1605382 (Refugee)

1605382 (Refugee) [2021] AATA 1600 (31 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605382
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rachel Westaway
DATE:31 March 2021
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 31 March 2021 at 12:10am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – membership of Pakistan Tehreek e Insaf (PTI) – Insaf Student Federation (ISF) – Awami National Party (ANP) – involvement in secular NGOs – anti-Taliban and anti-Pakistani Army views – significant social media presence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 29 January 2015. The delegate refused to grant the visa on the basis that he was concerned about the credibility of the claims and was not satisfied that the applicant faced a real chance of persecution or a real risk of significant harm.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of reference
The applicant claims he was born in Khyber Pakhtunkhwa (the KPK), Pakistan and is a citizen of Pakistan. He provided a copy of his passport, issued [in] 2011 as well as other identity documents. He has consistently claimed that he is of Pakistani nationality, he spoke Pashto fluently and he was familiar with the geography and culture of the KPK and Pakistan.
Taking into account the available evidence and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Pakistan and that Pakistan is the receiving country for the purpose of s.36(2)(aa) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a credible witness and his claims are credible and whether there is a real chance of persecution or a real risk of significant harm based on these claims. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
[The applicant] put forward the following claims in his statutory declaration associated with his protection visa application (Department file [numbers]).
·He is at risk of serious harm due to his political opinion
·He was an active member of Pakistan Tehreek e Insaf (PTI) and then joined ANP.
·He has opposed the Taliban and the Pakistani Army because he believed they killed people for politically gain
·He is profiled as anti-Taliban and Army
·He is a Pashtun and Muslim
·His parents and siblings are in Pakistan
·He completed a [Qualification 1] in Karachi and is a [Occupation 1] in Australia.
·Arrived [in] April 2012 on a student visa in order to arranged to escape threats from TTP and Army
·In September 2014 he returned to see a friend who was sick and dying
·He experienced ongoing threats and was arrested by the army and was lucky to escape alive
·His parents managed to get him released and he returned to Australia [in] December 2014 and it confirmed to him he can never return
·He stated that he became an Insaf Student federation (ISF) Member when he was at [college] and wanted to work with the poor and promote the ideas of the PTI leadership
·He claims to have been active with local members of the PTI e.g. [Mr A] – deceased and [Mr B]
·He was promoted to [specified position in] ISF [in specified] region
·The TTP started to become influential from 2006
·He had family members such as an uncle, cousins and friends join the TTP
·In 2007 local TTP Members of his mosque asked him to pay a donation and his uncle and cousins tried to encourage him to but he refused and 10-15 Taliban members then went to his house to beat him that night. His mother bribed them with 20,000 rupees and they left. This incident made him speak against the TTP
·When the TTP tried to stop girls going to school he encouraged people to ignore this and he supported his sisters in going and he would drop the too school and pick them up however spies in the village informed the TTP of his activities
·In mid December 2007 Fazal Ullah named him on illegal radio and threatened to kill him if he did not stop speaking against the TTP. His father was worried and sent him to Karachi in early 2008 to study. During this time he would visit his family on holidays and continue his anti-Taliban activities letting people know about the situation in SWATT.
·On a visit home in early 2009 he had an argument with his cousin [Mr C] who asked that he keep his guest room open that night so TTP friends could come and stay and eat. The applicant refused and the TTP friends entered forcefully. He was attacked and beaten. His father sent him back to Karachi.
·At that time the Pakistani army had initiated a large scale operation against the TTP in Swat and many displaced people went to Karachi including his friends from the PTI as well as TTP. In Karachi they raised funds for their cause.
·He claims to have seen his cousins who were members of the TTP and followed them to where they were staying. He informed the police and rangers and the house was raided. He identified them to the police and another person from this village and they were taken into custody.
·In 2009 late, the army claimed victory and people returned to Swat. He returned to the village as well however he found that the army also arrested and took away innocent people as well. He claims to have witnessed army brutality towards innocent people who had helped the TTP members because they had no choice.
·The army took their family land. The authorities would not help. He said they took court action against the government. He stated that the army would arrest people who did this.
·He claims that he and his friend [Mr D] organised rallies against the army to release innocent people but no one else helped.
·He has worked with many non-government organisations including [Organisation 1], [Organisation 2] and [Organisation 3] to help restore peace.
·He worked against the Army to try and find missing people and raise awareness of the issues they were facing.
·In October 2012 he received a call from an unknown person saying stop activities or he will be killed
·He reported the issue to the army who suggested he look after himself and report back if there is trouble.
·In February 2012 his Uncle was arrested by the Army in the middle of the night. The following morning he went to see him but the army didn’t let him. With the help of his cousin who works in the Special Forces he managed to get his Uncle released but the army ordered the applicant to stop his rallies or they will get the eldest nephew to teach him a lesson.
·He received a new visa and his father forced him to return to Australia.
·His best friend [Mr D] was arrested by the army. The applicant claims he was innocent and not involved with the Taliban. He said his friend was killed and his body was found. The applicant claims he tried to help [Mr D] by contacting influential people, but it did not make a difference. He said [Mr D] was in custody for over a year and was treated poorly. He said that he was upset by this and has written many letters to the Chief of Army, Imran Khan and called the media but nothing happened.
·In September 2014 he returned and contacted party leaders again to complain about the Army. He said that he was so upset, and nothing improved so he resigned from the PTI and the ANP. His close friend [Mr E] said they can do something against the army.
·He has given interviews to [Media Outlet 1], [Media Outlet 2] and other media groups and at the end of Oct 2014 he received a call from an unknown number to stop or he will be killed. The caller only identified himself as a member of the Taliban, but the applicant claims he told him he was really from the Army trying to intimidate him.
·In November 2014 the Army came and took him into custody. He claims to have been physically and psychologically tortured. He said that many people including his father and members of the special forces tried to get him released. On 18 November 2014 so much pressure was applied that he stated the Army released him.
·He again started speaking against the Army and organised a rally.
·In December 2014 he was visiting his grandfather and members of the Army came to arrest him again but his father said he was not there. His father advised him not to return. He immediately went to Islamabad and stayed with a friend and then went to Karachi and then flew to Australia.
·He stated that he cannot obtain protection from authorities.
The delegate did not accept that the applicant was threatened or was of interest to the Taliban or had an anti-Taliban profile. Further, the delegate did not accept that the applicant’s activities were anything other than low level pertaining to his anti-Army profile. The delegate acknowledge that the applicant had provided a significant amount of media articles and videos however they were not translated and as such given no weight. The delegate did acknowledge that the applicant appeared in some videos but again they were not translated and therefore given no weight. The delegate therefore accepted that the applicant had some type of media profile but in general his overall profile was insufficient to equate to a real chance of persecution or that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Pakistan he faces a real risk of significant harm.
The applicant appeared before the Tribunal on 15 August 2019 for review of his protection visa application.
The applicant stated he is [age] years of age. He first came to Australia in 2012. He had trouble in Pakistan and he had the opportunity to study. He came to study a certificate 3 and 4 in [Discipline 1]. He completed the certificate 3. He applied for a new visa which was granted in 2014. However, the applicant’s enrolment was cancelled in November 2014. The applicant returned to Pakistan for 2 months to see his cousin as he had passed away, but his family wanted to remain in Australia for fear of his safety being undermined. The Tribunal asked the applicant why he returned, and he said that Imran Khan was his hope and that he had promised there would be no further issues so he returned.
He said he is afraid that his activities such as protesting, his secular beliefs, anti-army statements and his education activities don’t fit in Pakistan.
The applicant was asked what it is that he is opposed to and he said it is extreme Islamic beliefs about heaven and hell. He said that this includes the Taliban, ISIS and the Army and his own people. He explained that they won’t accept his views.
He was asked why he would be targeted and he spoke passionately about his beliefs and said that he cannot keep quiet. He said if he sees something unjust, he tries to stop it.
He said that when he came to Australia and realised the injustices in his own country he became even more passionate about these issues. He said it started when he started at college.
He came to Australia in 2012 when he was [age] years old. He said that even when he was young at Army check points, he would stand up for himself. However, this way of thinking he claims causes him trouble. He said that his passion is demonstrated in his work for NGOs however working for and NGO was hard as the Army was against this. He claims to have received requests to stop working for NGOs because they are seen to stand against the Taliban.
He claims that the Army took the applicants family’s land. He said if he was there it would not have happened, but they took it and the family tried to fight to get it back but doid not peruse it through the courts.
When he went to Karachi, he saw raids and then when he returned to Swat, he explained an election was happening and there were political struggles starting. He said [Mr F] was invited to the launch of the election and later assassinated. He said there 30-35 people in attendance. The office was set up and there was a lot of attention on it. He said it was for the PTI and he explained that he had set up one office. [Mr F] was the candidate. There was one main office and 4-5 smaller offices. He said the campaign offices had been up and running for about 3 weeks. He had arranged to decorate the offices with posters and flags and he would often sit in the office. He described the office in some detail. He explained that merely supporting this was against the Army’s wishes.
The Tribunal promoted the applicant on his other NGO work and he explained that he was involved in the [Organisation 2] development. He explained he was a volunteer and it was one project he worked on; a [sewage line]. He said the project was lasted for 2-3 months however his involvement was providing labour for 4-5 days.
The Tribunal asked the applicant about [Organisation 3] and he said that there was no project but he had started work on documentation and opened a bank account. He set up projects such as schools for girls and an alteration business. The alteration business was to encourage financial opportunities for women. He explained that he cannot recall how much time he spent on this.
He was asked about [Organisation 1] and he said that he distributed sports items like footballs to encourage young people to play more sport and he also collected sports items, namely 2 footballs.
The applicant explained that the Mullah was very conservative. He said that you could not shake hands with him unless you had a beard and you were not permitted to wear shoes. He said everyone listened to him however the applicant stated that he disagreed with what the Mullah said. He said he preached nonsense. He tried to exclude girls from education. The applicant stated that he tried to stand up against it. He refused to give donations and he explained that he stood up against the things he believed were bad.
The Tribunal asked the applicant about being asked for donations. He explained that the request came initially came from an elder, but he refused. He said that when he returned from Karachi the Taliban were leaving the Swat area. He said initially his cousin and his friends came to his house asking for donations. He said he knew his cousin’s friends by face but not name. he said he declined, and they punched and slapped him. When asked by the Tribunal how this occurred when his cousin was there, he said his cousin did try and stop them. He said his mother gave them 20,000 rupee and they left. He explained that political landscape at the time.
He explained that his cousin is still alive and living in Afghanistan and a member of the Taliban. He said his cousin threatens him on [Social Media 1]. He has also received calls from an unknown number threatening him about his anti-Taliban views. He explained that the calls came when he went from Karachi to Swat and he received another when he returned from Australia. He said the calls were short and lasted for approximately 30 seconds or slightly more. He said that when he was in Pakistan he told his mum and his uncles friend took him to the check point and reported it. He stated that he never reported being punched when the alleged Taliban beating occurred.
The Tribunal asked the applicant why he bothered to report these incidents if he is anti-army and he said it was a sequence of events and this was round the time they took the land. He explained that the issues escalated and became worse.
He explained that one-time members of the army took him to the check point and told him to stop demanding things from the government and making complaints. He said he felt psychologically threatened. He said he has received threats of harm and was told no one will know if he is killed. He said he managed to be released because his cousin is in the SSG and his father’s cousin and Uncle helped get him released. He was detained for 4 days. It was all psychological threats however they did not physically harm him. He said he it was cold weather, and he was made to sit with his shirt off and asked to stand against the wall. He said his knees hurt but there was no beating with items.

He said that even now members of the army come to his house and asked for him. He said this happens because he stands up to people in Australia.
The applicant was asked about his time in Australia and the activities he has undertaken. He explained that he has been involved in protests. He said there was an attack on a university in Pakistan and they protested at federation square. He said that this was not in his submission. He said that there are many things that are not in his submission. The representative asked to adjourn the hearing as the Member asked why they were not included. The hearing was adjourned for 5 minutes.
The applicant returned to the hearing. The Tribunal asked the applicant to demonstrate the work he has been doing in Australia and anything before he came to Australia including media articles and social media.
The applicant stated that he has written to the United Nations Rohingya Group regarding Burmese state forces and he has shown his resistance to regressive governments more broadly.
He explained he has [number] followers. He has [number] [Social Media 1] followers and 7000 on his individual page. He said he set up his [Social Media 1] page [number] years ago. He explained that it is in Pashto and so it must be predominantly Pakistan followers. He receives messages on a weekly basis which are threats which are in the comments and videos and posts. The Tribunal reviewed the page as described by the applicant.
The applicant stated that he previously attended the [Suburb 1] Mosque however it has been almost 3 months since he was last there.
He explained that he circulates secular hard cover books with his thoughts and his views against extremism. He explained that they are translated into Pashto. At the time of the hearing the Tribunal was aware that the Nobel Peace prize winner and activist Malala Yousafzai, author of I am Malala was in Australia. The applicant stated that he was to meet her as he had arranged for her book to be translated into Pashto. He stated he has a picture of himself with Ziauddin Yousafzai (father of Malala Yousafzai).
He said that he promotes a Pashto singer and Pashto culture.
He said he writes short fictional stories. He also stated that he made a [video clip] against child abuse for use in schools and colleges. He said that he educates on anti-harassment.
When asked about how and when he is involved in these activities, he stated that in 2012 he was in [City 1, Australia] for 15-16 months and there was no Pashtun community there, just 2 people in a small room. When he moved to [City 2], he wrote articles for the website and newspaper.
He first arrived in the winter and he lived with a friend and he wrote letters, but he stated he did not have a profile at that time. He said that when he returned in 2014 it commenced.
He has published a book called [specified title] however he said that bookstores refuse to take it. He said that his father does not speak to him now and he stated that a file was presented to his father on what he has been doing.
They have not done anything for his family and he works in a [workplace] and he explained that not everyone is an activist.
The Tribunal viewed the book and website and asked about the authors name as it was not clear it was the applicant. He stated that the book and website doesn’t have his name on it.
He said that the video he made has had over 300,000 views. He also stated that the ex-army chief from his area lives in Sydney and expose people. He was asked who he works with and he named several people and their immigration status.
The applicant spoke passionately about recent events including a massacre at a school and these are all attributed to extremism.
The applicant was asked to provide material which shows that the applicant has been active in his advocacy in Australia sur place from 2012 -2016 prior to protection application. The material was asked to be provided by 22 August and to provide any further clarity on his identification in this material as his name does not appear on the pieces the Tribunal viewed.
SUBMISSIONS
Friday 9 August the applicant provided the first response and submission:
·Statutory declaration of [the applicant], declared at [Suburb 2] on 8 August 2019;
·Picture of [the applicant] at office of PTI, Pakistan;
·Picture of [the applicant] with Ziauddin Yousafzai (father of Malala Yousafzai);
·Picture of [the applicant] at protest in Sydney on 9 April 2019;
·Picture of [the applicant] at protest in Melbourne on 10 June 2018;
·Picture of [the applicant] at protest in [Suburb 3] [in] March 2019;
·[Social Media 1] screen capture of [the applicant];
·Record of conversation with Ziauddin Yousafzai regarding translation of ‘I am Malala’
·Record of compensation for confiscation of family land in Swat Valley;
·Psychological report of [Ms G] dated 14 August 2018;
NGO Records
·Project records for non-government organisation [Organisation 2];
·Invoices for various [Organisation 2] projects;
·Founding documents for non-government organisation [Organisation 4];
·Confirmation of Account Opening for [Organisation 4];
·Payment for works undertaken by [Organisation 2];
Media Reports
·Gurmehar Kaur ‘Soldier of Peace’ video still;
·Still of [the applicant] [social media] Response to Gurmehar Kaur;
·Record of interview of [the applicant] with [a radio station] dated [in] 2017;
·Local News Report for ‘Dust on Book’ Publishing House;
·Mashaal Radio Europe report on circulation of ‘Dust on Book’;
·[Media report] dated [in] 2018, reporting on [a protest in Sydney in] 2018 and featuring inset videos of speeches made by [the applicant];
·[Media report] dated [in] 2019, reporting on [a protest in Melbourne in] 2019 and featuring inset videos of speeches made by [the applicant]
·Statement of MP Julian Hill in support of PTM Australia;
Interviews, Videos, Recordings
·Response to Gurmehar Kaur: [URL redacted]
·[Media Outlet 1] News report on exchange between Gurmehar Kaur and [the applicant]: [URL redacted]
·[Media report] with audio of speech made by [the applicant]: [URL redacted]
·[Media report] with audio of speech from [the applicant]: [URL redacted]
·[Media report] with audio from [the applicant]: [URL redacted]
On 21 August 2019 the following material was supplied:
·Further statement of [the applicant] dated 21 August 2019, detailing his political activities between 2012 and 2015;
·Screen shots of various threatening messages received by [the applicant] via [Social Media 1] from [Mr H];
·Screen shots of various threatening messages received by [the applicant] via [Social Media 1] from [Mr I];
·Photos from protest against killings at [a named] Public School;
·Emails detailing complaint to [the applicant]’s employer [Employer 1] regarding his [Social Media 1] posts.
FINDINGS AND REASONS
The applicant speaks fluent Pashtu and Urdu and claims to be from Swat. He states that he is of Muslim faith. There is nothing before the Tribunal to contradict these claims and the applicant’s language ability and knowledge if the area supports his claims. The Tribunal accepts that the applicant is a Pashtun Muslim from Swat in Pakistan.
The Tribunal accepts the applicant’s claims that he was a member of ISF, PTI and ANP having demonstrated a detailed knowledge of people in these organisations and what they stood for.
The Tribunal is in receipt of documentary evidence supporting the applicant’s involvement in NGOs. The Tribunal accepts that the applicant undertook work with NGOs in Swat, Pakistan.
The applicant has claimed protection based on his anti-Taliban profile. He has demonstrated to the Tribunal his detailed knowledge and strong held anti-Taliban views. Whilst his involvement in anti-Taliban activities during his time in Pakistan is hard to demonstrate, he has been able to articulate clearly issues he opposes and has spoken with sufficient detailed knowledge and description of examples of his opposition. Further to this, with the passage of time, he has consistently demonstrated these beliefs and has continued to collect documentary evidence such as publicly available records of his activism under the guise of the Pashtun Tahaffuz Movement in Australia and as a secular blogger.
He has delivered speeches broadcast on [Media outlet 3] and [Media outlet 4]. He has been interviewed by [Media outlet 4] on several occasions and has over 7,000 followers on his personal [Social Media 1] page. He maintains a popular personal website, [URL redacted].
[The applicant]’s most recent project involves discussions with Ziauddin Yousafzai, the father of Malala Yousafzai, to translate into Pashto her memoir ‘I am Malala.’
The applicant’s account of the claimed attacks by the Taliban and threats by member of the Army were limited in detail and combined initially with the limited evidence supplied regarding his profile were difficult to accept. Notwithstanding this, the evidence taken at hearing and the documentary evidence provided post hearing is sufficient to support the applicant’s claims that at the very least his long held views, his ability to voice them publicly and the evidence of this is sufficient to convince the Tribunal that it is not unreasonable to accept that the applicant was of interest to the Taliban and Army.
The Tribunal finds that political opinion is the reason the applicant fears persecution from the Taliban and the Pakistani Army.
The applicant fears his life is in danger if he is to return to Pakistan. He has identified several examples of friends or political figures who have been harmed or killed because of their anti-Taliban Anti-Army views. Some of the examples the applicant has supplied are supported by DFAT Country Report Pakistan. The Tribunal is satisfied the feared persecution involves serious harm to the applicant.
[The applicant]’s claims for protection are made on the basis of his past experience in Pakistan, including his involvement in various secular NGOs, as well as his political affiliations with the ANP and PTI, and more broadly his pro-democratic, anti-Islamist political activism. The Tribunal accepts that there is more than a remote chance that the applicant is likely to face reprisal on return to Pakistan, both by Islamist groups as well as Pakistani security forces.
The latest DFAT report on Pakistan notes that:
2.66 The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
2.67 Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
2.68 Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek- e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017).
The KPK had the highest number of terrorist attacks in 2018. “While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018”.
The TTP (the Pakistani Taliban) and Islamic militancy
DFAT reports that:
2.81 Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations (see Judiciary, and Military and Intelligence Services). Nonetheless, militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces (see Military and Intelligence Services).
2.82 Although counter-terrorism operations have succeeded in suppressing terrorism-related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo).
2.84 Despite official disruption efforts, the TTP and its affiliated networks remained the greatest security threat to Pakistan, with the highest overall number of attacks in 2018. TTP is the largest banned group in Pakistan and was responsible for 79 terrorist attacks across the country, resulting in 185 fatalities and 3336 injuries in 2018 (compared to 70, causing 360 fatalities and 360 injuries in 2017). The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into several separate groups reflecting Operation Zarb-e-Azb, leadership tensions and the rise of ISIL. Nevertheless, in early 2017, a number of these splinter groups re-joined the TTP or pledged support for its leader. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned. TTP's level of cohesion waxes and wanes depending on the leadership. Even when TTP undergoes cyclical splintering, the disparate networks remain dangerous and willing to break any short-term agreements they may reach with the Pakistani state.
The TTP appears to be is reconsolidating after a few years of disunity. The TTP was a primary target of the Pakistani military’s operations in the former FATA. In June 2018, the leader of the TTP, Mullah Fazlullah, was killed by a US drone strike in Afghanistan, and Mufti Noor Wali Mehsud was appointed as the group’s new leader. Unlike Fazlullah, Mehsud has a strong tribal backing and he has used this advantage to reunify the TTP, which had become increasingly fragmented under Fazlullah’s leadership. The group’s operational capabilities have remained intact and it has extended its reach in the northern districts of Balochistan.
The TTP remains a major actor of instability in Pakistan. The TTP leadership recently announced that it has been working to bring other militant groups into their fold to consolidate the campaign against what it condemned as an ‘un-Islamic system’ in Pakistan.
Since March 2020, the TTP has ‘unleashed a wave of attacks on the Pakistani security forces’ in what commentators have seen as a response to the risk of losing havens on the Afghan side of the border. During 2019, the TTP was reportedly involved in 82 terrorist attacks, of which 69 were in Khyber Pakhtunkhwa and 13 in Balochistan; these attacks claimed 150 lives.
The TTP mostly targets symbols of the state and largely avoids mass-casualty attacks. Although it had engaged in mass casualty attacks in the past, in September 2018 the TTP issued a code of conduct which emphasised that it would target symbols of the state (especially security forces) and avoid mass casualty attacks or purely civilian targets such as schools, mosques or market places. That said, in July 2019, following a TTP attack at a police checkpoint in Dera Ismail Khan in Khyber Pakhtunkhwa, a suicide bomber targeted the casualty entrance of a local hospital, causing seven more fatalities, including three civilians. News reports indicate that the TTP claimed responsibility, saying it was in retaliation to the killing of two Taliban leaders in DI Khan the previous month. The TTP killed at least three civilians in targeted attacks against polio vaccination workers in April and December of 2019. Militant attacks often target security personnel, although ordinary citizens caught up in incidents suffer the greater number of fatalities.
A recent Canadian research response notes:
TTP's strategic document indicates that "legitimate targets for attacks" include state institutions such as the "military, police, judiciary, and civilian government," and "NGOs and institutions that promote 'obscenity'," as well as communities of "non-believers or kafir" who "are observed to be working in collaboration with the Pakistani state, or are guilty of insulting Islam"; however, the guidelines instruct the avoidance of "indiscriminate attacks," including against educational institutions and "religious seminaries, public gatherings, and markets … to prevent mass casualties and loss of civilian life" (Jadoon and Mahmood Dec. 2018, 23).
The response noted that DFAT reported that the TTP has engaged in sectarian violence, "[p]olitically motivated violence," attacks on polio workers, attacks on journalists, attacks on women and girls due to "ideological opposition to female education," and use of child suicide bombers (Australia 20 Feb. 2019, para. 3.99, 3.159, 3.183, 3.188, 3.214, and 3.244).
Despite frequent violent incidents, there has been a significant long-term trend of decreasing violence, and a substantial reduction in overall incidents in 2019. DFAT notes a significant reduction in sectarian violence since the government’s military campaigns in 2014.
Members of peace lashkars or peace committees remain targets of anti-state groups, however they have benefited from a somewhat improved security situation across Pakistan in recent years. In February 2020, a peace committee member was killed in the Swat district of Khyber Pakhtunkhwa province in a targeted shooting for which no one claimed responsibility. Reportedly, the victim was also a local leader of the opposition Pakistan Muslim League-Nawaz (PML-N) and the bureau head of an Urdu-language daily newspaper, and several members of his extended family had been killed in the past due to their involvement in peace committees. Two peace committee volunteers were also killed in South Waziristan district of Khyber Pakhtunkhwa in March 2020. During 2019, 11 attacks targeted pro-government tribesmen and members of peace lashkars, killing 13 and injuring 47. Amongst those killed were four members of a peace lashkar targeted by the TTP in a bomb attack in Khyber Pakhtunkhwa in August 2019. In 2018, six attacks against peace lashkars resulted in seven deaths, down from 12 attacks causing 23 deaths in 2017, and continuing a trend of decreasing attacks since 2015.
The Tribunal accepts that if the applicant returned to Swat he has a profile which might cause him to be targeted by the Taliban for reasons of his actual and imputed anti-Taliban political opinion. The Taliban’s targets appear to mainly be the military, government officials, the judiciary and non-believers.
Nevertheless, the possibility is not less than remote that he may be targeted. The Taliban have reconsolidated and continue to attack targets in KPK. While there is a code of conduct which indicates that civilians should not be targeted, it is difficult to be confident that an extremist group of the nature of the Taliban would necessarily follow such guidelines.
The perception that the applicant has an anti-Taliban opinion is supported by his significant social media presence. Without this, the Tribunal might find that the applicant could relocate to an area of Pakistan where the Taliban did not have a significant presence such as Islamabad, Lahore or Karachi, where there are a large number of different ethnic groups. However, the applicant’s situation is compounded by his continued publication in mainstream and social media environments which means that it is not possible to relocate as there remains a chance he may be identified. Further still, it is likely that he would continue his advocacy work.
CONCLUSION

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rachel Westaway
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 1600

31 March 2021

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