1607928 (Refugee)

[2018] AATA 4851

1607928 (Refugee) [2018] AATA 4851 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607928

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Paul Windsor

DATE:5 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2018 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Awami National Party – race – Pashtun – religion – Sunni Usmani Muslim – perceived opposition to the Pakistani Taliban – preaching the Usmani faith – threatening letters and calls – attacks on mosques – physical assault – fear of killing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 on 25 May 2016 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 on 6 May 2016. The delegate refused to grant the visa on the basis that he was not satisfied the applicant’s level of political involvement with the Awami National Party (ANP), his Pashtun ethnicity and his being from the Swat district of Khyber Pakhtunkhwa province would cause him to face a real chance of serious harm if he were to return to Pakistan.  The delegate also was not satisfied the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of him being removed to Pakistan.

3. The applicant sought review of this decision by the Tribunal on 1 June 2016.  The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 1-5 of the Tribunal file.

4. The applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments.  At the applicant’s request, the Tribunal also received oral evidence from [Mr A], a friend of the applicant.  The hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.  The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. 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 Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant claims to be a citizen of Pakistan who was born in [Town 1] in the Swat district of Khyber Pakhtunkhwa province, Pakistan on [date].  He states he belongs to the Pashtoon (Pashtun) ethnic group, is a Sunni Muslim (Usmani), and that he speaks, reads and writes Pasto and Urdu and reads and writes English.  He indicates that was married in [Town 1] [in] October 2007 and has [number and ages of children].  The applicant indicates he departed Pakistan legally [in] February 2016 (as a member of a ship’s crew) and arrived in Australia [in] April 2016, entering as a ship deserter.[2]

    [2] See folios 8 and 17-41 of the Departmental file.

    Summary of claims from the Protection visa application

13. The applicant’s claims from his Protection visa application are summarised as follows:[3]

    ·He left Pakistan because he is targeted by the Taliban due to his religious differences from other Sunni Muslims (he is a supporter of Dr Masood Uddin Usmani), and his support for the secular ANP political party.  Other Sunni groups and extremists are also against him.  He fears he will be killed by the Taliban and their allies including other Sunni extremists.

    ·He always preached Dr Usmani’s teachings and because of this he became an enemy of the Taliban.  The Taliban declared them to be infidels and ordered their killing.  In about 2007 and 2008 he was sent two warning letters to stop his anti-Taliban views and to withdraw his support for the Usmani group and the ANP.  From time to time they have sent him messages and made threatening telephone calls.  In about 2015 he was beaten by unknown men when they came to his house.  They tried to drag him out of his house but he resisted and saved his life.  He escaped unharmed.

    ·He cannot seek help from the police and Army as the authorities are helpless and cannot provide him protection against the Taliban.  They also see the Usmani group as infidels.

    ·He moved to [Town 2], Karachi, Peshawar and Punjab but the local people there were also against their ideology and he cannot save himself against the Taliban and Sunni extremists. 

    ·He cannot safely relocate as Taliban are in all parts of the country and it is very easy for them to target him anywhere.  He will not be able to practice his religion due to his opinions against the Taliban and Sunni extremists.

    [3] See folios 20-22 of the Departmental file.

14. The applicant attended an interview with the delegate on 19 May 2016 and was refused a Protection visa on 25 May 2016.

15. On 27 August 2018 the applicant responded to an invitation to attend a hearing on 4 September 2018.  Included with this response was a statutory declaration by the applicant of 25 August 2018; copies of photographs of their ruined mosque, which he claims was destroyed by followers of Taliban and ‘Mullahs’ during the Taliban uprising in Swat in 2008; a psychologist’s report of [August] 2018; and a statutory declaration made on 28 August 2018 by the applicant’s friend, [Mr A].[4]

    [4] See folios 30-42 of the Tribunal file.

16. Relevant additional matters from the applicant’s statutory declaration are summarised as follows:

    ·He has been a member of the Usmani religious group since 1996.  He has been preaching the Usmani faith for many years and many Mullahs and local people were against their ideology.  They follow Quran teachings in their day to day life rather than the ‘Hadith’.  Mullahs are against them.  Mullahs and their followers called them Munkar-e-Hadith (non-believers of the Hadith).  He never attended any mosque to pray after a Mullah because of the different beliefs.  Taliban and Mullahs during the Taliban uprising in Swat in about 2008 ordered their followers to burn the houses and mosque of the Usmani group members and to kill them.  He has provided photos of their destroyed mosque.  He does not attend a mosque to pray because he became targeted by the Taliban and their followers.

    ·Normal Muslims consider them Qadiani (Ahmadi) and that their teachings are like those of the Qadiani.

    ·The ANP and Usmani group both have secular views.

    ·He actively participated in ANP activities during elections in 2002, 2008, 2010 and 2013.  He voted for ANP and asked others to do the same.  The Taliban targeted many ANP leaders and workers since their uprising in Khyber Pakhtunkhwa.  ANP leader Haroon Bilour was killed recently by the Taliban which is targeting ANP leaders and its members throughout the country.

    ·The use by the delegate of the phrase ‘last contact with the Taliban’ led to a misunderstanding.  He was attacked in 2015. 

    ·In addition, his mental health has been affected by stress and fear and sometimes it is difficult for him to be ‘in full concentration’.  He has been suffering from Post-Traumatic Stress Disorder ‘materialising in depression, sleep disturbance, night terrors, anxiety and trauma’.  His psychologist has provided a psychological report.

    ·He worked on ships for 7-9 months and then would return to Pakistan and provided his support to the ANP and the Usmani group whenever he was home.  He is not a highly educated person and did not seek higher office as such a person is required to be in the country on a permanent basis and should be highly qualified, communicative and sharp in order to be able to represent the party.  He was a sincere worker for the party and supporter of Bacha Khan’s ideology.  He worked in his own manner to clarify and convince people about the philosophy of Dr Masood Uddin Usmani in small local gatherings.

    ·There are books available in Urdu about Dr Usmani and his teachings.  The group has not gained apparent popularity in the regions but their methods of preaching are silent and calm because the religious intolerance in Pakistan has compelled them to work covertly.

    ·He did not try to depart his ship earlier because he did not want to leave his wife and children until compelled to do so.  He thought the situation in his country would get better until he was attacked in 2015.  After this attack he realised that the Taliban still exist and decided to move to a safe place.  For about one year he did not succeed due to the strict watch on the crew of his ship.

    ·While he agrees with the delegate that Taliban activities have been confined compared to earlier in the current decade they have not been completely controlled, as is evident from the most recent killings of ANP leaders and workers.  The risk is greater in his village where there are several Taliban who know him by face and name.  ANP statistics show that fatalities are higher in Swat compared with elsewhere in Pakistan.

    ·He agrees that merely being a Pashtun would not cause his life to be in danger rather he is on a hit list of Taliban due to his active involvement with the ANP and his differing views regarding some religious concepts.

    ·The authorities also consider him to be against Islam and have refused to help him.

    ·He cannot relocate as Taliban and Mullahs are everywhere in Pakistan.  Taliban carry out target attacks but Mullahs are everywhere and preach that Usmani’s are infidels and ‘Qadiani’, making them a target for extremists.  In his home town he has been recognised as a deviant to the religion and can be attacked any time.

17. The statutory declaration by [Mr A] indicates that he knew the applicant for many years and knows the applicant belongs to the ANP and was a member of the Usmani faith.  He indicates that the applicant would come to the Usmani mosque in his village ([Town 3]) located about 1 km from the applicant’s village ([Town 1]).  He comments that around the country people who have dissimilar views about their religion are discriminated against and in some cases killed.  He states that he has seen people opposing the Usmani faith including opposing the applicant, and witnessed that the Taliban destroyed the Usmani mosque in their village in about 2008-09.  He comments that he believes the applicant might be harmed by the local people with different religious views, the traditional religious scholars and Taliban.

18. The psychologist’s report indicates the applicant has had ten counselling sessions with the psychologist since he was referred in late 2017 for treatment for depression and anxiety.  The psychologist comments that in his experience, the applicant meets diagnostic criteria for Post Traumatic Stress Disorder (PTSD).  He opines that the applicant’s mental health is extremely poor and deteriorating and that ‘it is crucial to his recovery that he be granted permanent residency, as a basis upon which to build his recovery efforts’.  The psychologist does not indicate whether the applicant has been prescribed any medication or the nature of any counselling therapy/treatment that he is receiving.

    Findings and reasons

19. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of Pakistan, there is a real risk that he will suffer significant harm.

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Applicant’s identity

21. On the basis of the copy of the applicant’s Pakistan passport provided to the Department,[5] and noting the delegate’s findings in relation to this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be. The Tribunal accepts that Pakistan is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Vulnerability

    [5] See folio 61 of the Departmental file.

22. Noting the information indicating that the applicant has been referred to a clinical psychologist for treatment of depression and anxiety the Tribunal asked the applicant at the hearing if he is currently taking any medication.  He indicated that while he takes medication for reflux and takes [other specified medciations] once a day he was able to respond to the Tribunal’s questions.  He indicated that he sees his psychologist regularly and that his psychologist shows him ways to overcome his worries and improve his ways of thinking.  The Tribunal advised the applicant that if he needed a break at any time during the hearing to let the Tribunal know.  The applicant engaged with the Tribunal readily and actively and the Tribunal is satisfied that he was able to put his case fully at the hearing.

Credibility

1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

2. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

3. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

   Assessment of claims

6. The applicant claims to fear serious harm from the Taliban and their supporters, Mullahs and Sunni Muslim extremists because he is a supporter of the teachings of Dr Massud Uddin Usmani and because of his support for the ANP.

   Background on the Taliban in the Swat district of Khyber Pakhtunkhwa province

7. Country information indicates that the Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989.[6]  Maulana Fazlullah assumed control of the TNSM in 2001[7] and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands.[8]  When Tehreek-e Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007, Fazlullah was named emir (leader) of the Swat Taliban.  Although the TTP and TNSM were not operationally linked, they were allied and TNSM militants in Swat were also referred to as the Swat Taliban.  Maulana Fazlullah subsequently became leader of the TTP in 2013 until he was killed in a US drone strike in eastern Afghanistan in June 2018.[9]

   [6] 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.289-313. See especially pages 291-294

   [7] Ibid.

   [8] Ibid; 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

   [9] ‘Pakistan Taliban leader Mullah Fazlullah killed in U.S. airstrike in Afghanistan’, The Washington Post, 15 June 2018, < type="1">

8. TNSM attacked targets in Swat which it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, and artists[10] and used beheadings to advertise its strength.[11]  The Khyber Pakhtunkhwa provincial Government entered into a number of ceasefire agreements with the TSNM from 1994,[12] however, these did not lead to a lasting peace and the TNSM gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence[13] and displacement of the local population.[14]  Fazlullah effectively set up a parallel government in Swat in 2007, controlling the area until 2009 when he and his group were defeated by an army offensive.[15]  The army offensive against the Taliban in Swat commenced in May 2009.  During that time the military is reported to have sent 15,000 troops into Swat to confront about 4000 Taliban militants.  Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people in the month after the offensive commenced.[16]

   [10] 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; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28

   [11] Mustafa D and Brown K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; ‘Taliban behead two government officials in Swat’ 2009, Dawn, 3 May

   [12] 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

   [13] Ibid.

   [14] Ibid, pp.289-313, especially page 302 for reference to a, so-called, ‘Taliban Police Station’

   [15] 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 

   [16] Macey, J. 2009, ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June ;

9. Country information indicates that Fazlullah was born and later established a madrassa in Imam Dehri, a small village in Swat [district].[17]

   [17] ‘Mullah Radio, terrorist demagogue behind the savagery of Peshawar’, The Telegraph, 20 December 2014, >

   Independent information before the Tribunal indicates that, following the defeat of Taliban militants in Swat by the Pakistan armed forces in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military in Swat continued.[18] 

   [18] 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 Taliban 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’.[19] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[20] who stated that the Taliban in Swat were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region.  Cloughley characterised the Taliban in Swat as being ‘down but…not out’.[21]  The Taliban’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.[22]

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

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

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

10. The Pakistan Institute for Conflict and Security Studies (PIPS) Annual Security Assessment Report for 2015 comments that the security situation in Khyber Pakhtunkhwa improved substantially during 2015 with an almost 70 per cent reduction in militant attacks compared with 2014, returning to the status of 2007/08 when this wave of militancy picked up momentum.  The report comments that the substantial improvement is directly linked to military operations in FATA as well as measures adopted under the National Action Plan (to counter terrorism) (NAP).  The report notes, however, that incidents of target killings continued to occur in Khyber Pakhtunkhwa province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015.[23]

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

11. More recently, a July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence had been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the Village Peace Committees (VPCs).  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’.[24]

    [24] ‘Restoring Swat’s lights’, The Friday Times, 29 July 2016,

12. A Center for Research and Security Studies (CRSS) report for the period April – June 2016 stated that police officials appear to be the main target of violence in KP, followed by political activists belonging to the Awami National Party (ANP) and pro-government VPC 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

13. In its 2017 Country Information Report DFAT states that Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, including the TTP.  The report comments that while militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas.  Khyber Pakhtunkhwa is included among areas that experience relatively higher rates of militant and sectarian violence.[26]

    [26] DFAT Country Information Report, Pakistan, 1 September 2017, sections 2.30—2.42.

14. The DFAT report indicates that:

    ·In June 2014, the PAF launched Operation Zarb-e-Azb, a major offensive against terrorist groups across the country. Operation Zarb-e-Azb initially targeted terrorist groups in North Waziristan in the FATA, including the TTP, and gradually spread to other parts of FATA and Khyber Pakhtunkhwa province.  The operation reportedly resulted in the deaths of 3,500 suspected terrorists and 490 military personnel during its first two years.

    ·In December 2014, an attack on a school in Peshawar resulted in the deaths of 140 people, including 132 children. The attack led to the government introducing a National Action Plan (NAP), which, along with Operation Zarb-e-Azb, forms a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. Among other measures, the NAP: ended Pakistan’s unofficial moratorium on the death penalty; established military courts to try suspected militants; clamped down on sources of finance for militant organisations; took measures to restrict hate speech; and committed to implementing administrative and development policy reforms, particularly in the FATA.

    ·Operation Zarb-e-Azb and the NAP are credited with a significant reduction in the number of violent attacks in Pakistan.  According to the South Asian Terrorism Portal (SATP), more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013.  Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians. More than 20,000 civilians have died in terrorism-related violence since 2007. These statistics largely derive from news reports, and may understate the number of casualties.

    ·The government and military operations have disrupted the activities of militant groups and thousands of militants have been killed, including the high-profile leader of Lashkar-e Jhangvi (LeJ), Malik Ishaq, in 2015. Military courts have tried and convicted thousands of people with links to terrorist organisations. However, militant groups remain active across Pakistan, despite their more limited access to former safe-havens in Khyber Pakhtunkhwa and North Waziristan. These groups continue to attack government and sectarian targets. Groups such as the TTP have splintered into several offshoot organisations; while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats.

    Background – the ANP

15. The Tribunal discussed with the applicant the following information regarding the ANP from DFAT’s Country Information Report of September 2017:[27]

    [27] DFAT, Country Information Report, Pakistan, sections 3.106-3.108.

    The ANP is a Pashtun nationalist and secular political party, with headquarters in Peshawar, Khyber Pakhtunkhwa province. The party’s major support bases are in Khyber Pakhtunkhwa and Balochistan. The ANP formed in 1986 as a successor to the National Awami Party, and served in several national and provincial coalition governments in the 1990s. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government with the Pakistan People’s Party.

    Like several other parties in Pakistan, the ANP can act as an aggressor in politically motivated violence, but is also the victim of violence from militant groups. Tehreek-e-Taliban Pakistan (TTP) militants have attacked ANP members because of ANP’s secular, left-leaning ideology and its support for counter-insurgency operations in FATA and Khyber Pakhtunkhwa. On 11 April 2016 militants killed an ANP leader in Swat, Khyber Pakhtunkhwa. Reports of such incidents have been increasingly rare in recent years. This is due largely to the improving security situation and the ANP’s declining political influence in Khyber Pakhtunkhwa, but restrictions on media reporting capabilities in FATA and Khyber Pakhtunkhwa may mean some incidents in these areas—particularly those involving low-level officials—are not reported.

    DFAT assesses that ANP members face a low risk of violence from political or militant groups based on their political affiliations.  

1. The Tribunal also discussed with the applicant recent reports regarding militant violence during campaigning for the Pakistan elections held on 25 July 2018, including a report in The Diplomat that on 10 July 2018 Haroon Bilour, ‘a prominent leader of the anti-Taliban ANP’, was killed along with 20 other people, mostly political activists, in a bomb blast in Peshawar, the capital of Khyber Pakhtunkhwa, for which the TTP claimed responsibility.  The Tribunal noted, however, that consistent with the DFAT advice, the article also indicated that the level of violence was well down on the previous election in 2013 (when there were 37 attacks against the ANP) and commented that unlike in the 2013 campaign, when the TTP enjoyed strongholds in the tribal regions bordering Afghanistan, campaigning for this year’s elections had remained peaceful.  The article also commented that this was mainly because, as per claims by the Pakistani security agencies, the Taliban have been defeated and pushed across the border into Afghanistan.  The article commented that the TTP’s claiming credit for the July 10 suicide attack, targeting a key leader deep in the city of Peshawar, is a warning sign that either the group has not been fully defeated, or the claims about its defeat were false.[28]

   [28] ‘Pakistan’s anti-Taliban Party on the Hit List Again’, The Diplomat, 12 July 2018, <>

   At the hearing the applicant indicated that he became a seaman in [2008]. He said that before that time he worked on his family’s farmlands where they grew a range of [crops]. The applicant indicated that his father has a large house in [Town 1] village where around 25 people live as the families of his married brothers also live there with his parents. The applicant indicated that this house had been his base when he lived in Pakistan. He said the Karachi addresses provided in his application were addresses where he stayed while waiting for work with shipping companies. He indicated that the address in [Town 2] was where his family stayed when civilians were evacuated from Swat during the army offensive against the Taliban in mid-2009. He said he spent a few days in Peshawar in 2011 and a short time in North Punjab province in 2014 when he was experiencing problems due to his religious beliefs.

2. The applicant indicated that as a seaman he would undertake voyages for between seven and a half months to nine months and then have nine-ten months back home, although it was not fixed and sometimes he was only home for 5 months and at other times was home for up to eleven months.  The applicant said he came to Australia many [times].  He said they might go back and forth to and from Australia five-six times in one trip.  He indicated that he was not permitted to come ashore in Australia as he was responsible for checking [the stock] and when they docked he had to ensure everything was checked and [cleared].

3. The applicant indicated that he joined the Pakhtun Students Federation (PSF), the ANP’s student wing, when he was a student in college ([specified years]).  He said that when he graduated he joined the ANP.  He said he joined because Pashtuns were disadvantage in relation to health care and education and he felt they needed to obtain their rights and better facilities.  When asked what attracted him to the ANP charter or philosophy he commented that the main reason was his Pashtun ethnicity because the ANP represents Pashtuns and he wanted Pashtuns to get their rights.  The applicant said he helped set up venues for meetings, and when protests were taking place about peace in Pashtun areas or for Pashtun rights they would go around preaching.

4. The Tribunal asked the applicant how he participated in election related activities when he spent so much time away on ships.  He said he was not always away and was lucky enough to be in Swat at appropriate times.  He said he worked trying to get votes for the party and helping to set up for meetings.  He indicated that one of his brothers, who is now living in [a specified country], was also involved with the ANP.

   Claim to be a follower of the teachings of Dr Masood Uddin Usmani

5. The Tribunal asked the applicant about Dr Usmani.  He said he is the leader of the group they follow.  He indicated that Dr Usmani had been based in Karachi but passed away 20-30 years ago.  He said Mohammad Hadi, based in Peshawar, is the current leader of the movement.  When asked how he came to follow Dr Usmani’s teachings the applicant said his [brothers] had been part of the group and he joined after they spoke to him about it.  When asked about the differences between Dr Usmani’s teachings and mainstream Sunni Islam, the applicant commented that the biggest thing is that mainstream Sunni Muslims worship things which his group believes are not adhering to the Quran, and have practices, such as visiting graves, which are not part of Islamic tradition according to the Quran.

6. The applicant indicated that he joined the group in his village in 1996 and that they meet up in nearby [Town 3].  He said there were 60-80 followers from their two small villages.  When asked he indicated that Mohammad Hadi occasionally visits [Town 3] from Peshawar.

7. The applicant indicated that when members of the group spoke out against Sunni teachings from the Hadith which they consider are wrong, mainstream Sunni leaders consider them to be ‘Munkar’ or outside the fold of Islam, like the Ahmadis.  He said he left Pakistan because whenever they speak out it becomes hard for them as power is in the hands of the Sunni Imams, and the Imams, who have huge influence, tell their followers to burn the homes of the Usmanis.  He commented on the case of a student (Mashal Khan) from Abdul Wali Khan University in Mardan in Khyber Pakhtunkhwa province who was killed by fellow students in 2017, saying the man who was killed had the same ideology as us.

8. The Tribunal asked the applicant how he expressed his views and beliefs as an Usmani.  The applicant said that on Fridays they would gather and hold sermons and they would go around preaching about their ideas.  He commented that when they did that it caused problems.  He said the Taliban destroyed their mosque and indicated that the mosque is still destroyed.  He said that the foundation for the mosque had been laid in [year] and the mosque was completed in [year].  He said a friend from [Town 3] donated the land and the money to build the mosque was raised from charity and fund-raising among their group.  The Tribunal queried the applicant how they were able to raise the necessary money among their group of 60-80 followers to build a mosque if they were opposed by others in the community.  He replied that there are other Usmani mosques in the main cities in Pakistan and these mosques helped them in their fund raising over many years.  The applicant indicated that the main Usmani mosque is in Karachi but said there are others in Peshawar, elsewhere in Swat and in Punjab province.

1. The Tribunal asked the applicant when the mosque in [Town 3] was destroyed.  He replied that it was destroyed when the Taliban came to power in Swat in about 2008.  He said when they returned after being evacuated they found the mosque had been destroyed.  The Tribunal queried the applicant why the Taliban had not destroyed the mosque when they controlled Swat.  He indicated that was the case.  The Tribunal sought to clarify that it understood he was he was saying that the mosque was destroyed during the period from May-July 2009 when the army evacuated the civilian population and undertook an operation to clear the Taliban from the area (and during which time he had indicated he was living in [Town 2]).  The applicant replied that he was not there at the time as he was at sea on a ship.  He added that many of the other followers were securing the mosque but he was not there to witness what had happened.  He said that their leaders told them to make sure they did not have a head-on confrontation but to engage in dialogue.  The Tribunal queried the applicant that the sense it has from the country information is that if the Taliban did not like something they dealt with it brutally and ruthlessly.  Noting the comment in the applicant’s statutory declaration that Taliban and Mullahs ‘during the Taliban uprising in Swat in about 2008 ordered his followers to burn our houses, mosque and to kill us’, the Tribunal queried the applicant why their houses and mosque were not destroyed and they were not killed in 2008 when the Taliban were in control in the area.  The applicant replied that the Taliban were in agreement with many things they said and commented that at that point the Taliban were ‘not that much in power’.  He said they were able to have dialogue with the Taliban and found that most of their base ideas were the same.  He said it was later that the Taliban said they were not official Muslims and should be killed and it was at this time that their mosque was destroyed.  He added that in relation to his house he was the only one living there who was from ‘that party’.

2. The Tribunal put to the applicant that it had undertaken internet searches for ‘Usmani’ Muslims in Pakistan but had not been able to locate information about such a group.  The Tribunal indicated that it had located information about ‘Quranites’ being supporters of a form of Islam that accepts the Quran but rejects the religious authority, reliability and/or authenticity of the Hadith and asked the applicant whether Usmanis are a form of Quranite.[29]  The applicant said it sounds like a similar ideology but he had never heard of the Quranites.  He commented that the Tribunal would not have been able to find information on the Usmanis because there are no websites because all madrassas are regulated by the government in accordance with the government’s vested interests and as they are against these ideas they are not registered.  He added that their activities are also solely for religious benefit rather than political gain.  The applicant indicated that he agrees with the statements by the Quranites but while some Usmani literature has been published those views do not get media coverage.

   [29] Ibrahim, Raymond, ‘Huffington Post: All Islamic Violence Comes from Hadith, NOT Quran’, PJ Media, 12 August 2016, >

   The Tribunal asked the applicant what he meant by the comment in his statutory declaration that the ANP and the Usmani group both have secular views.  He replied that could be a mistake but added that the ANP believes that members should respect the views of others because all people are entitled to their opinion and that conflict should be resolved through dialogue and people should not seek to enforce their ideas or religion on others.

   Claims to have been targeted by the Taliban due to support for the ANP and the Usmani group

3. At the hearing the applicant said the Taliban first sent him a warning letter in 2007.  He said the letter stated that he should cease his activities for the ANP and that he should stop teaching and preaching Usmani ideas because these ideas are against the Taliban’s ideology.  The Tribunal asked the applicant if he stopped his activities in response to this warning letter.  The applicant replied that he did not stop.  The Tribunal again asked the applicant if that was the case why hadn’t he suffered the consequences he outlined in his statutory declaration – his house had not been burned down and he had not been killed, and his family and family home are still there even though he claims he was declared an infidel in 2008.  The applicant replied that he has been attacked, pointing to the claimed failed attack in 2015.  He added that his family home, and the people in the home are not supporters of the ANP so were not personally targeted and the house was not known to be his home.

4. The Tribunal asked the applicant how he had been able to successfully avoid the Taliban for such a long time.  He replied that he was attacked, had received many threat letters, and they may have tried many times to find and attack him.  He said he has always been going from place to place and when he was at home, if he felt things were not right he would ‘take off’.

5. The Tribunal asked the applicant about the claimed failed attack on him in 2015.  He said it was in the last months of 2015, he thinks December.  He said there was a loud knock at the door and he asked ‘who is it’. There was a further loud knock and other family came to the door.  He said he opened the latch and put his right leg out and was struck on the foot with a crowbar and screamed.  He said he still has scarring on his right foot from where he was hit with the crowbar.  He said the persons outside were about 12 feet away.  He indicated that he and the others in the house, who included his brother and a nephew all yelled and screamed and all the people in the surrounding houses heard the screaming.

6. Noting that the applicant had said in his statutory declaration that he opened ‘the gate’ the Tribunal queried the applicant about the difference between the gate and the house door.  He replied that the gate is the same as the front door.  The Tribunal asked the applicant why he put his leg outside the door if he was opening it with a latch still attached.  He replied that because it was so dark he could not see who was there so he put his head out to take a look and that is when he was struck.  The Tribunal asked the applicant what happened when he closed the door.  He said he was bleeding heavily and was not able to go outside for a couple of days. He said he moved from place to place to hide and decided he could never return home so approached his shipping company to get on a ship.

7. The applicant indicated that this incident occurred at his family home.  When asked if the attackers had weapons he replied that he does not doubt they did as they usually do not go anywhere without weapons.  The Tribunal queried the applicant why the attackers did not force their way in, using their weapons.  He replied that it was very quiet that night and all the neighbours had been woken, the nearby shops had been woken and the gate, which was a big gate, had been shut.

8. The applicant said he departed Pakistan one and a half to two months later.  He said he stayed at his [relative’s] house in a village 6-7 km away and at other houses and then stayed for a few days in Karachi with the shipping company.

9. The Tribunal queried the applicant that it had not located any information indicating that Usmani mosques were being targeted by militants.  He replied that he agrees there is no information regarding that but said they have been attacked.  He said there was also an instance of murder where a member’s son, a person named [Mr B], had been killed, but the story was not covered.  He commented that they do not want to draw attention to their group and added that mosques are being vandalised and disrespected but not destroyed and that just the one mosque had been destroyed.

10. The applicant’s witness said he knew the applicant because the Usmani mosque was next to his home in [Town 3].  He said the applicant went there and he (the witness) also sometimes went to that mosque.  He commented that there is talk that goes around that they don’t follow Islamic things.  When asked how the mosque started the witness said there are some Usmani people in the village.  When asked if the mosque is still there he replied that they have rebuilt a small mosque there.  The Tribunal asked the witness if there were any problems for the followers there now.  He said it’s been a long time, adding that there used to be problems when there was a political crisis but he does not know what is going on now as he has been in Australia for the last five years.  The Tribunal asked the witness who destroyed the mosque.  He said all the people were internally displaced but the talk was that the Taliban destroyed it because the Taliban used to threaten them.  The Tribunal asked the applicant if buildings were destroyed during the army operation and whether the mosque could have been destroyed by the army attacking the Taliban during the military operation.  The witness replied that the talk was that it was destroyed by the Taliban and the army had not said they destroyed it.  He added that the army had destroyed the houses of the Taliban commanders.

11. Considering all the evidence the Tribunal accepts that the applicant was a member of the PSF and subsequently of the ANP.  The Tribunal accepts that the applicant may have been involved in activities on behalf of the PSF/ANP such as he described: helping set up for meetings, attending meetings and rallies and encouraging people to vote for the ANP.  By his own evidence, the applicant did not seek ‘an office’ with the ANP because he was not present in the country on a permanent basis and because office holders should be highly qualified, communicative and sharp in order to better represent the party, whereas he is not a highly educated person able to make intellectual contributions to the ANP (or Usmani group) and does not have lecture or presentation skills to address a crowd, so he supports these groups to the extent of his capabilities and in his own way.  Given the applicant’s description of his activities the Tribunal considers that the extent of the applicant’s activities for the ANP would not have resulted in him having a high political profile.

12. Noting the extent of the applicant’s involvement with the ANP and the country information cited above indicating that, while TTP militants have attacked ANP members because of the organisation’s secular, left leaning ideology, and its support for counter-insurgency operations, such incidents have been increasingly rare in recent years; that the ANP is no longer in power in Khyber Pakhtunkhwa province; and the DFAT assessment that ANP members face a low risk of violence currently from political or militant groups based on their political affiliations, the Tribunal finds that the applicant was not targeted in the past by the TTP because of his activities on behalf of the ANP and finds that he does not face a real chance of suffering persecution involving serious harm in the reasonably foreseeable future on account of his support for and activities on behalf of the ANP.

13. The Tribunal also accepts that the applicant has an interest in the teachings of Dr Masood Uddin Usmani but also concludes that the applicant was not targeted for harm in the past because he supports and discusses Dr Usmani’s teachings or because he is a member of a local ‘Usmani group’ of Sunni Muslims.  In this regard the Tribunal found unconvincing the applicant’s claims to have been threatened and targeted for harm by the Taliban and their allies from around 2007 because he ‘always’ preached Dr Usmani’s teachings.  In his statement of claims in his Protection visa application he stated that the Taliban declared them to be infidels and ordered their killing.  He said he was sent two warning letters in about 2007 and 2008 to stop his anti-Taliban views and to withdraw his support for the Usmani group and the ANP.  He stated that from time to time he was sent threatening messages and received threatening telephone calls.  In his statutory declaration of 25 August 2018 he stated he had been a member of the Usmani group since 1996 and had been preaching the faith for many years and that during the Taliban uprising in Swat in about 2008 Taliban and Mullahs ordered their followers to burn the houses and mosque of the Usmani group members and to kill them.  He stated that he is on a Taliban hit list due to his active involvement with the ANP and his differing views on some religious concepts, that in his ‘home town’ he has been recognised as a deviant to the religion who can be attacked at any time; that there are several Taliban in his village who know him by face and name; and that he cannot relocate as Taliban and Mullahs are everywhere in Pakistan and Mullahs preach that Usmani’s are infidels making them a target for extremists.

14. Despite these claims, however, the applicant did not come to serious harm while he was in Pakistan and has only detailed a single incident, in late 2015, where he claims an attempt was made to abduct him from his family home in [Town 1] village.  In his statements he provided no examples where followers of Dr Usmani had been killed or their homes had been destroyed, even though he claimed there were 60-80 followers in the neighbouring small villages of [Town 1] and [Town 3], and even though he claimed he took an active part in preaching Usmani teachings including in small local gatherings and after Friday prayers, and indicated he did not stop his activities when warned to do so (contrary to his claims that religious intolerance compelled them to work covertly and so their methods of preaching were silent and calm).  As noted above, when the Tribunal put to the applicant at the hearing the inconsistencies between his statements and what actually occurred, the applicant altered his account significantly.  While he maintained that the Taliban destroyed their mosque, rather than it being destroyed in 2008 as originally claimed, both he and his witness indicated that the Taliban destroyed the building in mid-2009, at the time when the Pakistan army was undertaking a major operation to clear the Taliban from Swat, and when civilians had been evacuated from the area.  Neither knew for sure that the Taliban destroyed the building in question, as they were not there, but indicated that ‘the talk’ was that the Taliban had destroyed it.  While the Tribunal accepts that it is possible that the Taliban destroyed the building as claimed, it is also possible that it was destroyed in the fighting between the army and the Taliban.  It is clear, however, that the Taliban did not destroy the building in the period when they controlled Swat, from 2007 until April 2009, after which they were defeated in the army offensive from May until July 2009. 

15. The Tribunal finds there is nothing in the applicant’s evidence to indicate that during the period when they controlled Swat the Taliban acted to kill the 60-80 followers of Dr Usmani in [Town 1] and neighbouring [Town 3], destroy their homes or destroy their mosque.  Despite his statements that the Taliban had declared them infidels and ordered their killing and that he was on a Taliban hit list and had been sent warning letters in 2007 and 2007, the applicant said at the hearing both that followers were securing the mosque and that their leaders told them to make sure they did not have a confrontation with the Taliban but engage in dialogue with them.  He also commented that at that point the Taliban were ‘not that much in power’ and that the dialogue they had with the Taliban revealed that many of their views were the same and that it was later that the Taliban said they should be killed.  The Tribunal found this evidence to be completely at odds with the applicant’s written statements indicating that from around 2007 Usmani group followers were considered infidels by the Mullahs and Taliban and that in 2007-2008 he had been sent warning letters to cease his activities in support of the Usmani group (and the ANP), and at odds with the country information regarding the brutality and ruthlessness of the Taliban towards their opponents when they controlled Sway from 2007-April 2009.  

16. The Tribunal also found unconvincing the applicant’s comments regarding how he avoided the Taliban until the claimed incident in late 2015.  Earlier in the hearing the applicant indicated that he had been based at his family’s home in [Town 1] village while he was in Pakistan other than for brief periods spent in other locations while awaiting deployment to ships, during the evacuation of Swat in mid-2009, and for a few days in Peshawar/brief period in northern Punjab in 2014.  The Tribunal considers that if the applicant was on a Taliban hit-list as claimed it would have been easy for the Taliban to monitor his movements and locate him at his home well before late 2015, and before he sensed he was in imminent danger (the applicant himself commented in his written statement that it is very easy for the Taliban to target him anywhere).  The Tribunal also noted that the applicant’s comments that his home was not targeted because he was the only supporter there and they did not know it was his home are inconsistent with his advice that he had a brother who was also an ANP member and two elder brothers who were also followers of the Usmani group; the Taliban sent him warning letters in 2007/2008; there are Taliban in the village who know him by face and name; Taliban have tried many times to find him and attack him; and that he could be attacked any time.  Considering the above, the Tribunal concludes that the applicant was not and is not on a Taliban or other militant group hit-list and was not warned by the Taliban to cease his ANP and Usmani group related activities.

17. The Tribunal also found the applicant’s account of the claimed incident in late 2015 to be improbable, and in the context of the Tribunal’s overall conclusion that the applicant was not and is not on a Taliban hit-list, finds that this incident did not occur.  The Tribunal finds it improbable that if the Taliban had been seeking to eliminate the applicant since 2007/08, a group of Taliban members, having located the applicant at his home and, as the applicant accepted, likely armed with weapons, would not have succeeded in abducting or killing/seriously injuring the applicant when he opened the door and stuck his foot and head out to see who was there.  The applicant claimed at the hearing that they were about 12 feet away but also claimed he was struck on the right leg/foot with a crowbar, and then the assailants fled when he and others in the house screamed and yelled.  It would seem more likely that the Taliban members, if carrying a crow bar and close enough to the door to hit him with the crow bar, would have wedged this in the door to prevent him closing it when he saw who was there and would have forced their way in to his home, or would have fired on him using their weapons rather than immediately fleeing the scene.  While the applicant offered to show the Tribunal scars on his right foot as evidence of this incident, the Tribunal did not accept this offer as it considered that any scarring present could be the result of any number of causes and would not be evidence that he was struck with a crowbar by a Taliban member as claimed.

    Does the applicant face a real chance of suffering serious harm in the future from TTP members, Mullahs, Sunni Muslim extremists and/or their allies and supporters?

18. The Tribunal put to the applicant that the country information seems to indicate that there have been two important factors that have led to a greatly improved security situation in Khyber Pakhtunkhwa and in Pakistan generally: the defeat of the Swat Taliban in 2009 and Operation Zarb-e-Azb and the NAP in 2014.  The Tribunal commented that it appeared that while the TTP/extremist groups retained a capability to undertake target killings and one-off attacks such as the 10 July 2018 attack on the prominent ANP leader Haroon Bilour in Peshawar, the country information indicated that the frequency of such incidents was greatly diminished since 2012-13.

1. The applicant commented that while he agrees that the number of attacks on ANP members is lower than previously they all live in fear.  He said the border with Afghanistan is not secure and small groups of militants cross in the Bajaur and Peshawar regions.  He said ANP people are also less active due to fear of recognition and persecution.  The applicant’s representative commented that the applicant would be persecuted due to his support for the ANP and that where he used to live people are persecuted if they say anything against the majority religion.  The representative said those who kill such people are welcomed by the community when they are released from jail.  He referred to the case of Mashal Khan, the student killed at Abdul Khan University in Marden also mentioned by the applicant earlier in the hearing.  Considering the relevant country information, the Tribunal does not accept that ANP members generally are living in fear or avoiding harm by keeping a low profile.  Consistent with the DFAT advice regarding the low risk of harm faced currently by ANP members, the July 2018 article in The Diplomat referred to above commented that the day before the 10 July 2018 suicide attack in Peshawar that killed ‘prominent ANP leader Haroon Bilour’, Bilour’s uncle had told a Pashto-language radio station that the security environment is far better than 2013 and the party will achieve the best possible results this time.  The Tribunal finds that the incident was a one-off attack targeting a prominent ANP leader and that it is not reflective of a broader threat to ordinary ANP members and supporters such as the applicant.

2. The Tribunal has also considered press reporting on the death of Mashal Khan.  Reports indicate that Khan was shot and beaten to death by a mob of fellow students in April 2017 over allegations of blasphemy.  A report from The Express Tribune comments that blasphemy in Pakistan carries the death penalty and that, in many cases, an accusation alone is enough to inspire vigilante action against suspects.[30]  The article, however, makes no reference to Mashal Khan being a supporter of Dr Usmani’s teachings but indicates that his father alleges the university administration accused him of committing blasphemy to avoid accountability over claims of irregularities of their officials’.  Similarly, an April 2017 article in Reuters makes no reference to Khan being a member of the Usmani group and states that police say they have arrested 20 suspects and found no evidence to substantiate blasphemy allegations.[31]  A report in Radio Free Europe also indicated that Pakistani investigators believe the mob killing was premeditated by students who saw him as a rival in the PSF, the student wing of the ANP; that some faculty members pressured students to support the blasphemy allegations because of Khan’s past criticisms of the university; and that Khan had given media interviews where he complained about rising fees and poor performance among faculty staff.[32]  The Tribunal finds that there is nothing in these reports to indicate or suggest that Khan’s circumstances were similar to the applicant’s or that the killing of Khan indicates that the applicant faces a real chance of being killed in similar circumstances.  The Tribunal also finds that the only other reference the applicant has made to someone being killed because they followed Dr Usmani’s teaching is his comment at the hearing that a man named [Mr B], a ‘members’ son, was killed.  As there is no information regarding the circumstances of this death, the Tribunal also finds that it is not indicative that the applicant faces a real chance of suffering persecution involving serious harm due to him following and discussing the teachings of Dr Usmani. 

   [30] ‘AKWU administration, police behind Mashal Khan’s killing, claims father’, The Express Tribune, 24 May 2017, < ‘Dorm debate led to death in Pakistan ‘blasphemy killing’: witnesses’, Reuters, 15 April 2017, < ‘Pakistani Investigators Say University Student’s Lynching Was Premeditated’, Radio Free Europe Radio Liberty, 4 June 2017, < >

   The Tribunal also gives weight to the evidence by the applicant’s witness that a small Usmani mosque has been rebuilt in [Town 3] and the applicant’s evidence that there were 60-80 followers of Dr Usmani in the applicant’s home village of [Town 1] and neighbouring [Town 3].  The Tribunal considers that the lack of evidence of these people coming to harm at the height of the Taliban insurgency in Swat in 2007-2008 and their being able to rebuild their mosque subsequently (after it was destroyed during the time of the army operation in Swat in mid-2009) supports the finding that the applicant does not face a real chance of suffering persecution involving serious harm due to his religious beliefs should he return to Pakistan now or in the reasonably foreseeable future.

3. The applicant also claimed that the situation for followers of Dr Usmani is the same as that faced by the Ahmadi community in Pakistan.  The Tribunal does not accept that there is any evidence submitted by the applicant or available through internet searches or other sources to indicate or suggest this is the case.  The DFAT Country Information Report indicates that the Pakistan constitution was amended in 1974 to state explicitly that Ahmadis were considered non-Muslims and that in 1984 the government promulgated Ordinance XX, which banned Ahmadis from publicly practising their faith and using Islamic texts, among other matters.  DFAT assesses that Ahmadis in Pakistan face a high level of official discrimination which affects their ability to practise their religion freely, and are subject to a moderate level of societal discrimination, including accusations of blasphemy.  The report makes no reference at all to followers of Dr Usmani’s teachings and the Tribunal finds that, in contrast to the Ahmadi community, there is nothing to indicate or suggest that followers of Dr Usmani’s teachings face a real chance of suffering persecution involving serious harm.[33]

   Returnees from the west

   [33] DFAT Country Report, Pakistan, 1 September 2017, section 3.75-3.82

4. At the hearing the applicant commented that he also thinks that as a returnee to Pakistan people will think he is trying to bring in western ideas such as Christian and Jewish ideas.    The Tribunal also does not accept that the applicant faces a real chance of suffering serious harm as a consequence of being a returnee from a western country.  As discussed with the applicant at the hearing, country information from DFAT indicates that western influence is pervasive in many parts of Pakistan; that many Pakistanis have relatives living in western countries and those living abroad frequently return to Pakistan to visit their relatives; and DFAT assesses that individuals are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.[34]  

   [34] DFAT Country Report, Pakistan, 1 September 2017, section 3.139-3.140

5. The applicant commented that those who travel back and forth have a high profile but he would have issues because he is an ordinary middle class person and because he has absconded and sought asylum.  In this context the Tribunal also discussed with the applicant country information from DFAT regarding the treatment of returnees to Pakistan.  This information indicates that persons who depart Pakistan legally for interim travel destinations on valid travel documents, as the applicant did, have not committed immigration offences; those who return voluntarily with their own, valid travel documents are processed like any other Pakistani citizen returning to Pakistan; and only those who return to Pakistan involuntarily, on charter flights, or who have emergency travel documents, are likely to come to the attention of the Pakistani authorities at airports.  In this regard, DFAT advises that Pakistan’s Federal Investigative Agency (FIA), which is Pakistan’s federally controlled law enforcement agency, responsible for immigration and border control among other law enforcement matters, may question involuntary returnees to determine whether they are wanted for crimes in Pakistan, including minor immigration offences.  DFAT indicates that, in practice, those who are deemed to have committed minor immigration offences such as unlawful emigration are generally issued with a small fine and released.  DFAT has also indicated that it is not aware of any credible reports that returnees have been punished by authorities on their return to Pakistan.[35]  While the Tribunal accepts that the applicant may not be able to return to work as a seaman because he absconded from his ship the Tribunal finds that the DFAT country information indicates that there is not a real chance that the applicant would suffer treatment amounting to persecution involving serious harm due to him absconding from his ship, seeking asylum in Australia or due to him having spent time living in a western country.

   Health issues

   [35] DFAT Country Information Report, Pakistan, 14 April 2015, sections 5.22-5.25.

6. Noting the psychologist’s report the tribunal accepts that the applicant may be suffering symptoms consistent with Post Traumatic Stress Disorder (PTSD).  The Tribunal accepts that the applicant is taking anti-depressant medication.  As discussed with the applicant at the hearing, while country information makes clear that mental health services in Pakistan are not at the same level as in Australia, psychiatric and psychological services are available in major hospitals (public mental health treatment is free with free medication) and in the private healthcare system (which has proliferated and been embraced by the majority of Pakistanis due to the generally poor quality of the public health system).  Medication is easily available.[36]  The Tribunal finds that there is nothing to indicate or suggest that the applicant would be prevented from accessing available mental health services in Pakistan for one or more of the five reasons set out at s.5J(1)(a) of the Act.

   [36] European Asylum Support Office (EASO), Country of Origin Information Report, Pakistan, Country Overview, August 2015, – refugee criterion

7. Having carefully considered the applicant’s circumstances both individually and cumulatively, and the relevant country information discussed above, the Tribunal finds that there is not a real chance that the applicant would suffer persecution involving serious harm from the TTP, Mullahs, other extremist/militant groups and/or their supporters as a consequence of his membership of and activities on behalf of the ANP and/or because of his being a follower of the teachings of Dr Masood Uddin Usmani and/or his activities as a member of the Usmani group and/or because he is a ship absconder and a returnee from the west, should he return to Pakistan, now or in the reasonably foreseeable future.  Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   State protection

8. As the Tribunal has found that the applicant does not face a real chance of suffering persecution involving serious harm should he return to Pakistan in the reasonably foreseeable future, the Tribunal does not consider that the applicant would require the protection of the Pakistan authorities.

   Complementary protection

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  

10. For the reasons set out above, the Tribunal has not accepted there is a real chance that the applicant will face persecution involving serious harm from the TTP, Mullahs, other militant/extremist  groups and/or their supporters as a consequence of his membership of and activities on behalf of the ANP and/or because of his being a follower of the teachings of Dr Masood Uddin Usmani and/or his activities as a member of the Usmani group and/or because he is a ship absconder and a returnee from the west, should he return to Pakistan, now or in the reasonably foreseeable future.

11. While the applicant has not made specific claims in relation to the complementary protection criterion the Tribunal has also considered whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan.

12. In considering whether there is a real risk that the applicant will suffer significant harm in these circumstances, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[37] 

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

13. Having regard to its findings of fact set out above, the Tribunal finds that there is not a real risk that the applicant would suffer significant harm as defined at s.36(2A)(a)-(e) of the Act.  That is, the Tribunal does not accept that there is a real risk that the applicant will be arbitrarily deprived of his life; and/or will have the death penalty carried out on him; and/or will be subjected to torture; and/or will be subjected to cruel or inhuman treatment or punishment; and/or will be subjected to degrading treatment or punishment, from the TTP, Mullahs, other militant groups and/or their supporters, government or security forces, or anyone else, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

14. In reaching this conclusion the Tribunal has also considered the applicant’s mental health issues.  As noted above, the Tribunal finds that there are mental health services that the applicant could access, if required, in Pakistan.  The Tribunal accepts that these are not at the level of services available in Australia.  The Tribunal considers, however, that the lesser level of available mental health services in Pakistan is something faced by the population of the country generally and is not faced by the applicant personally, and that there is nothing to indicate or suggest that there is an intention to personally cause the applicant harm through the provision of lesser mental health services, and therefore finds that the lesser availability of such services does not constitute significant harm.

15. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul Windsor
    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.

    …