaped a number of attempts on his life).  The other leaders – [named] – remain as such, liaising with the army to help register arms in the area for example.  He said they have not been harmed, noting the Taliban have not had the opportunity, but they are very cautious when moving around.   The applicant said after he [commenced the work project] around six months after the peace committee was established someone else replaced him as a leader of the peace committee.  However he re-engaged with the committee each time he returned from [work projects], carrying out duties assigned by the army such as identifying the residence of Taliban fighters and preparing the night watch/patrol schedule. 

19. The Tribunal has some concerns about the applicant’s claims to have been actively involved in his local peace committee since its establishment as claimed in his oral evidence to the Tribunal because whilst he told the Tribunal that he was residing in Peshawar and [Village 1] ([near] Swat) from late 2009 until around mid-2010, according to his statutory declaration provided to the Department he was outside Pakistan during this period, working [on a work project] (that is from [October] 2009 until [October] 2010).   At hearing the applicant said his brain was not working (properly) with the medication he is taking and he gets dates mixed up.   As ‘proof’ that he was an IDP in Peshawar as claimed he showed an IDP registration and ration card, an IDP registration form and another IDP card used to access funds allocated to IDPS (copies of which were provided to the Department).  Although these documents do not list any names (the applicant said a number was allocated instead) they have date stamped ‘December 2009’, which corroborates the applicant’s oral evidence to the Tribunal that he was in Peshawar late 2009 before returning to [Village 1] in early 2010 for around six months.  The applicant was unable to confirm if the dates in his written statement were correct when asked, telling the Tribunal that he told a friend what had happened who then helped him with the statement.  He has not kept his passport or [workplace records] that covered that period to verify when he was outside Pakistan.  Despite these concerns the Tribunal is willing to accept that the applicant may have been involved with a peace committee in his area for the periods he spent in his village between [work] placements intermittently from around 2010 until he left Pakistan in September 2013. The Tribunal notes that country information indicates that peace committees (also known as Aman or Lashkars) have been present in the area since 2008,[2] although it was unclear when they were established in the applicant’s mohalla.  

    [2] [Deleted.] 

20. However for the reasons that follow the Tribunal does not accept the applicant was a leader of his peace committee or was actively involved to such an extent as to come to the adverse attention of the Taliban as claimed.   The applicant did not mention that he was one of [number] leaders of his peace committee in his written statement to the Department, instead stating that he was a member after returning as an IDP in Peshawar.  In his interview with the delegate (as recorded in the delegate’s decision, a copy of which the applicant provided to the Tribunal on review) he said he was appointed as a ‘manager’ of the committee, in charge of organising night watch shifts, and that he had gone with the army to point out Taliban houses and had regular meetings with the Taliban.  Given the late introduction of this claim the Tribunal is of the view that the applicant exaggerated his leadership role in the peace committee, and does not accept his claims in this regard. 

21. The Tribunal notes the delegate had concerns (as recorded in the delegate’s decision, a copy of which the applicant provided to the Tribunal on review) about the applicant’s claims to have been actively involved in the [Village 1] peace committee because he made no mention at interview of the murder of one of its leaders – [Mr B][3] – who was shot dead by militants in 2010.  At hearing the applicant said he knew who [Mr B] was and had heard about this death whilst on [a work project].  He explained that [Mr B] was the leader of another mohala within [Village 1].  The Tribunal notes as well that the applicant mentioned another peace committee leader – [Mr A] – and said he was killed in either 2011 or 2012.  Country information indicates that [Mr A][4] was killed in 2010.   Nonetheless the Tribunal considers this inconsistency with country information relatively minor. Of more concern, in the Tribunal’s mind, is the fact that the applicant failed to mention [Mr A] until the Tribunal hearing, which casts doubts as to his claims to have been a peace committee leader (and close to the leaders).

    [3] [Deleted.]

    [4] [Deleted]

22. Because of his involvement with the peace committee the applicant claims that he was threatened by the Taliban and beaten on one occasion.  Specifically he told the Tribunal that in January 2011 he received a telephone call to his mobile phone from a Taliban member who accused him of pointing out to the army houses of other Taliban members and threatened to kill him..  He said he received three to four more threatening phone calls within a three to four month period after this initial call.  His oral evidence in this respect is inconsistent with his written and oral evidence to the Department (as recorded in the delegate’s decision, a copy of which the applicant provided to the Tribunal on review) that he received a threatening phone call from the Taliban twice: that is in January 2011 and July 2013 (just prior to leaving the country).  He told the Tribunal the last time he was threatened by the Taliban was in April 2011 however when asked why he stated (in his statutory declaration provided to the Department) that he received a threatening phone call on [a date in] July 2013, the applicant replied “yes” and said that the Taliban kept calling him.  However the Tribunal found his oral evidence was vague and in contrast to what he had told the Tribunal earlier. Given this inconsistency, the Tribunal does not accept his claims to have received threatening phone calls by the Taliban in the past.

23. The applicant also told the Tribunal that he was attacked by Taliban members whilst on a night patrol for the peace committee in his village in April 2011, resulting in [an injury].  He said that five Taliban fighters with their faces covered attacked him and two others with sticks and their fists.  Although armed, the Taliban did not want to fire on them because they wanted to kidnap them; however they screamed, other people started firing and the Taliban ran away.  His friend then called the army.  The Tribunal has some concerns with the applicant’s claims about this incident because there are some inconsistencies between his oral evidence to the Tribunal and written and oral evidence to the Department.  For instance he stated in his written statement to the Department that this incident occurred on [a date in] February 2011 and that two members of the Taliban were injured and then arrested by the army.  However he told the Tribunal that this incident occurred in April 2011 and said that all of the Taliban members ran away: he gave no indication that they were injured and arrested by the army.  At his interview with the delegate (as set out in the decision record, a copy of which the applicant provided to the Tribunal on review) the applicant said this incident took place in February 2011 and that it occurred as a consequence of the threatening phone call in January 2011.  The Tribunal also finds it odd that on the one hand the applicant asserts that the Taliban directly threatened him around four times from January 2011 in a three to four month period with death because he had identified Taliban households to the army and was a peace committee member, yet when the Taliban had the opportunity to carry out their threat in this attack they did not.  Given these concerns the Tribunal does not accept the applicant was attacked by the Taliban in early 2011 as claimed.

1. In his statutory declaration provided to the Department the applicant stated that at the end of April 2009 he was asked by a group of Taliban to give them money and they beat him when he refused.  The applicant made no mention of such an incident at the first Tribunal hearing.  When asked specifically about this incident at the second hearing the applicant said the incident occurred after he had returned from a [work project].  Specifically that five or six masked men came to his house, asked for money, and when he refused they beat him before walking away.  He said the same thing happened in January 2011 before the incident where he was beaten by Taliban whilst on night patrol, also in January 2011, and [suffered an injury], as set out above.  For reasons above the Tribunal has not accepted the applicant was beaten by the Taliban in January 2011 and [suffered an injury] whilst on night patrol for his peace committee.  The applicant makes no mention of being beaten by the Taliban in January 2011 when men came to his door and demanded money in his statutory declaration provided to the Department, nor did he raise it at the first hearing.  At the second hearing the applicant said that is because it is hard for him to remember things precisely; that there were many incidences like that when he lived in Swat; and they were routine issues in his life back then.  Whilst the Tribunal does not necessarily expect the applicant to remember specific dates, it would expect him to recall how many times he was physically attacked by the Taliban. Given the late introduction of this claim, the Tribunal does not accept that it occurred.  The Tribunal does not accept the applicant was beaten by Taliban members in January 2011 when he failed to give them money.  Given these concerns, and the fact that the applicant failed to mention at the first hearing that he was attacked by the Taliban in April 2009 and only at the second hearing when asked specifically, the Tribunal also does not accept his claims in this respect. 

2. Given these findings that the applicant was not directly targeted, threatened or harmed by the Taliban when he resided in Swat in the past because of his role with the peace committee or any other reason, it follows that the Tribunal does not accept that his father has been contacted by the Taliban in an effort to find the applicant three to four times (via phone calls) as claimed at hearing.  The Tribunal accepts the applicant’s father has recently had a heart attack as claimed, but does not accept that was due to stress related to the applicant being directly targeted by the Taliban as submitted. 

3. The Tribunal has other concerns with aspects of the applicant’s case, including the fact that he returned to Swat numerous times during this period when he claims to have been directly threatened by the Taliban.  The applicant said at hearing that it was difficult to [leave the work project] earlier because three or four people would watch them but in October 2013 he had the opportunity to do so (he did not elaborate). Also because he was worried about his children if something happened.  In her written submission the representative stated that the applicant felt he had a duty to put himself in a position of danger in order to see his family and it was when the danger was increased that he decided he needed to save himself from the Taliban. 

4. At hearing the applicant claimed that his name was included in a list of people the Taliban wanted to harm, placed on the wall of a shop in a bazaar in his home area sometime at the end of 2012.  He said his brother told him his name was on the list and his father told him to leave the area.  The Tribunal notes the applicant did not mention that his name was on a Taliban list to the Department which casts doubt as to his claims in this regard.  At hearing the applicant said the delegate did not ask him and that he was very depressed at the time.  However given such a claim is directly relevant to his protection claims the Tribunal does not find this adequately explains the omission.  The Tribunal also found the applicant’s oral evidence at hearing about this matter to be vague and muddled. For instance he was unable to specify exactly when the list was put up, for how long, and how often.  The Tribunal also notes that the applicant’s family members stayed living in the same house in [Village 1], despite his claims to be on a Taliban hit list.  For these reasons the Tribunal does not accept the applicant’s claims to have been on a Taliban hit list.

5. In his statutory declaration provided to the Department the applicant stated that in 2006 a religious cleric (“Mawlana Fazal Ullah[5]”) started an illegal radio station via which he taught religious studies and he and his followers started to target the army, police and female education in Swat.  In that context the applicant stated that in around September 2007 a group of Taliban visited and told him to stop sending his daughter to school; after this the applicant asked his daughter to study from home.  At the Tribunal hearing the applicant did not mention this incident in any detail, apart from stating that the Taliban stopped girls going to school in 2007.  He said his daughter – now [age] - studies form home because the girls’ schools which were destroyed by the conflict have not yet been repaired.  In a written submission to the Tribunal the representative argues that the threat to remove his daughter from school was one factor that influenced the applicant to join the peace committee.  The Tribunal is willing to accept this incident occurred as claimed in his written statement to the Department, given country information indicates it was common for the Taliban to dissuade women from attending school at that time.  However as the applicant has not claimed the Taliban took any further interest in him or his family in relation to this incident, the Tribunal finds remote the chance the applicant would face serious harm from the Taliban in relation to this incident, which occurred around eight years ago, on return to Swat. 

   [5] Referring to Maulana Fazlullah, former leader of the Tehreek-e-Taliban-e-Pakistan (TTP) in Swat Valley.

6. Accordingly whilst the Tribunal accepts the applicant may have been involved in his local peace committee on occasion when he resided in [Village 1] in between [work] assignments in the past, it considers his involvement was limited and low-level (for example being part of night patrols).  For reasons above the Tribunal does not accept his claims to have been threatened, harmed or targeted by the Taliban as a member of the peace committee. 

   Real chance of serious harm in Swat in the foreseeable future

7. Given this finding about the applicant’s past profile and experiences in Swat, the Tribunal has gone on to consider if he faces a real chance of serious harm from the Taliban for any Convention reason on return. The Tribunal accepts the applicant may resume his support to the peace committee on return to [Village 1].

8. The Tribunal has accepted that the applicant may have been a peace committee member in the past and was involved in some activities such as night patrols and possibly assisting the army for the period of time he resided in [Village 1]: that is a total of 25 months from when he claimed he joined the committee in early 2010 until he left Swat in September 2013, according to information in his statutory declaration provided to the Department[6].  For reasons above the Tribunal has not accepted that the applicant was particularly active or that he held a leadership position in the peace committee, or that he was ever threatened or harmed by the Taliban, or is on any hit list as a result of his involvement with the peace committee. 

   [6] That is in Swat from [October] 2010 to [August] 2011 and from [May] 2012 to [September] 2013. 

9. It has been submitted[7] that the extent of the applicant’s involvement with the peace committee is of little relevance regarding the formulation of a well-founded fear arising from the consequences resulting from that association.  Whilst understandable that a greater extent of involvement may lead to closer vigilances by the Taliban, the representative argued that this does not, however, detract from the fact that someone whose role may be of a lesser stature will still remain a target. It is submitted that the applicant therefore faces a well-founded fear of persecution from the Taliban on return on this basis, regardless of the extent of his involvement in the peace committee. 

   [7] In an undated written submission provided to the Tribunal on 12 August 2016

10. At hearing the applicant submitted a typed list from the South Asian Terrorism Portal (SATP) titled “Khyber Pakhtunkhwa Timeline – 2016” which he said is a list of people the Taliban have killed and other militant incidences in KPK for that year; an article about the killing of Deputy Superintendent of Police in Swat district in April 2016 by unidentified gunmen; and articles about Taliban activity in Swat and the ongoing targeting of peace committee members.  On the Departmental file are copies of news articles about militant attacks in Swat valley, including the targeting of peace committee members, which the Tribunal has had regard to in assessing the applicant’s case.

11. For following reasons the Tribunal finds that the applicant faces a real chance of serious harm on return to Swat on imputed (anti-Taliban) political opinion grounds as a member of a peace committee. 

12. DFAT reports that the most potent security threat in Pakistan remains the Taliban insurgency based in FATA and Khyber Pakhtunkhwa which, combined with the war on terrorism, has claimed more than 57,000 lives since 2001 in Pakistan.[8]

    [8] DFAT 2016 DFAT Country Information Report Pakistan 15 January

13. Militants in Swat operate under the umbrella of the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM), which has been operationally linked to the Tehrik-e-Taliban Pakistan (TTP). Independent information before the Tribunal indicates that, despite the defeat of militants in Swat (operating under the umbrella of the TNSM) by the Pakistan military in April 2009, sporadic attacks by the group against military and civilians suspected of cooperating with the military, including peace committee members continue.[9] 

    [9] 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’.[10] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[11] 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’.[12] 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.[13]

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

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

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

14. There is also evidence of militant attacks against peace committee members[14].  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.[15] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[16] 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.[17]

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

    [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 <

    [16] ‘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 <

15. An investigative report by Al Jazeera in late 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,[18]referring to at least 22 VDC members having been killed in targeted attacks across the valley that year alone.  The Al Jazeera 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.

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

16. 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.  He states that 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.’[19]  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.[20]

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

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

17. A recent 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 [deleted] 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,

18. 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] 

    [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

19. Country information also indicates that peace committee members in [Village 1], the applicant’s home area, have been attacked by militants in recent years.  A curfew was imposed in areas of Swat, including [Village 1], in September 2014 following the killings of several peace committee members by militants.[24] In April 2010 [peace] committee members in [Village 1] were killed and [others] injured by ‘assailants’ according to [source][25] and [another source]; the latter identifying the victims as [names].[26]

    [24] [Deleted] 

    [25] [Deleted] 

    [26] [Deleted] 

20. More recently, in [2016], there were reports about village defence committee member [named] in [Village 1] area, escaping an attempt on his life in the [Sub-division 1] tehsil of Swat district.[27]

    [27] [Deleted]

21. The Centre for Research and Security Studies recently 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.[28] 

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

22. The country information clearly 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. 

23. The Tribunal accepts the activities of the applicant in opposing the Taliban through his activities in the peace committee and directly assisting the army would make him known to and of adverse interest to militants in the area.  The Tribunal accepts that if the applicant returns to his home in Swat, there to be a real chance that he will be known to the Taliban and other extremists in Swat Valley and imputed with a political opinion that supports the Pakistani army and opposes the Taliban. 

24. The country information cited above establishes that there is more than a remote possibility that as a peace committee member, the applicant may be at risk if he returns to the Swat district and KPK more broadly, perceived to be opposed to the Taliban.   In these circumstances the Tribunal accepts that should the applicant return to his home in Swat district or elsewhere in Khyber Pakhutnkhwa now or in the foreseeable future, there is a real chance he will face serious harm from the Taliban or other extremists as per s.91R(1)(b).  The Tribunal further finds that the essential and significant reason for the harm would be the applicant’s actual or imputed anti-Taliban political opinion as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c).

    Availability of state protection

1. 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.  Specifically the applicant claims that the authorities in KPK cannot provide adequate protection because they themselves are targeted by members of the Taliban on a daily basis. 

2. 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.

3. 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.[29]

   [29] DFAT 2016 DFAT Country Information Report Pakistan 15 January at 5.2

4. According to a December 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.[30]

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

5. A recent report issued by the United States Department of State’s Overseas Security Advisory Council , states that:

   Pakistani authorities have only minimal control of many areas of KP province and FATA, including the Swat Valley and North and South Waziristan.  These areas offer terrorists, extremists, and militant groups a safe haven to prepare, train, and carry out attacks.  The FATA and Swat Valley are lawless and should be avoided.

   The presence of al-Qai’da, Islamic State (ISIL), Afghan and Pakistani Taliban elements, and other indigenous militant sectarian groups, and geographic proximity to the Afghanistan border, continue to pose a danger.  Targeted attacks against government officials, property, military, law enforcement, and soft targets (educational facilities) are common.  Consulate Peshawar receives reports that indicate IED strikes, targeted assassinations, and bombings throughout the region occur on a weekly basis:[31]

   [31] United States Department of State Overseas Security Advisory Council, 30 March 2016, ‘Pakistan 2016 Crime and Safety Report: Peshawar’ available at

6. 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. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his political opinion if he returns to his home in [Village 1] or elsewhere in Khyber-Pakhtunkhwa, now or in the reasonably foreseeable future.

   Relocation within Pakistan

7. Given the Tribunal has found that the applicant has a well-founded fear of being persecuted in his home area, the Tribunal has considered if it is reasonable in all his circumstances to relocate to some other part of Pakistan where there is no appreciable risk of the occurrence of the feared persecution.

8. It is well settled that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, and where it is reasonable, under all the circumstances, in the sense that it is practicable, to expect him to seek refuge in another part of the country. ‘Reasonable’ will depend upon the particular circumstances of the applicant and the impact of relocation upon that person within the person’s country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[32]

   [32] SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne and Brennan JJ, Callinan, J, agreeing.

9. It is submitted that if the applicant were to move to another part of the country he would have to constantly live in a state of paranoia and fear as he would not know who to trust to communicate with, fearing ties with the Taliban.  Whilst the Tribunal accepts that the applicant would have some degree of trepidation on returning to Pakistan, it has found for reasons below that the chance of him being seriously harmed outside his home area is remote and the Tribunal does not accept that his fear itself would constitute persecution or make his relocation unreasonable.

10. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.

11. At hearing the applicant told the Tribunal that for the 20 days he stayed in Karachi before departing Pakistan the last time [in] September 2013 he was in hiding from the Taliban, staying at a guesthouse.  Given the Tribunal does not accept the applicant’s claims that he was directly threatened or targeted by the Taliban in the past for reasons above, the Tribunal does not accept his claims to have been in hiding form the Taliban in Karachi in September 2013.

12. At the Tribunal hearings the Tribunal discussed with the applicant whether it would be safe and reasonable in all his particular circumstances to relocate to another part of Pakistan to avoid the harm he fears from the Taliban in Swat district.  The applicant told the Tribunal that the TTP is spread all over Pakistan and that he is on their target list.  He said nowhere is safe if they come after him. In his statutory declaration provided to the Department he stated that he has previously opposed the Taliban and helped the army capture their members; that the Taliban have killed many members of committees formed in other cities of Pakistan; that the Taliban are active throughout the country and they kill their targets whenever they found them.  However the Tribunal considers that the applicant’s activities with the peace committee were limited and localised to his home area of Swat and Khyber Pakhtunkhwa and that the harm as a result he fears is localised to those areas. Whilst the Tribunal accepts the applicant was a member of the peace committee, it does not accept that he was threatened or harmed or specifically targeted by the Taliban as a peace committee member, or that his family members have been threatened since he left Pakistan.  Nor does the Tribunal accept that he was on a Taliban hit list.  The applicant said at hearing that once one becomes a target in a certain area, one will be pursued by the Taliban and not spare any efforts, no matter which city in Pakistan.  The Tribunal does not accept on the evidence before it that the applicant’s profile is such that he would already be known by the Taliban or other extremist groups in other parts of Pakistan or targeted in other parts of Pakistan in relation to his limited involvement in the peace committee from around 2010 to September 2013. On the information before it, the Tribunal does not accept that the Taliban or other extremists that may be inclined to target the applicant in [Village 1] or the Swat district more generally will pursue him to other parts of Pakistan, for example Islamabad, Rawalpindi, or Lahore on the basis of his own political opinions (actual and imputed) and peace committee activities.

13. The Tribunal accepts that the Taliban carry out attacks in different parts of Pakistan.  However, as discussed with the applicant at hearing, DFAT indicate in their latest report that minority groups (for example Shias) are disproportionately affected by sectarian conflict in Pakistan[33] and note that the TTP has carried out a number of attacks against government security forces, political rivals, civilian infrastructure and non-Sunni Muslims throughout Pakistan.[34]  The Tribunal notes in this respect that the applicant is a Sunni Muslim.  The applicant said that peace committee members are part of the police and army, actively involved against the TTP.  As well, he was very active against them as a peace committee member and in other ways for example by smoking and listening to music.  He told the Tribunal that after he lost his son and was beaten up (by the Taliban) he was “one hundred per cent” against them in his activity.   Whilst the Tribunal has accepted the that the applicant was involved to some degree in his local peace committee and accepts he may have been galvanised in large part after the death of his son, for reasons above the Tribunal is of the view the applicant exaggerated his peace committee involvement and leadership role and other activities which could be construed as anti-Taliban.  Even if the Tribunal accepts his claims to have smoked and listened to music, in addition to his limited involvement with the peace committee as discussed, the Tribunal does not accept that this would lead to a profile attached to him that would make him a Taliban target throughout Pakistan.   

    [33] DFAT Country Information Report Pakistan 15 January 2016 at 2.34

    [34] Ibid at 2.33

14. While the Tribunal has accepted that the applicant has a real chance of serious harm arising from his involvement with the peace committee in his home region, the Tribunal does not accept that the real chance or real risk exists across Pakistan generally. The Tribunal does not accept that the applicant has such prominence in the local peace committee that the Taliban would seek to harm him in other locations within Pakistan because of his activities with the peace committee (and perceived anti-Taliban political opinion) in the Swat region or KPK more generally.  The country information pertaining to peace committees demonstrates that acts of violence against peace committee members are limited to the locations that they operate, in the KPK region. In his statutory declaration provided to the Department the applicant stated that the TTP have killed many members of the committee who fled Swat in fear of persecution including [Mr C] who was targeted in [Town 1] Punjab in March 2013, [Mr D] head of [an organisation] who was killed in Karachi, and [Mr E] who was [an occupation] and member of the peace committee [in Town 2] and killed in Karachi.  The Tribunal accepts that there are reports of people being harmed in parts of Pakistan with ties to Swat, however, as discussed with the applicant at hearing, country information indicates that leaders and high profile members are targeted.  For the reasons above, the Tribunal does not accept that the applicant has such prominence that he would be of adverse interest to the Taliban in other parts of Pakistan. 

15. The Tribunal has also considered if there would be an issue if the applicant relocated to other areas of Pakistan as a Pashtun. At the hearing the applicant said he has concerns as a Pashtun, noting that he is easily identifiable as such (and from Swat) in other areas of Pakistan due to his accent.  Once identified, he said the Taliban are able to target him, because they have networks throughout Pakistan. The applicant said that in other cities, especially Lahore, people look at Pashtuns as allies or supporters of the Taliban.  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[35].  However, as discussed at hearing, DFAT also state that they are not aware of any reports of harassment (of Pashtuns) occurring in Islamabad or Rawalpindi. The city of Karachi is also identified as a location where there is violence against Pashtuns, though this often also relates to political conflicts of popular Pashtun parties such as the PPP and ANP, opposed by the MQM. In other locations in Pakistan, reports of violence against Pashtuns are limited and isolated, and do not demonstrate that Pashtuns face a real chance of serious harm.  When this information was discussed at hearing the applicant said that he could be targeted because he belongs to a village that is [in the same region as] Fazlullah’s (former leader of TTP, Swat) village.  When asked how people would know that is the case, the applicant replied that Fazlullah asked his men to find members of the peace committee in other parts of Pakistan. While there is violence that affects Pashtuns, these incidents are rare, the Tribunal considers that country information does not demonstrate that the chance or risk of being harmed as a Pashtun in locations such as Islamabad, Rawalpindi or Lahore is any more than a remote chance, and not one that could be determined to be a real chance or real risk of occurring.  The Tribunal does not accept that the applicant’s ethnicity and accent are either uncommon or would lead to a real chance of serious harm. The Tribunal does not accept that the applicant face a real chance of serious harm or a real risk of significant harm because of his Pashtun ethnicity or his anti-Taliban political opinion.

    [35] DFAT Country Information Report Pakistan 15 January 2016 at 3.5

16. The Tribunal has considered the applicant’s claims at hearing that everywhere (in Pakistan) there are shootings and killings.  The Tribunal accepts that violence occurs throughout Pakistan and there is some risk to the applicant of being harmed in violence that occasionally occurs outside of KPK.  The Tribunal has considered the applicant’s risk of harm in this generalised violence. While the acts of violence are of concern, they are not common. As discussed at hearing, DFAT reports that Pakistan has struggled with security threats from terrorist, militant and sectarian groups but it is a diverse country and the security situation varies greatly over time and from place to place, with urban centres tending to be more secure than rural areas[36].  The applicant said given he is a target, it is not safe anywhere in Pakistan: he could be abducted, and become a victim of suicide attacks or bomb explosions.  For reasons above the Tribunal does not accept the applicant has a particular profile that would place him at risk of being targeted in such violence in other parts of Pakistan. 

    [36] DFAT Country Information Report Pakistan 15 January 2016 at 2.30

17. The Tribunal acknowledges that there is sporadic generalised violence in various parts of Pakistan, including urban centres such as Lahore. However the Tribunal considers that the chance of the applicant being harmed in this violence is remote.

18. Having determined that the applicant does not face a real chance of serious harm or a real risk of significant 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.

19. The Tribunal has considered the applicant’s claim at hearing that he speaks a different language if he goes to somewhere like Lahore or Karachi and his appearance is different.  The representative has also submitted that his accent is different, which will make him stand out.  At hearing the applicant said he speaks only one language – Pashtu – which the Tribunal accepts.  At hearing the applicant also said that he would not be able to rent a house in somewhere like Lahore, because the landlords would consider him as an insurgent, linked to the Taliban, because of his accent and ethnicity.   However, as discussed with the applicant at hearing, the Tribunal notes that there are sizeable populations of Pashtu in Pakistan outside of KPK and FATA in locations such as Karachi, Islamabad and Lahore and therefore does not accept that in such circumstances it would be unreasonable for him to locate because he only speaks Pashto. The applicant said that whilst this could be applicable to some other people, it is not in his case given his fears.  The applicant has also worked in an international environment for an extended period, including on international [projects], and in Australia. while the applicant’s language skills may be limited, they have not stopped the applicant from finding and holding employment positions previously, and the Tribunal does not accept that this would be a reason to stop the applicant getting employment or limit his opportunities in the future, including socially and in accommodation. The Tribunal notes that the applicant will be able to communicate in Pashtu in Lahore given the large number of Pashtuns, so he would have opportunities to use that language. The Tribunal does not accept that the applicant’s language limitations would lead it to be unreasonable for him to relocate within Pakistan.

20. The Tribunal has considered the applicant’s claim in his statutory declaration provided to the Department that he cannot relocate to another part of Pakistan because he is uneducated and will face serious financial problems.  At hearing he said he finished school in [grade], which indicates that he has had some education, albeit limited.  The Tribunal accepts that it may be difficult for the applicant to find work initially in another part of Pakistan.  However he has worked in Pakistan as a farmer and for over 10 years as [an occupation 1], has lived in Australia since 2013 without any family ties, and told the Tribunal that he currently works in Australia (in a [business]).  The Tribunal is satisfied that the applicant has the skills and experience to be able to be economically viable in another area of Pakistan such as Islamabad or Lahore and to relocate successfully, even if he has limited education.  The Tribunal does not accept the submission that he will face serious financial problems. The Tribunal considers that in the applicant’s circumstances as discussed that he would be able to find employment in an urban centre such as Lahore to support himself financially, find appropriate accommodation and pay for the higher costs of living found in urban centres of Pakistan. 

1. The Tribunal further finds, for reasons set out above, that the applicant’s ethnicity, anti-Taliban opinion, his involvement in the peace committee, and generalised violence, would not be a reason for it to be unreasonable for the applicant to relocate in Pakistan.

2. The Tribunal accepts the applicant has a wife and [number] children and that they would have to adjust to life in Lahore, for example, if the applicant were to relocate there, or to another urban area such as Islamabad or Rawalpindi.  However, as mentioned, there have been a number of people who have relocated from KPK to places such as Lahore and the Tribunal does not consider the applicant’s wife and children would be isolated or lack support on relocating to such an extent it could be considered unreasonable.

3. The Tribunal has also considered the risk of generalised violence in urban centres such as Lahore or Islamabad.  However it finds that the risk that the applicant will be caught up in such violence to be remote. The Tribunal does not accept that the levels of violence in Lahore for instance make relocation unreasonable for the applicant; rather it considers that internal relocation to an urban metropolis such as Lahore is reasonably practicable for the applicant.

4. The Tribunal has considered the applicant’s mental health when assessing whether or not it is reasonable for him to relocate.  At hearing the applicant said it would not be possible for him to look after his family elsewhere in Pakistan, because he suffers from depression. He said he finds it difficult to focus.   The Tribunal accepts the applicant has been undertaking counselling and taking medication to help manage his symptoms of anxiety and depression. The applicant told the Tribunal that if referred to a psychiatrist in Pakistan the normal practice is to administer electric shock therapy. As well, the quality of the medications cannot be trusted.  The Tribunal has considered the applicant’s concerns.  However, as discussed at hearing, the Tribunal notes that reports of depression and anxiety were not uncommon in Pakistan, and that people often resorted to medications rather than treatment, and that it appeared medication for anxiety, depression and sleepless were readily available.[37] Although there are limited mental health services in Pakistan, mental health hospitals and services do exist in Lahore[38]  for instance and anti-depressants such as Prozac are popular and widely available and online sources indicate that antidepressants such as mirtazapine are produced and sold in Pakistan under various brand names. The applicant gave evidence at hearing that he no longer sees a counsellor or psychiatrist in Australia, given he works night shift, and instead takes medication to manage his symptoms.   Based on the above country information the Tribunal is satisfied that he would be able to access medication on return to Pakistan to help manage his symptoms.  The Tribunal does not accept that the applicant’s mental health concerns mean that it would be unreasonable for him to relocate in Pakistan.

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

   [38] and also >

   Weighing these matters together, the Tribunal finds that the applicant’s internal relocation within Pakistan would be reasonable in the circumstances. 

5. The Tribunal finds that there is not a real chance that the applicant will be persecuted for reasons of his political opinion, imputed or otherwise, or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in another part of Pakistan, such as Lahore or another urban area outside KPK and the FATA and the also finds that it is reasonable for the applicant to relocate in all his circumstances. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.

   Complementary Protection

6. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  The Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’.

7. For the reasons set out above, the Tribunal has accepted there to be a real chance that the applicant will be targeted for serious harm in his home region of Swat Valley, KPK for the reasons of his imputed (anti-Taliban) political opinion.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[39]  It follows that the Tribunal accepts there to be a real risk that the applicant will suffer significant harm from the Taliban as a necessary and foreseeable consequence of the applicant being removed from Australia to Swat Valley or KPK more generally.

   [39] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

8. However s.36(2B)(a) of the Act provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.  That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

9. In this case, for the reasons set out above, the Tribunal has found that it would be reasonable for the applicant to relocate to an area of Pakistan such as Lahore, Islamabad or Rawalpindi where there would not be a real risk that the applicant will suffer significant harm from the Taliban on the basis of his imputed political views. Based on the Tribunal’s earlier findings and reasoning, it does not accept that the Taliban will pursue him to other parts of Pakistan on the basis of his political opinion, peace committee activities, because he smoked and listened to music or for any other reason; or that he would be easily identifiable to locals due to his accent and would be found out; or that his Pashtun ethnicity, accept and anti-Taliban political opinion will lead to significant harm in other parts of Pakistan.  While the Tribunal accepts that generalised violence occurs in those cities, for the reasons cited above the Tribunal considers the risk that the applicant will be caught up in such violence to be remote.  For the reasons set out above the Tribunal has found that relocation to an urban centre such as Lahore, Rawalpindi or Islamabad is reasonably practicable to the applicant.  On the material before it, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

   CONCLUSIONS

10. 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).

11. 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).

12. 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

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

    Nicole Burns
    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