1517722 (Refugee)

[2017] AATA 902

1517722 (Refugee) [2017] AATA 902 (8 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517722

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Alison Murphy

DATE:8 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 May 2017 at 1:24pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Imputed political opinion – Peace committee members – Opposition to Taliban – Pakistan Army offensive in Swat Valley – Threats of killing – State protection – Internal relocation

LEGISLATION
Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994 Schedule 2

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1

SZATV v MIAC (2007) 233 CLR 18

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 is [an age] year old male from the Swat District in Pakistan’s Khyber Pakhtunkhwa province.  He applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] December 2015.

3. The applicant appeared before the Tribunal on 2 May 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The issue in this case is whether the applicant meets any of the criteria set out in s.36(2). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    ASSESSMENT OF CLAIMS

    Credibility

11. I consider the applicant to be a credible witness.  His evidence is in all material respects consistent with independent sources and his own previous statements.  At hearing he answered the Tribunal’s questions spontaneously and in great detail.  I accept his account of his experiences in Pakistan.

12. I give weight to the reports of [Psychologist A], dated [in] April 2017 and [in] May 2016.  [Psychologist A] reports that the applicant was referred to her by his GP after being diagnosed with [specified conditions]. I accept her assessment that the applicant suffers from [specified conditions] and that his symptoms are consistent with [another condition]. 

    Country of nationality

13. It is not in dispute that the applicant is Pakistani national and he has produced to the department his passport, national identity card, [professional work and identity documents], copies of which are contained on the departmental file.  I find that the applicant is a citizen of country Pakistan and have assessed his claims against that country.

    The applicant’s personal background

14. The applicant’s evidence as to his personal background is consistent with his identity documents.  I find that he grew up in the village of [Village 1], Swat District in Pakistan’s Khyber Pakhtunkhwa province.  The applicant gave evidence that [Village 1] is a village of about [number] people made up of several mahallah or sub-villages.  In making this assessment I note that his [professional] identity document identifies his place of birth as Swat, Pakistan.

15. I accept that the applicant is of Pashtun ethnicity and Muslim religion and he is married with [number] children.  At hearing he told me his wife and [number] children live mostly with his family on the family land in [Village 1], but when she is unwell with [specified] problems she takes the children and returns to her own family in [her home] village because she receives more support there.  He is educated to year [number] level and has worked as [an occupation 1] between 2006 and 2014, visiting numerous countries in that capacity including [various countries].  I accept that the applicant was unable to continue his studies but values education highly and wishes all [children] to have an education.

16. I accept that the applicant’s father owned farming lands and his [family]  have built up the family business to include shops and market stalls. I accept that the applicant completed [number] grade in about [year] and worked in the family business before being employed as [an occupation 1] in 2006.  I accept the family were comfortable and well regarded in their village prior to the Taliban’s infiltration of Swat during the period 2006 – 2009.

    Events in Swat Valley, 2006 - 2009

17. I accept the applicant’s evidence about events in Swat during 2006 – 2009, noting it to be entirely consistent with country information about the situation in Swat during that period.  Independent sources confirm that the Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement.  Maulana Fazlullah assumed control of TNSM after his precedessor Sufi Mohammed was arrested and was widely known for his use of illegal FM radio stations in Swat.  At that time his demands are reported to have been moderate, calling for ‘social parity, quick justice, provision of civic facilities, more jobs for Swatis, and redistribution of property’.[1] He is reported to have enjoyed wide local support in the initial stages of his rule.

    [1] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp. 295-298; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November, p. 39 <

18. I accept that residents of Swat who were at first unalarmed by Fazlullah’s preachings later became concerned at the actions of the Taliban.  At hearing the applicant told me that they banned barbers from shaving men’s beards, insisted adult women including teachers and doctors wore burquas, closed schools attended by girls and banned music, closing down shops selling CDs.  He described the Taliban patrolling the streets heavily armed and setting up their own checkpoints in Swat.

19. It is reported that after affiliating with the Tehrik-e-Taliban in 2007 Fazlullah set up a parallel government in Swat, virtually controlling the area until 2009 when he and his group were defeated in an army offensive.  It is reported that Fazlullah’s militants, armed with sophisticated weapons, formed militias that functioned both as a criminal and a moral police, forcing the closure of development organisations whom they accused of immorality by employing female staff, imprisoning female government employees on charges that they were working with men who were not related to them by blood or marriage, opposing public vaccination campaigns and bombing girls’ schools[2].

    [2] Siddique, Q. 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November, pp. 39-43 < Kronstadt, K.A. 2010, ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June, p. 19 

20. I accept that in early 2008, the applicant and a number of other residents of [Village 1] village met at the applicant’s home to discuss their concerns about the growing restrictions on their freedoms and resolved to approach the Taliban directly.  I accept that a group of men including the applicant approached the local amir (leader) of the Taliban in the village and asked him to restrict their activities in the area which had stopped girls attending school and caused many people to flee the area.  I accept his evidence that their request was refused by the amir who laughed and told them the area was under the control of Fazlullah.  I accept the applicant and the group of men who had approached the amir later invited a group of Taliban residents of their village to meet with them in the applicant’s guesthouse to try and resolve the issues but they were told by those men that they should join them, not try to stop them.

21. I accept that in mid-2008, the Taliban closed the village school for girls and established a base in the building.  I accept that the applicant became involved in an altercation with several Taliban members outside the [location], before being dragged into the [location] and beaten by about [number] men.  At hearing the applicant told me they were all men from his village and he could name about half of them.  I accept that he was beaten until he was unconscious and thrown outside where another villager took him to hospital.  I accept his evidence that the visible scarring on his [body] result from that beating and that he has other scars on his head.  I note that his evidence at hearing about his injuries scarring is consistent with the contents of medical reports from [a named doctor] of [town name], Swat dated [in] June 2008 which are annexed to [Psychologist A’s] report.  I accept those medical reports to be genuine.

22. I accept that the applicant [left Pakistan] in August 2008 and was outside of Pakistan until March 2009, noting that to be consistent with his [occupational] [record].  I accept that during this time, the Taliban killed a number of residents of his village including [several] of the applicant’s friends who also opposed the Taliban, [names specified].  I accept that some of those men had been at the meeting with the Taliban at the applicant’s house and had also attended the meeting with the amir and that other attendees of those meetings fled the village.

23. I accept that in February 2009, while the applicant was still outside of Pakistan, his [Relative A] went missing and his body was found four days later in the nearby village of [name].  I accept the applicant’s evidence at hearing that [name] was his [Relative A] from [their home] village whom the applicant had brought to his own village of [Village 1] so that he could continue his education.  I accept that he was close to the applicant and shared his views opposing the Talibanisation of the region.

24. I accept that the applicant called his family from Karachi when [he arrived] in Pakistan in March 2009 who told him it was not safe for him to return to the village.  I accept he remained in Karachi until the army asked Swat residents to evacuate the area while they launched an offensive against the Taliban and that he joined his family in Mardan in about April 2009.  Independent sources indicate the April 2009 government offensive in the Swat Valley aimed at eliminating the Taliban from the region triggered a massive displacement crisis as some two million civilians fled the fighting to adjoining districts. The April Offensive reportedly included heavy artillery, aerial bombardments and urban warfare, causing enormous destruction of towns, agriculture lands and infrastructure and it is estimated that thousands died and millions of refugees fled[3]. 

    [3] Human Rights Watch 2010, World Report 2010: Pakistan, January; Macey, J. 2009, ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June [3] ‘Pakistan military ‘wins back Swat capital’’ 2009, ABC News, source: BBC/AFP, 30 May >

    I accept the applicant and his family returned to [Village 1] in about July 2009 at the end of the Army Offensive to find widespread damage to their home and village and the area heavily militarised.  I accept that the Army required residents to carry security passes and to establish lashkars or peace committees. Independent sources report that as part of its counter terrorism policy, the Pakistan Army encouraged tribal elders to form anti-Taliban militias and lashkars to assist the security forces in maintaining peace in areas cleared of militants[4].  I accept the applicant’s evidence that those committees comprised about 20 people being 2-3 representative of each mahallah (sub-village) and that the applicant was a member of this committee together with a friend.  I accept his evidence that people remained scared of the Taliban and so it was difficult to find people prepared to be on the committee, as a result of which the applicant’s [family member] agreed to be the third representative from their mahallah.

    [4] Pak Institute for Peace Studies 2011 Pakistan Security Report 2010 Jan at p6

25. I accept that in his role as Peace Committee member, the applicant conducted night patrols, identified residents who were Taliban members to the army at funerals, prayers and other public events, produced lists of Taliban residents to the army and also approached their families to ask them to surrender their Taliban family members.  I accept his evidence that on the army’s advice, the Peace Committee gave undertakings that those who surrendered to the army would be treated more leniently than those who were captured and would be rehabilitated and given vocational education. I accept his evidence that this did not occur, but rather the Taliban who surrendered were denied food, clothing and beaten so badly that many died.  In making that assessment I note that independent sources indicate that the human rights advocates and local residents expressed concerns about the Pakistani Army’s activities in Swat during the Offensive, including that it may have committed war crimes during both the offensive and the cleaning up operations, both against the Taliban and civilians in the area[5].  The UK Home Office reported that many men held by the Pakistani army were subjected to enforced disappearance, killed, tortured or otherwise ill-treated while in custody[6].  I accept that the army’s actions against those who surrendered served to turn their families against the Peace Committee members who had made promises about their safety.

    [5] ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June Perlez, J. & Zubair Shah, P. 2009, ‘Pakistan Army Said to Be Linked to Swat Killings’, New York Times, 14 September

    [6] United Kingdom: Home Office, Country of Origin Information Report - Pakistan, 9 August 2013, available at: 9.25

26. I accept that in September 2009, the applicant was present in the mosque when it was attacked by the Taliban, resulting in the shooting of one Committee member and three Taliban members and the [death] of another.  I accept this increased the enmity between the Peace Committee and the area’s Taliban residents.  In making this assessment I note that attacks by the Taliban against members of lashkars or Peace Committees have been widely reported.  In 2008, 22 peace committee members were reported killed by Taliban fighters in FATA and the houses of others burned.[7]  In April 2010, two members of the peace committee in Koza Bandai in Swat Valley, named as Behr-e-Kharam and Aqil Shah, were killed.[8] A BBC news report from 30 April 2010 reported:

    One year on from the launch of the massive army offensive against Taliban militants around Pakistan's Swat valley, peace still eludes local residents. This is especially the case for people on the government-backed peace committees which have been set up across the valley. ‘The Taliban killed my uncle,’ says Sabih-ur-Rahman. His uncle was the head of one such committee near the town of Mingora. Mr Rahman has now taken on that dangerous mantle. The aim of the peace committees is to help locals ensure that their neighbourhoods are secure. They also provide information to the army in case of militant activity. As such they are on the front line - and primary targets for the Taliban.[9]

    [7] 22 peace committee members slain in Pakistan’ The New York Times 25 June 2008

    [8] Tavernise, S. and Shah, P. Z. 2010, ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April BBC News 30 April 2010 ‘Militants disrupt peace in Swat valley

In October 2012, Central Asia Online quoted Swat parliamentarian Sher Shah Khan as stating that Taliban militants targeted peace activists. The article also noted:

Political elders and leaders of anti-Taliban peace committees of Swat are a key target of the Taliban because they played a key role in assisting law enforcement agencies in the operation against the militants," said Saifullah Khan, a leader of Nekpikhel Qaumi Jirga, an anti-Taliban armed volunteer force formed in Kabal Tehsil to keep the remaining militants at bay.

. . .

The district administration, aware of the threat, is protecting schools as well as civil society activists and leaders of various political parties and of anti-Taliban peace committees.[10]

[10] Rehman, . Z, 2012, ‘Swat Taliban Return Impossible’, Central Asia Online, 17 October,

1. The applicant was outside of Pakistan [for work] between March 2010 and November 2011, except for a brief period in January 2011 during which he remained in Karachi.  He returned to his village in November 2011 and resumed his work with the Peace Committee before receiving a phone call from a Taliban member who was known to him in July 2012.  At hearing the applicant told me that the caller was [Mr A], son of [Mr B], both of whom were from the same village as the applicant.  He told me he knew [Mr A] from his role as [an occupation] in his family’s market stalls, where [Mr A] worked with his [family member]. 

2. I accept his evidence that [Mr A] was abusive to the applicant during this phone call, telling him it was his fault that [Mr A’s family member] had been killed and his family’s land turned into a [different purpose]. He told the applicant that they had the chance to kill him at the [location] a few years earlier and it would have been better if they had done so.  He threatened the applicant telling him when they saw him they would kill him.

3. I accept the applicant gave [Mr A’s] name and phone number to the Army, asking them to trace it and arrest him.  I accept his evidence that several other members of the Peace Committee also received threats and the Committee discussed what it should do.  I accept that two other men from the applicant’s village was also [occupation 1s] and Peace Committee members and that one of them, [Mr C], was attacked and injured by the Taliban in Karachi.  I accept his evidence that when [Mr C] recovered from his injuries, he [departed] Pakistan, ultimately arriving in [Country 1] where he applied for and was granted protection.  I accept that the second [occupation 1] from [Village 1], [named], was killed in Karachi the day before he was due to [leave Pakistan for work].  I accept the applicant believes that Taliban supporters in the village were giving information to Karachi based extremists about those who had opposed them in Swat.

4. I accept the applicant’s consistent evidence that he saw the amir from his village with whom he and others had met in April 2008 in Karachi in about November 2013.  I accept that the amir chased the applicant through the backstreets of the [location] before he was able to escape.  I accept that the applicant remained in hiding in Karachi until he was able to arrange another [work] contract, departing Karachi [in] January 2014.  He entered Australia on a [temporary] visa in March 2014 and lodged his application for protection [in] April 2014.

   Risk of future harm

5. The security situation in Swat has fluctuated since the Army Offensive in 2009 which initially brought significant improvements in the security situation:

   Five years ago, Pakistani soldiers flooded into Swat as part of an operation to banish the Taliban from the valley. The offensive became a cherished victory for Pakistani generals, who presented it as evidence of their counterinsurgency prowess.

   But a steady drumbeat of killings, by both militants and soldiers, has whipped up fear in Swat in recent years and blighted hopes for a return to normality in a place known for its beauty and tourist industry. Taliban fighters have slowly crept back to attack and kill pro-government community leaders. The army faces accusations of gross human rights abuses, including the execution of at least dozens of detainees whose bodies have recently been returned to their families.

   And Maulana Fazlullah, the ruthless cleric and militant commander who led the original Swat uprising in 2007, has evaded capture and risen to greater heights as the supreme leader of the Pakistani Taliban.

   “For a long time there was a narrative of the Swat operation as a total success,” said Rahimullah Yousafzai, a veteran journalist based in Peshawar. “Now that success is being questioned.”

   Few doubt that conditions in Swat have improved dramatically. Bloodied bodies no longer hang from traffic lights in the town square where the Taliban once executed their enemies. Markets are bustling, and more girls are attending school.

   But the campaign of Taliban violence, though sporadic, has rattled public confidence. “This is a controlled peace,” said Akbar Khan, a 38-year-old bookseller. And it offers a sobering check on the limits of military engagement at a time when the army is engaged in a fresh anti-Taliban drive in the tribal district of North Waziristan.

6. The Dawn newspaper reported in 2012 that despite recent militant attacks, security in Swat was far better than a few years ago due to the military presence in the region.[11]  In the same year, South Asia Terrorism Portal’s (SATP) Khyber Pakhtunkhwa Assessment for 2012 reported that “militants appear to have established an upper hand in the region in their fight against the state’s forces”.[12] 

   [11] ‘Pakistani Army Strategy in Question After Attacks’, 2012, Dawn Newspaper, 22 October,

   [12] South Asia Terrorism Portal (SATP) 2012, Khyber Pakhtunkhwa Assessment – 2012 < > 

7. In 2014, SATP’s Khyber Pakhtunkhwa Assessment reported that the declining trend in terrorism related fatalities in Khyber Pakhtunkhwa since 2010 was reversed in 2013, which recorded at least 936 fatalities, including 603 civilians, 172 security personnel and 161 militants, in 210 incidents of killing during 2013[13].  In a May 2014 report in The News International, a popular Pakistan based newspaper, Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[14] stated that the Taliban in Swat were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region. 

   [13] South Asia Terrorism Portal (SATP) 2012, Khyber Pakhtunkhwa Assessment – 2014 at

   [14] ‘Brian Cloughley Bio’ n.d., Brian Cloughley <

8. The security situation in Khyber Pakhtunkhwa reportedly improved in the first half of 2015, before deteriorating again in the second half of 2015 and the first part of 2016.  PIPS reported that the incidents of terrorism in Khyber Pahktunkhwa declined by 61% in 2015 from 2014, killing 206 people and injuring 268[15]. SATP reports an increase in terrorist violence in Khyber Pakhtunkhwa during the second half of 2015 and the first part of 2016, including two major incidents in January 2016. 

   [15] Pak Institute for Peace Studies 2016, Pakistan Security Report 2015, January, pp.13-14 

9. On 20 January 2016 terrorists stormed Bacha Khan University in the Charsadda district killing at least 21 and injuring 35.  On 19 January 2016 a suicide bomber targeted the tribal security force at a checkpoint, killing 12 people and injuring 39 others.  The TTP claimed responsibility for both attacks[16].  SATP reports:

   . . . the attack on January 20, 2016 clearly demonstrates that the terrorists retain capacities to execute significant attacks at will,  Moreover, through 2015, the number of the rise in extortion activities and the recent incidents of killing in the Province raise doubts over the quality and impact of such arrests and detentions [

   [16] SATP 2018 Khyber Pakhtunkhwa  Assessment 2016 at  >

   In 2016 DFAT reported that Pakistan continues to face security threats from terrorist, militant and sectarian groups, although levels of generalised and sectarian violence throughout the country has substantially reduced since the commencement of the Pakistani government’s assertive counter-terrorism military operation Zarb-e-Azb in June 2014.  However DFAT reports that militant sleeper cells remain in many urban centres and continue to target state and civilian infrastructure and the rugged terrain and porous borders of Pakistan’s tribal areas and border with Afghanistan present ongoing challenges for maintaining security:

   2.29 The Taliban insurgency and the war on terrorism have claimed more than 57,000 lives since 2001. Conflict in the FATA and Khyber Pakhtunkhwa remains an important factor for internal displacement and external migration. Approximately 1.6 million people were displaced by security operations in Pakistan’s north-west region from January-September 2015, for example. Many of these Temporary Displaced Persons (TDPs) have begun to voluntarily return to the FATA because of improvements in security (see ‘Internal Relocation’ below).

   2.30 The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA, and varies depending on the location of Pakistan military operations. Urban centres also tend to be more secure than rural areas (see ‘Internal Relocation’ below), with the exception of Karachi. This includes ‘cantonments,’ or secured areas, although militant groups have also specifically targeted these areas (see ‘Militant Groups’ below).

   . . .

   Militant groups

   2.32 The most potent militant group in Pakistan remains the TTP – a loose network of Sunni militant groups which have splintered since the commencement of Operation Zarb-e-Azb. Although they are ideologically aligned, the TTP maintains an identity distinct from the Afghan Taliban, which is widely accepted to have an operational base in Quetta, the capital of Balochistan province.

   2.33 The TTP has carried out a number of high profile attacks against government security forces, political rivals, civilian infrastructure, and non-Sunni minorities throughout Pakistan. This includes direct attacks using small arms, suicide bombings, car bombs and improvised explosive devices (IEDs), as well as complex attacks using a combination of these tactics. For example, the TTP has claimed responsibility for attacks against the Pakistan military’s General Headquarters in Rawalpindi in 2010; a naval station in Karachi in 2011; Karachi Airport in June 2014; a military-run public school in Peshawar in December 2014; and an Air Force base camp in Peshawar in September 2015. According to the South Asian Terrorism Portal (SATP), there were 3,682 fatalities from terrorist-related violence in 2015. This included 940 civilians; 339 security forces personnel; and 2,403 insurgents[17].

   [17] DFAT 2016 DFAT Country Information Report: Pakistan 15 January

10. Attacks on members of peace committees reportedly continue.  Between September and December 2014 a spike in Taliban attacks against peace committee members was reported.[18] In September 2015 Malik Zahir Shah, the head of the peace committee in Gul Jabba village was killed by militants in broad daylight near a checkpoint manned by security and police personnel.  Another two committee members were gunned down the same day in Bara Bandai area of Swat’s Kabal sub-division while returning from the local bazaar.  The Taliban reportedly targeted anti-Taliban figures, especially those who supported the army in operation:

    Feroz Shah, central leader of a committee formed at Kabal sub-divisional level, argues that political leaders and members of peace committees of Swat, who resisted the atrocities of Taliban militants and supported the army operation instead, are key targets of TTP militants.  According to police and media reports, at least 30 peace committee members have been gunned down in Swat in the last three years.

    . . .

    The killing of peace committee members is an ongoing process of retaliation, explains Sartaj Khan, a social researcher who has worked extensively on insurgencies in the Pakhtun and Baloch regions. “Most of these men have been instrumental in helping authorities arrest militants, destroy their houses, and even assisting in finding them in other places, such as Karachi. By killing the peace committee members, Taliban militants are trying to warn the others to keep distance from security forces[19].

    [18] ‘Killing spree - Village defence committee member shot dead’ 2014, Express Tribune, The (Pakistan), 28 October < Rehman, Z 2014, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September <>

    Over this period, small groups of Taliban fighters were reportedly infiltrating back into Swat from sanctuaries in the Afghan provinces of Kunar and Nuristan, and militant cells continued to operate in the Kabal, Matta, Charbagh and Miadam areas of Swat.[20]

    [20] 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 <

11. I have accepted that the applicant was attacked by local members of the Taliban in his village of [Village 1] in 2008 and 2009.  I have also accepted that he was a member of the village’s peace committee through which he had a role in informing on local Taliban residents and persuading their families to surrender them to the army.  I have accepted he was directly threatened by a Talib called [Mr A] in July 2012 and was recognised and chased by a Taliban Commander in Karachi in November 2013.  I accept that the harm he has suffered in the past constitutes serious harm and has been directed at him because of his actual and imputed political opinion as a person who is opposed to the Taliban.  While the security situation in Swat has improved, I find that the Taliban and other extremist elements remain active in the region and continue to target those they know or suspect of working with the Pakistani Army during its 2009 operation and the aftermath.  I find there is a real chance that the extremist elements in Swat will continue to have an adverse interest in the applicant should he return to his village of [Village 1] or to Swat Valley.

12. It follows that I accept there to be a real chance that the applicant will be subjected to serious harm for reasons of his actual and imputed political opinion as a person who is opposed to the Taliban if he returns to his home village of [Village 1] or the Swat region more generally, now in the reasonably foreseeable future. 

    Availability of state protection

13. In this case, the harm that the applicant fears is from non-state agents.  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.

14. The applicant has stated that the Pakistani authorities cannot protect him from being killed by the Taliban.  Country information cited above indicates that the situation in Swat remains extremely dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban. 

15. In any case, given the long-standing nature and the seriousness of the violence in Swat Valley together with the weight of the country information cited above indicating that the authorities in Pakistan are struggling to contain that violence, the Tribunal accepts that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed 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 Swat, Khyber-Pakhtunkhwa, now or in the reasonably foreseeable future.

    Relocation

16. 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.

17. The applicant is a young man whose extended family remain living in [Village 1] where it is unsafe for him to return.  He has [number] children aged between [age range] and his wife has long-standing [medical] problems.  The applicant himself has been diagnosed with [specified conditions]. The medical reports before the Tribunal indicate he requires ongoing [treatment].  I accept that the applicant’s [health] conditions will impact on his ability to relocate within Pakistan, including his ability to find housing and employment.

18. I accept that while the applicant’s family lived comfortably in Swat Valley until the rise of the Taliban in the region, their income came from the family farming land and associated businesses.  I accept that the applicant has no individually owned assets he can sell in order to relocate and has not worked outside the family business except as [an occupation 1].  I accept that having [left his work] in Australia, he is unlikely to be re-employed in that industry.  For these reasons I consider that relocation is not practicable for the applicant.

19. Having regard to the above, I find 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 I am satisfied that he 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).

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

    DECISION

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

    Alison Murphy
    Member