1417846 (Refugee)

[2016] AATA 4553

1417846 (Refugee) [2016] AATA 4553 (6 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417846

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nicole Burns

DATE:6 October 2016

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 06 October 2016 at 11:18am

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

3. The applicant appeared before the Tribunal on 1 September 2016 and 9 September 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. She attended the hearing.

   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

   Country of nationality

10. Based on a copy of the applicant’s passport on the Departmental file, and given the delegate had no concerns with the applicant’s claimed nationality, the Tribunal accepts he is a national of Pakistan and has assessed his claims for protection accordingly.

11. The Tribunal accepts the applicant’s evidence as to his personal background, including that he grew up in the village of [Village 1] in the Swat region of Pakistan’s Khyber Pakhtunkhwa (KPK) Province.  In making this assessment the Tribunal notes the applicant’s passport identifies his place of birth as Swat, Pakistan and his translated birth certificate (provided to the Department in support of his [temporary] visa application) records [Village 1], [Town 1], Swat District as his place of birth.

12. The Tribunal accepts the applicant is a Sunni Muslim of Pashtun ethnicity and that he has [specified siblings].  The Tribunal accepts that his father died in 2000.  His mother lives in the family home in [Village 1] along with his brother.  The Tribunal also accepts the applicant married in 2005 and has [number] children, aged [ages], who currently live in [Village 1] with his wife, mother and brother.    

13. The Tribunal accepts the applicant completed secondary schooling in Swat and worked as [an occupation 1] from [year] until he left Pakistan in May 2013.  It accepts he lived in Swat his entire life before leaving Pakistan, with the exception of three months in [a temporary location] in Peshawar from May to August 2009 and six months in Karachi from December 2009.

    Refugee claims

14. The applicant claims to fear the Taliban on return to his home area because of his involvement and support to the Awami National Party (ANP), his peace committee membership, and involvement in other community-based activities considered separately below.  He claims he has been threatened and harmed in the past by the Taliban in Swat as a result.      

15. The applicant set out his initial claims for protection in a statutory declaration that accompanied his visa application dated [in] July 2013. He expanded upon his claims, clarified concerns raised by the delegate, and provided more detail about his situation and concerns in a statutory declaration submitted to the Tribunal, dated 3 August 2016, and his detailed oral evidence to the Tribunal, set out below where relevant. 

    Involvement with the Awami National Party (ANP)

16. In his oral evidence to the Tribunal the applicant described his and his family’s involvement with the ANP in the past in Swat.  He said his father and grandfather had supported the ANP, as had his [specified relatives], one of whom was [an office bearer] of a unit of five or so villages for the ANP in around 2002.  The applicant joined the ANP in [year], when he was in college.  In his statutory declaration provided to the Tribunal the applicant stated that he became part of the ANP youth league and attended rallies, but noted that he was not that politically active during college.  He was issued a Pashtun student federation card from the ANP whilst in college and later was issued an ANP membership card, a copy of which he provided to the Department. 

17. The applicant said he actively supported an ANP candidate in the lead up to the general elections in February 2008, [Candidate A], who lived in the village next to him.  He helped by setting up an office for him in [one village], putting up posters (he provided one of the posters at hearing), canvassing voters, and arranged gatherings for [Candidate A] to speak.  [Candidate A] won the seat for [their area] in 2008.  In [2009] he was killed by a [an attacker] in [another village], just near his house.  After that the applicant said he became more concerned about his own safety and moved to Karachi, where he stayed for six months until returning to [Village 1], in mid-2010.  The applicant said [Candidate A] was killed by the Taliban, targeted because he was an ANP politician.  Maulana Fazlullah[1] had announced earlier that ANP people were infidels and to kill them.  The applicant said that after the ceasefire (between the Taliban and the government in 2008) more than 100 ANP members have been killed in Swat. 

    [1] Former leader of the Tehreek-e-Taliban-e-Pakistan (TTP) in Swat Valley.

18. The applicant said [Candidate A’s] [relative], [Candidate B], won the by-election to replace his late [relative], in early 2010.  The applicant was not involved in this campaign because he was in Karachi at the time.  However he supported [Candidate B’s] next election campaign in relation to the 11 May 2013 general election by helping organise public rallies, distributing posters, and going door-to-door to canvas votes, as he had before (in 2008).  He also placed an advertisement in a newspaper ([named]) asking people to vote for [Candidate B] next to a photograph of the applicant with [Candidate B].  A copy of the article was provided to the Department and the applicant provided the original at the Tribunal hearing.  In his statutory declaration provided to the Tribunal the applicant stated that the ANP was running on an anti-militant platform and [Candidate B] identified eradicating the Taliban from Swat as a priority. 

19. The applicant said if he returns to Swat he will support the ANP again, noting that all his family have been involved.

20. The applicant was asked at hearing if he experienced any problems from the Taliban or others because of his support to the ANP in Swat.  He said one night in late 2008 a mortar landed on his house in [Village 1], hitting the kitchen wall.  Although he and his family members were all at home, no one was injured.  He believes he was targeted because he had seen his name on a Taliban list, along with others (including ANP members and ‘[supposed criminals]’) placed on a wall on a building in the main market in [Village 1] in mid-2008.  The names were written in Pashto and there was little instruction, apart from a statement that those on the list should stop doing their work.  He thinks his name was on the list because of his involvement with a volunteer community group ([Community Group 1] (discussed below)), as well as his involvement with the ANP.  In his statutory declaration provided to the Tribunal the applicant listed a number of other names involved in [Community Group 1] who were also on that list, two of whom were targeted and killed at the end of 2008. 

21. The Tribunal has some concerns with the applicant’s claims that his family members - that is [specified relatives], father and grandfather - had been involved with the ANP for a long time, given his failure to mention this fact in his statutory declaration provided to the Department.  At hearing the applicant said he thought he had.  Another concern the Tribunal has with the applicant’s claims in this respect is the fact that he placed an advertisement in a local newspaper containing his photograph next to an ANP candidate in the lead up to the 2013 general elections (and just prior to his departure from Pakistan), knowing that there was great risk in doing so.  Asked at hearing why he did this, given his claims that the Taliban targeted ANP members, the applicant said his older relatives had supported the party and given all the problems he had to support the party. 

22. Despite these concerns, the Tribunal notes the applicant has consistently claimed that he was an ANP member and supporter and the Tribunal found his oral evidence in this regard was detailed, spontaneous and straightforward and consistent with his detailed written statement provided to the Tribunal pre-hearing.  He demonstrated reasonable knowledge of the history of the party in Swat and key players for example, which would have been difficult to fabricate.  The Tribunal therefore accepts that the applicant and a number of his [relatives] were ANP members and have actively supported the party in the past.  The Tribunal accepts that he supported [Candidate A’s] election campaign in 2008 and [Candidate A’s] [relative’s] campaign in early 2013, prior to coming to Australia.  The Tribunal has given some weight to copies of the applicant’s ANP membership card and ANP poster containing this candidate provided.  The Tribunal accepts that the applicant’s house was hit by a mortar attack in late 2008, most likely by Taliban fighters given their insurgent activities in the area during this time.  The Tribunal accepts the applicant’s claims that he saw his name on a Taliban list prior to this incident, he presumes in large part because of his work with [Community Group 1] and support to the ANP, and therefore considered this mortar attack was a targeted one.  For reasons below the Tribunal accepts the applicant’s claims to have been threatened by the Taliban because of his involvement with [Community Group 1] (and their offices and [premises] burnt) and therefore finds this plausible. 

    Involvement with ‘[Community Group 1]

23. The applicant claims he and his [Relative B] ([named]) established a volunteer youth group around 2002 that implemented projects ([project examples] for example) in their village, and helped resolve community disputes and issues. They also established a volunteer [service] – which he described more like a [specified premises] at hearing – in [Village 1] around 2004 where the poor could receive basic [services] for free.  The costs to rent the buildings that housed the [premises] and utilities were covered by two [Business 1] companies. A [worker] ([Mr A]) offered his services for free and a [another] worker joined the team as well after the [premises] was established. The applicant provided a letter[2] from [Mr A] to the Tribunal in which he confirms his work at the volunteer [service premises] in the past.  The applicant told the Tribunal he stopped working for [Community Group 1] in 2007 after the Taliban (Maulana Fazlullah’s men in particular) burnt down their office and the volunteer [service premises].  He said the Taliban burnt down other businesses that night, including music shops.  A Taliban member and former class mate, [Mr B], had warned him to close the [premises] in early 2007.  Specifically [Mr B] had arrived at their office one Friday (along with another Taliban member), said he was there on behalf of Maulana Fazlullah, and told them to stop their community activities.  They continued however because at that time they did not think the Taliban would carry through with their threats. The applicant thinks the Taliban opposed [the service] staff seeing [specific clients], including providing [specific services]. 

    [2] Dated [in] August 2016

24. The Tribunal accepts the applicant’s claims to have established [Community Group 1] with his [Relative B] in around 2002 and implemented a number of community-based projects, including a [service premises] for the poor, until they ceased [services] at the end of 2007 after the Taliban burnt their office and the [premises].  The applicant’s oral evidence was detailed and spontaneous in this respect, and consistent with his evidence before the Department. The Tribunal also gives weight to the letter from [Mr A] provided, confirming his involvement with the group. The Tribunal accepts the applicant received a warning from the Taliban in early 2007 to stop his work through [Community Group 1], which he initially ignored.  However after 2007 the applicant said the group ceased its [services] and the applicant did not experience any further problems from the Taliban in relation to his work with [Community Group 1].  The applicant said [Mr A] re-established the [service premises] after the military took control of Swat in 2009, which he operates until this day. He has not experienced any problems from the Taliban as a result, because he now runs it as a private business. 

25. At the hearing the applicant said two of his friends who also worked for [Community Group 1] were killed by the Taliban in Swat. Their names had been on the same list as the applicant.  He said one, [named], was killed by the Taliban in August 2008 and the other, [named] (also an ANP member) was killed in December 2008.  The Tribunal accepts the applicant’s claims in this regard and considers there may have been a number of reasons why these men were killed by the Taliban, including their work for [Community Group 1] (and ANP involvement in one of their cases). 

26. The applicant also told the Tribunal that in 2004 he also tried to establish a small [agency] for women in his district.  However because their (Pashtun) husbands would not allow them to go [to this agency] the initiative failed.  The Tribunal accepts the applicant’s claims in this respect.

    Peace committee involvement

27. In his oral evidence to the Tribunal the applicant said he helped establish a peace committee in his neighbourhood (mohallah) – consisting of around [number] households - from around September 2009, after returning from three months at [a temporary location] in Peshawar.  He was a contact point for the army and the people in his mohallah and also helped roster night patrols which involved one person from each household. In his statutory declaration provided to the Tribunal the applicant stated that in addition the army would call him and his [Relative A] to perform specific tasks for them, including calling identifying homes of suspected Taliban members.  In support of his claims in this respect the applicant provided a letter[3] from [Mr C], [Office Bearer] of the [named] Peace Committee, which he explained is the committee for the whole village of [Village 1].  (He said the [senior office bearer] is [name].)  He said [Mr C] has survived three attacks by the Taliban, one [in recent months] when he was fired upon whilst on his farm.  This last attack is confirmed by country information[4] and the Tribunal accepts the applicant’s claims in this regard. 

    [3] Dated [in] August 2016

    [4] [Deleted.]

28. The applicant said he was attacked from behind one evening in 2010 after closing his [Business 1] for the day. His assailant cut his [specified body part] and hand when the applicant was trying to flee.  The applicant showed his scars allegedly as a result of the attack at the hearing.  He said he managed to push his assailant away and then he ran.  The applicant said he did not recognise his attacker but said he must be Taliban. His attacker questioned the applicant how long he thought he could escape from “us.” The applicant speculated at hearing that he was attacked because he was busy with the peace committee around that time and the Tribunal notes in his statutory declaration provided he stated that he considered it punishment for his work in the committee, with [Community Group 1] or the ANP.  After the attack the applicant went home and his brother, on seeing his injuries, took him to [named] hospital in [City 1] situated about [number] kilometres away.  There the applicant had stitches in his hand and [other specified body part] and was released after about an hour.  He provided a letter from the hospital dated [in] April 2014 and explained that was the date the letter was issued, to his brother. 

29. The applicant said he was involved with the peace committee until he left Pakistan in May 2013. 

30. Independent sources indicate that as part of its counter terrorism policy in 2008, the Pakistan army began encouraging tribal elders to form anti-Taliban militias and lashkars to assist the security forces in maintaining peace in areas cleared of militants.[5]

    [5] Pakistan Institute for Peace Studies 2011 Pakistan Security Report 2010 January at p6

31. The Tribunal accepts the applicant’s claims that he was involved with his local peace committee from around September 2009 until he left Pakistan in May 2013, noting his evidence to the Tribunal in that respect was detailed, spontaneous and consistent with his written claims to Department and Tribunal.  The Tribunal has also given some weight to the letter from the [Office Bearer] of the [Village 1] peace committee provided.  The applicant indicated that he was active with the committee, but not overly so, given his work commitments.  The Tribunal also accepts the applicant was attacked in 2010, and stabbed in the [specified body part] and hand.  His claim that it was the Taliban, possibly because of his work with the peace committee, whilst speculative is plausible.  The Tribunal has given some weight to the documents from the hospital provided, as evidence of his injuries from the attack.    

1. For the reasons above the Tribunal accepts the applicant’s claims that he was a member and active supporter of the ANP in Swat from [year]; that he established and ran a community group – [Community Group 1] (which included the operation of a [service premises]) from 2002 to 2007; and that he was a member of his local peace committee from September 2009 until he left Pakistan in March 2013.  The Tribunal accepts that the applicant was directly threatened by the Taliban in early 2007 because of his work with [Community Group 1] and that the Taliban burnt down their offices and [premises] at the end of 2007. The Tribunal also accepts that the applicant was attacked and cut by a man, possibly Taliban, in 2010 and that the attack may have been due to his community, political and/or peace committee involvement.  The Tribunal is also willing to accept that the applicant’s name may have appeared on a Taliban list in mid-2008 because of his work with [Community Group 1], among other things. 

2. The Tribunal had some concerns with the applicant’s evidence that he returned to Swat after spending six months in Karachi from the end of 2009, given his claims to have been fearful of his life in Swat.  At hearing the applicant said in Karachi the Taliban killed lots of people as well, including peace committee members and those considered to have supported the army from Swat.  He said he returned to Swat in mid-2010, hopeful that the situation was changing because the army had killed four Taliban in his area [at that time].  This gave him hope that the army was addressing security concerns.  The Tribunal accepts this explanation as plausible.  

   Fear of serious harm in Swat District in the foreseeable future

3. Given these findings about the applicant’s political and community profile in Swat and what it accepts of incidences of past harm and threats directed at him, the Tribunal has gone on to consider if the applicant faces a real chance of persecution by the Taliban for any Convention reason on return to Swat in the foreseeable future.

4. It has been submitted that the applicant fears serious harm at the hands of the Taliban on return to Swat on account of his actual and imputed political or religious views (‘pro-military and pro-Pakistani government; anti-Taliban informed by his work with the peace committee and augmented by his lengthy stay in Australia; and secular/liberal on account of his membership of the ANP) and membership of the particular social groups (‘former/current members of citizens ‘defence committees’ in Swat’; ‘Liberal/secular residents in Swat’; and ‘Returnees from Western countries’).  It is submitted that the applicant may also be imputed with a pro-government and pro-military stance because he was a community organiser with [Community Group 1] and was the driving force behind establishing a community [premises] which [provided assistance] and served women.

5. In her written submission to the Tribunal the representative referred to country information from a variety of sources about the continued targeting of ANP members and leaders in Swat and the ongoing activities of the TTP and its associated militias in Swat (including reports of targeted killings), arguing that the TTP maintains an operational presence throughout Swat valley, with the capacity and propensity to carry out attacks against perceived opponents, especially against political opponents and defence committee members.  It is submitted that the applicant will continue to be considered a TTP opponent because of his affiliation with the ANP, community organising, and his former (and likely future) role with the [Village 1] defence committee and as a result faces threats and danger on return, as illustrated but the country information referenced. 

6. In his statutory declaration provided to the Tribunal the applicant stated that between 2010 and 2013 there were reports of killings of peace committee members “all the time” and listed the names of seven members who were murdered from his immediate region because they were involved in peace committees. 

7. The Tribunal has taken into account these submissions and the country information contained within them, as well as the applicant’s articulated fears about returning to Swat.

8. For following reasons and having regard to independent country information about ongoing attacks against peace committee members and ANP supporters in Swat, 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 and ANP supporter. 

9. 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.[6]

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

10. Independent information before the Tribunal indicates that, despite the defeat of militants in Swat (operating under the umbrella of the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM), which has been operationally linked to the Tehrik-e-Taliban Pakistan (TTP) 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.[7] 

    [7] 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’.[8] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[9] who stated that the Taliban in Swat were defeated but ‘still have presence there’, citing an attack on security personnel in the region. Cloughley characterises the Taliban in Swat as being ‘down but…not out’.[10] Notably, 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.[11]

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

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

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

11. There is also significant evidence of militant attacks against peace committee members[12].  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.[13] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[14] 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.[15]

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

    [13] 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 <

    [14] ‘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 <

12. An investigative report by Al Jazeera in late 2014 suggests the number of peace committee/village defence committee (VDC) fatalities in the Swat Valley is much higher than reported by the military and other sources,[16]referring to at least 22 VDC members having been killed in targeted attacks across the valley this year alone. 

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

13. 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.’[17]  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.[18]

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

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

14. More recently, an article in the Friday Times reported 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”.[19]

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

15. There have been further security incidents in the Swat Valley in 2016, with fatal attacks on VDC members, police and people with an anti-Taliban profile,[20] including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in [two other locations].[21] 

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

    [21]   [Deleted.]

16. 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.[22] In April 2010 two peace committee members in [Village 1] were killed and three injured by ‘assailants’ according to [two sources].[23]

    [22] [Deleted.] 

    [23] [Deleted.] 

17. In early June 2016, there were reports about village defence committee member [named], escaping an attempt on his life in [Swat district].[24]

    [24] [Deleted.]

18. 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.[25] 

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

19. 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 and ANP supporters. 

20. 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.   As would his support to the ANP around election times, even if limited.  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. 

21. The Tribunal accepts the submission about targeted attacks against peace committee members and ANP members, evidenced by country information from a variety of sources.  Whilst the Tribunal considers that the primary target of attacks against ANP member is against high ranking members, the Tribunal accepts as plausible that other ANP members may have been harmed in the commission of these attacks.  Similarly, whilst many reports indicate that peace committee leaders have been targeted, some members of peace committees who were not described as being leaders have been harmed.

22. The country information cited above establishes that there is more than a remote possibility that as a peace committee member and ANP supporter 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 Pakhtunkhwa 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).

23. Given this finding the Tribunal has not gone on to consider the other claims and submissions in this case, for example in relation to the applicant’s fear of serious harm on return to KPK as a returnee from the West, and/or because of his secular/liberal views.

    Availability of state protection

24. 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.   In her written submission to the Tribunal[26] the representative argues that country information confirms the dire inadequacy of the KPK government and state authorities to curb militancy, referring among other things to information in a 2013 UK Home Office report.  

    [26] Dated 9 August 2016

25. 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.

26. 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 in December 2014.  However DFAT 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.[27]

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

27. 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.[28]

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

28. The 2014 Al Jazeera report (referenced above) 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[29].

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

29. Although a number of sources indicate that the authorities control most parts of the Swat Valley, the information before the Tribunal, referred to above and in the independent information provided by the applicant’s representative, 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 Swat District or elsewhere in Khyber Pakhtunkhwa, now or in the reasonably foreseeable future.

    Relocation within Pakistan

1. Having accepted that the applicant has a well-founded fear of persecution in [Village 1], 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.    

2. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.

3. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.  The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[30] 

   [30] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.

4. In her oral and written submission to the Tribunal the representative argued that it is neither safe nor reasonable for the applicant, considering all his circumstances, to relocate to another part of Pakistan to avoid the harm he fears from the Taliban in Swat.  Specifically she submitted that:

   ·The applicant states that the Taliban has extensive networks throughout Pakistan and no region is immune from their threat.  She referred to country information which, she submits, confirms the close connection between the Punjabi Taliban and the TTP/former TNSM in KPK, including from the South Asia Terrorism Portal (SATP) (2015).

   ·There are reports of the targeting of Pashtun immigrants in major urban centres in Pakistan who are not in the category of Pashtuns who have lived there for generations.  There are also reports of Pashtuns being targeted by groups for extortion.

   ·It is submitted that Karachi is out of the question (for relocation purposes) because of clashes between political parties (the MQM and ANP in particular) and noting the applicant’s unsuccessful attempt to live there in 2009/2010.

   ·The applicant [has a severe medical condition], which would make relocation to another area without family or social support unreasonable.  Further, Pakistan’s [relevant] care facilities are inadequate, as indicated in country information cited in earlier (differently constituted) Tribunal decisions and news articles from sources such as the Express Tribune and Al Jazeera. 

   ·It is submitted that without [relevant] care in a stable environment, the applicant’s [condition] is likely to deteriorate irretrievably, with reference made to various literature about the effects of continued exposure to [stressful situations] for those who suffer from [related conditions].

   ·The applicant is not conversant in other major languages and his Pashto is limited by his dialect, making communication in urban centres limited. 

   ·It would not be possible for him to transfer his skills – for example to set up a [Business 1] in other parts of Pakistan given he is not qualified to do so - even if he had the capital to establish such a business. 

5. In his statutory declaration provided to the Tribunal the applicant stated that he cannot live anywhere else in Pakistan to find safety; that Pashtuns are singled out and discriminated everywhere; that he has limited education and has no family or contacts elsewhere; and that it would be impossible for him to find a job to support himself and his family.  Further, he stated that he has been seeing [two specialists] in Australia and even before coming to Australia has been taking [medication]. 

6. At hearing the applicant said he could not live elsewhere for a number of reasons, including the fact that the Taliban are everywhere in Pakistan; he would have difficulty renting a house elsewhere as a Pashtun, because “everyone” considers Pashtuns terrorists; he has no particular skills or education to take care of his family in other parts of Pakistan; and he has no friends or relatives in other parts of Pakistan.  He also claimed that there are targeted killings in other parts of Pakistan, including of peace committee members and ANP supporters. He said [Mr C’s] ([Office Bearer] of the [Village 1] peace committee) [relative] was killed in Karachi in 2012.  Also the applicant’s [Relative C, named], was shot and killed by the TTP in Karachi in July 2012 because he belonged to the ANP.  After the hearing he provided a translated article from Urdu to English in [a different named] newspaper dated [in] June 2012 which confirmed the death of [Relative C].  The Tribunal accepts these killings but notes they were targeted at leaders and professionals.

7. The Tribunal has considered these submissions and the applicant’s concerns about relocating to another part of Pakistan.  The Tribunal considers that the applicant’s activities with the peace committee and ANP, among other things, are localised to his home area of Swat and Khyber Pakhtunkhwa and that the harm as a result he fears is localised to those areas.  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 or Rawalpindi, on the basis of his own political opinions and activities. None of the independent sources before the Tribunal indicate that members of peace committees have been targeted for harm in Islamabad or Rawalpindi for example.  On the evidence before it, the Tribunal does not accept that the applicant’s actual or imputed political views make his relocation to Islamabad or Rawalpindi, for instance, unsafe for the applicant.

8. It is also submitted that relocation is not reasonable in the applicant’s case because of his [medical] condition and given he and his immediate family would be required to fend for themselves in another region of Pakistan without any family or social support. Also that Pakistan lacks adequate [specific medical] care.

9. The Tribunal accepts the applicant has suffered significant [distress] as a result of events in Pakistan, including surviving a knife attack in 2010 and being directly threatened by the Taliban.  The Tribunal accepts that the applicant’s home is located in [Village 1], Swat where the Tribunal has found he cannot safely return.

10. Medical evidence before the Tribunal indicates that the applicant has been receiving treatment for [a medical condition] in Australia since April 2014 and his treatment in the form of [treatment details] continues.  In a report from his treating [specialist, named], dated [in] August 2016 he stated that,

    His [condition] having lasted over two years in duration is now chronic and will need ongoing and long term [treatment].

11. The applicant told the Tribunal that he started to take medication in Pakistan – primarily [specific medication] - before coming to Australia, from around 2007 when the security situation worsened.  He said he saw [one specialist] in Australia a number of times in 2013, prior to seeing his [different specialist].   

12. The Tribunal accepts the applicant has ongoing [conditions] that will impact on his ability to relocate, including his ability to find employment and housing. Whilst he has had employment experience in the [Business 1] industry in KPK, these skills may not be transferable, given he is not a qualified [occupation 1].  Combined with his [conditions], which his treating doctor has described as chronic, ongoing and requiring long term treatment, the Tribunal considers it would be very difficult for him to secure work and re-establish his life outside Swat Valley where he has no family or social supports.  In these circumstances, the Tribunal does not consider it reasonable to expect the applicant to relocate himself or his family to another part of Pakistan to escape the harm he fears in [Village 1], Swat and Khyber-Pakhtunkhwa.

13. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan in the reasonably foreseeable future, for the Convention reason of his political opinion. For all of these reasons 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).

    CONCLUSION

14. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    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