1612235 (Refugee)

[2018] AATA 5024

1612235 (Refugee) [2018] AATA 5024 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612235

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Paul Windsor

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2018 at 4:03pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – political opinion – Awami National Party – support of the Village Peace Committee – perceived opposition to the Pakistani Taliban – social work – fear of extremist groups – abduction and physical assault – fear of killing – state protection – reasonableness of internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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
SZATV v MIAC (2007) 233 CLR 18

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 9 July 2014 and the delegate refused to grant the visa on 28 July 2016 on the basis that he did not find the applicant’s claims to be credible and was not satisfied that there was any Convention ground that is the essential and significant reason for the harm feared.  As he found the applicant’s claims to not be credible the delegate also found there is not a real risk the applicant would suffer significant harm if he was returned to Pakistan.

3. The applicant sought review of this decision by the Tribunal on 8 August 2016.  The Applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 1-12 of the Tribunal file.

4. The applicant appeared before the Tribunal on 5 September 2018 to give evidence and present arguments.  The Tribunal 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.

   RELEVANT LAW

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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. 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

21. The applicant claims to be a citizen of Pakistan who was born in [Village 1] village in the Swat district of Khyber Pakhtunkhwa province, Pakistan on [date].  He states he belongs to the Pashtoon (Pashtun) ethnic group, is a Muslim and that he speaks, reads and writes Pasto, Urdu and English.  He indicates that he has never married or been in a de facto relationship.  The applicant indicates he departed Pakistan legally [in] March 2014 via Islamabad and arrived in Australia [in] March 2014, entering on a [temporary] visa.[2]

    [2] See folios 14-26 of the Departmental file.

    Summary of claims from the Protection visa application

1. The applicant’s claims from his Protection visa application lodged on 9 July 2014 are summarised as follows:[3]

   ·He fears he will be killed by militants/the Taliban if he returns to Pakistan.

   ·The authorities in Pakistan cannot protect him due to poor security conditions.

   ·Details will be provided in a later statement.

   [3] See folios 19-22 of the Departmental file.

2. The applicant engaged his representative on 10 September 2014.  He elaborated on his claims in a statutory declaration declared before his representative on 14 June 2016.  Relevant additional matters from this statutory declaration are summarised as follows:[4]

   [4] See folios 59-63 of the Departmental file.

   ·He only provided brief claims with his application as he was unable to secure legal assistance immediately upon his arrival in Australia.

   ·He was forced to flee Pakistan to avoid serious harm from the Taliban due to his political involvement with the Awami National Party (ANP) and his support of the Village Peace Committee (VPC).

   ·His entire family supports the ANP.

   ·His father has been an influential member of their community since he was a young child.  He is a village leader and assisted with Jirgas (meetings of community elders).  The family and he also supported the village Social Welfare Committee which provided support to the underprivileged.

   ·When Mawlana Fazlullah became influential in 2007 many supported his cause.  [Leader A] from his village became a Taliban commander.  In about mid-2008 [Leader A] requested that he assist the Taliban, utilising his skills from having studied at [College 1].  Afraid to refuse [Leader A] outright, the applicant said he would prefer to complete his studies first.

   ·A few weeks later he was taken by [Leader A] and a group of Talibs to their compound in his village.  He told [Leader A] he could not support the Taliban.  He was locked in a room and severely beaten.  He was only released when his father and other elders intervened and his father paid [amount] rupees.

   ·After this incident his father sent him to Peshawar to study.  While he was studying in Peshawar he joined the Pakhtun Student Federation (PSF) which is the student wing of the ANP.

   ·Following the army operation against the Taliban in Swat in May 2009 the army occupied their family home and used it as their base so they stayed at his uncle’s home. His father was a very influential member of the local VPC and contributed to the arrest of many Talibs.

   ·In early 2011, during his college vacation, he was staying with family when they received a threat letter from the Taliban stating that his father and father’s eldest child would be killed because they allowed the army to use their house, worked against the Taliban and supported the ANP.  His father subsequently asked the army to leave their house which they did.

   ·[One day in] June 2011 his father came to collect him for the summer vacation.  About [distance] from home (near [a named] village) gunmen opened fire on their car.  His father stopped and opened the car door.  He was then [shot].  The gunmen disappeared and his father had to go to the doctor who operated on his [injury].

   ·As his father was unable to work for a while after his surgery, the applicant stepped up and assisted the VPC.  He completed night watch.

   ·After his recovery, his father continued to assist the VPC and the ANP because he wanted to ensure the community had a future free from the Taliban.  The applicant decided also to assist the ANP in their local area and attended meetings with his father.  He also continued to assist supporting the VPC.  He and his father each carried a gun to try to avoid being harmed.  Each weekend he would return home from Peshawar.

   ·[In] February 2013 he was abducted by Talibs in Peshawar. He was taunted about supporting the army and the ANP, kicked and hit with the butts of their guns, and subjected to mental and physical torture.  His [suffered a specified injury].  He was threatened with beheading.  He realised he would be killed if he remained in their custody so after thirteen days he took a risk and was able to escape in the middle of the night.

   ·After escaping from the Taliban he knew he could not remain in Pakistan so his father arranged for him to obtain a [temporary] visa.  He stayed in hiding until he could depart Pakistan [in] March 2014.

   ·The authorities in Pakistan cannot help him as they are helpless and cannot prevent the Taliban from committing atrocities.  They are also regularly complicit in attacks committed by extremist groups.

   ·He cannot relocate as the Taliban have strong networks throughout the country.  As someone from Swat he would also be treated with suspicion and subjected to harm in other parts of Pakistan.

3. The applicant attended an interview with the delegate on 22 June 2016.  Following this interview the applicant’s representative provided a supporting submission dated 13 July 2016.[5]  Relevant matters from this submission are summarised as follows:

   [5] See folios 75-97 of the Departmental file.

   ·The applicant’s claims fall within the scope of the Convention for reason of his political opinion and membership of a particular social group, namely as a member of the VPC.

   ·Country information outlined in the submission indicates the disdain shown by extremist groups towards individuals who support ideologies which differ to their own.  Accordingly, it is submitted that there exists a real risk the applicant would be subjected to serious harm on return to Pakistan for reason of his political opinion both imputed and real.  Further, it is submitted his anti-Taliban sentiments would be heightened given he assisted the Village Defence Committee on an ongoing basis.

   ·Addressing concerns raised by the delegate at the interview with the applicant, the representative indicated that:

   ­The applicant did not disclose his attendance at [College 1] in his application because he only attended for a year in [year].  His Form 80 notes he resided at this college for the [specified] academic year.

   ­It is plausible that to safeguard his family the applicant’s father requested that the army leave his home while continuing to assist the VPC.  Without being in such a situation, it is difficult to pass judgements on such decisions.

   ­The applicant was not killed by the Taliban because he escaped from them.  He then remained in hiding until he could escape the country.

   ­The delay in applying for protection on arrival in Australia (4 months) was because he was unaware of the exact process and had to wait for legal advice and guidance.

   ·A report was attached from the applicant’s then psychologist indicating that the applicant suffers from Post-Traumatic Stress Disorder (PTSD) and faced past torture and trauma.  The applicant’s mental health should be taken into account when assessing his credibility and also when assessing the reasonableness of relocation.  Without a relevant support network he would be at risk of exploitation and harm upon relocation.

4. On 13 August 2018 the applicant was invited to attend a hearing before the Tribunal on 5 September 2018.  On 3 September 2018 the representative forwarded to the Tribunal a submission dated 31 August 2018 in support of the review application and a report of the same date by a Clinical and Forensic Psychologist, based on nine consultation sessions with the applicant from [March] 2017 to [August] 2018.[6]  Relevant additional matters from the representative’s submission are summarised as follows:

   [6] See folios 26-47 of the Tribunal file.

   ·When the applicant was abducted by the Taliban in February 2013 he suffered a [specific injury] and serious mental and physical torture.  Given his army training he finally was able to escape in the middle of the night.

   ·The representative raised the following concerns regarding the delegate’s decision:

   ­The delegate raised concerns with the applicant’s credibility on the basis that he considered the applicant’s evidence was regularly vague and unsubstantiated.  In reaching this conclusion the delegate did not take into account the applicant’s lack of familiarity with the immigration process, including formal interviews, and the impact on his mental health of the high level of torture and trauma he experienced in the past.  The delegate took a stringent approach which failed to take into account the applicant’s situation.  His questioning style was interrogative and dismissive.  While the delegate was dismissive of the applicant’s claims, he did not provide detailed reasoning for his findings.

   ­The delegate failed to understand the profile of the applicant’s father within the community, which emanated from many roles, including with the ANP, the Village Peace Committee, the welfare agency and his involvement in Jirgas.  Given the applicant’s role with the PSF, ANP and the VPC, he was also considered to be working against the objectives and aims of the Taliban and therefore was subjected to serious harm.

   ­The delegate did not accept the applicant was a member of the village Social Welfare Committee.  Based on the applicant’s detailed answers at interview regarding his role on this committee it is submitted the delegate’s reliance on the absence of documentary evidence and dismissal of this claim failed to consider the applicant’s oral evidence.

   ­In relation to the applicant’s attendance at [College 1], he has provided relevant documents and explained at interview his attendance and it is submitted this should be accepted.  Notwithstanding concerns regarding document fraud in Pakistan, given no anomalies were found in the documents submitted to the Department they should not be dismissed as non-genuine.

   ­The delegate dismissed the applicant’s claim to have been requested to assist the Taliban.  The applicant believes, however, that the Taliban were interested in him because he attended [College 1].  While the delegate dismissed as implausible that his father could have secured his release, it was common practice for the Taliban to seek ransom when kidnapping individuals and to use the money to fund their operations.

   ­The delegate discounted the claim that the family received a threat letter from the Taliban because the applicant did not mention this at interview until prompted.  This finding fails to take into consideration the applicant’s mental health issues.  The applicant did go on to explain all the issues he faced in Pakistan and threat letters are commonly relied on by the Taliban to intimidate and coerce individuals they deem are working against them.

   ­In relation to asking the Army to leave their home in response to a Taliban threat, it is plausible the family felt vulnerable and compelled to abide by the Taliban’s demands.

   ­The delegate found the applicant’s evidence regarding his escape from the Taliban in 2013 seemed fanciful. The applicant submits he knew he would die if he remained imprisoned and therefore summoned his strength to ensure he could escape.  He escaped while it was dark and he could hear that the Talibs were distracted.  Specifically he heard distant firing sounds and then heard the Talibs saying they needed to go to investigate – he escaped while they were away.  He still suffers severe back pain from the mistreatment he suffered.

   ­The applicant reiterates that the Taliban did not find him after he escaped because he kept a low profile, only going out when required and ensuring he would not be easily recognised.  They were compelled to remain in their home area as they had no other options.

   ­In relation to medical documents regarding the time taken for the gunshot wound sustained by the applicant’s father’s to heal, it is submitted that the delegate is not in a position to make such a judgment.

   ­It is submitted that health reports from qualified health practitioners should be afforded significant weight in line with relevant UNHCR guidance that ‘evidence of post traumatic symptoms strongly consistent with the experience of sexual violence and incarceration may make the applicant’s claim of imprisonment and sexual abuse persuasive’.

   ·The applicant’s father is now quite elderly and therefore if the applicant was to return he would be required to follow in his father’s footsteps, which would further place him at risk of serious harm.

   ·Country information referred to in the submission suggests there remains a concerning level of militant activity throughout Pakistan indicating that the Taliban is able to evade government authorities and carry out attacks without fear of retribution.

   ·It is submitted that the claimed harm also amounts to significant harm.

1. Relevant additional matters raised by the Clinical and Forensic Psychologist in his report of [August] 2018 are summarised as follows:

   ·When he escaped from the Taliban in February 2013 the applicant jumped off a bridge, hurting his back in the process.  A recent MRI scan has revealed [an injury] in his back.

   ·The applicant is a qualified [occupation] and is currently working with a [company].

   ·The applicant is taking medication for [his specified conditions].

   ·The applicant meets the diagnostic criteria for PTSD and Major Depressive Disorder.

   ·The psychologist recommends on-going psychological counselling as needed.

2. At the hearing on 5 September 2018 the applicant submitted copies of a police security advisory to his father and English language translation dated [in] November 2016 and copies of five photographs including of the applicant in his [school and college uniforms] and at the college, and of the applicant’s father with ANP officials.  He also showed the Tribunal a photograph of his father with a circular wound on the [specified body part] which the Tribunal took a photocopy of.[7]

   [7] See folios 62-67 of the Tribunal file.

3. Following the hearing, the representative  forwarded to the Tribunal a further submission, dated 21 September 2018, in support of the review application.[8]  Relevant additional matters from this submission are summarised as follows:

   ·It is evident the applicant’s father was respected in the community and supportive of the army’s cause and hence it is likely the army agreed to leave the family home because of the rapport built with them.

   ·It is plausible the applicant was threatened along with his father in the Taliban threat letter of 2011, even though he was away studying at the time, because he assisted his father and as the eldest son, is expected to follow in his father’s footsteps, and as a means of punishing his father.

   ·His father was greatly affected by being shot and therefore modified his behaviour to try to avoid further harm.  The applicant, as the eldest son, has a different profile to his brother who was much younger at the time of the conflict and was not involved in the VPC and ANP like the applicant.

   ·While the medical report submitted does not ‘necessarily suggest’ his father was shot in the [body part], given the under-resourcing of hospitals in Swat and the role of the applicant’s father it is plausible he was targeted in the manner claimed.

   ·It is conceivable the applicant was required to assist the VPC after his father was shot as he regularly attended with his father and was known to other elders and VPC members.

   ·Overall the applicant has provided consistent evidence regarding the 2013 incident.  Any perceived inconsistencies can be attributed to his mental health issues arising from the trauma he has suffered and the passage of time.

   ·The threat letter of 2011 may have contained the signature of the same Taliban commander who previously tried to recruit the applicant even though country information suggests the Taliban had fled the area as the information suggests the Taliban continued to have influence there after the army operation.  The commander also may have relied on associates to deliver the letter.

   ·It is submitted that the DFAT Country Information report is relatively dated and, as it is not clear whether DFAT conduct field trips to remote parts of Pakistan such as the applicant’s home area in compiling the report, a high level of weight should not be afforded to the report.  Various press reports regarding incidents in 2017 and 2018 are cited in support of the assertion that extremist groups continue to subject individuals who oppose them to serious harm throughout Pakistan.  It is contended that taking into consideration the applicant’s profile derived from his past involvement with the ANP, VPC and Social Organisation, coupled with his father’s work against the Taliban, he would be considered an enemy of the Taliban.  

   [8] See folios 51-60 of the Tribunal file.

   Findings and reasons

4. The issues in this review are whether there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

5. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Applicant’s identity

6. On the basis of the copy of the applicant’s Pakistan passport provided to the Department,[9] 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 country of nationality for Convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

   Vulnerability

   [9] See folios 44-47 of the Departmental file.

7. Noting the recent information from the applicant’s Clinical and Forensic Psychologist indicating that the applicant meets the diagnostic criteria for PTSD and Major Depressive Disorder and that he is taking a range of medication, the Tribunal asked the applicant at the hearing if he had taken any medication that day.  He replied that he does normally but had not taken any medication that day.  He indicated that he takes [medication] (for anxiety and depression) when required and [medication] (for insomnia) once a day usually.  He indicated that he is having ongoing counselling and his psychologist shows him ways to reduce his stress when it is elevated.  The Tribunal advised the applicant that if he needed a break at any time during the hearing to let the Tribunal know, including if he was feeling anxious, stressed or confused, or if he wished to talk with his representative.  The applicant did not request any breaks during the hearing and was able to engage fully with the Tribunal during the hearing.  The Tribunal was satisfied that the applicant was able to fully present his case, noting also that the representative provided detailed pre and post-hearing submissions. 

   Credibility

8. 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.

9. 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.

10. 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.

11. 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).

12. 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

13. The applicant claims to fear serious harm from the Pakistan Taliban (TTP) and other Sunni extremist groups and their supporters, due to his support for and activities on behalf of the ANP, his local VPC and his involvement with his village’s Social Welfare Committee, and because he is the eldest son of a prominent village elder who was involved with the ANP, VPC and the Social Welfare Committee.   

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

14. 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.[10]  Maulana Fazlullah assumed control of the TNSM in 2001[11] and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands.[12]  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.[13]

    [10] Khatam D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (ends), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289-313. See especially pages 291-294

    [11] Ibid.

    [12] 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

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

    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[14] and used beheadings to advertise its strength.[15]  The Khyber Pakhtunkhwa provincial Government entered into a number of ceasefire agreements with the TSNM from 1994,[16] 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[17] and displacement of the local population.[18]  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.[19]  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.[20]

    [14] 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

    [15] 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

    [16] 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

    [17] Ibid.

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

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

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

15. Country information indicates that Fazlullah was born and later established a madrassa in Imam Dehri, a small village in Swat district located approximately [distance] from the applicant’s home village of [Village 1].[21]

    [21] [Deleted.]

16. 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.[22] 

    [22] 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’.[23] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[24] 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’.[25]  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.[26]

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

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

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

17. 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.[27]

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

18. 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’.[28]

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

19. 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.[29] 

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

20. 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.[30]

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

21. 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

1. The Tribunal discussed with the applicant the following information regarding the ANP from DFAT’s Country Information Report of September 2017:[31]

   [31] DFAT, Country Information Report, Pakistan, 1 September 2017, 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.[32]

   The applicant’s father’s profile

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

   At the hearing the applicant indicated that his father is now aged in his [age range].  He indicated that his family continue to live in [Village 1] village in Swat district, which he said has a population of 5-6,000 people.  He said [Village 1] is located about [distance] from Mingora, the largest town in Swat district.  When asked if his father is retired, the applicant said he is at home.  He indicated that in the past his father just did social work as the family have considerable land-holdings which have been passed down from his grandfather and previous generations.  He indicated that the family properties include a house which they rent out as well as [land] and [several] shops.

2. When asked about his father’s role within the local community the applicant said he is one of the village elders and is an influential person.  He commented that people would come to their [property] to meet and talk with his father about problems they had.  He said his father did social work in the village to resolve conflicts among families; helped the poor, for example where there had been deaths in the family and women were widowed or where families needed assistance with their children’s schooling; and worked to resolve problems with things like sanitation or irrigation.  When asked specifically about the Social Welfare Committee, the applicant said this was a local committee established by [members] of the village.  He indicated that it was separate from his father’s ANP activities as it was a social society rather than involved in political activity.  He indicated that the society assisted with funeral arrangements (and that grave-digging tools were stored in their office area) and that they sought charitable donations to assist the needy, including widows and students whose fathers had died.

3. The applicant indicated that his father was also an ANP member, as was one of his uncles, who he said supported his father.  He indicated he has [other relatives] who are not interested in politics.  He said his father did not have an official title and had never nominated for election but was an influential member within their area.  He said people would come to speak with his father about their problems and his father would raise those issues with ANP MPs or officials when they visited the area.  He indicated that there was also an ANP person in the village who had been elected at the local council level. 

4. The applicant indicated that a VPC was established in [Village 1] after the army offensive against the Taliban in 2009.  He indicated that his family returned to [Village 1] late in 2009 after the army gave the all clear for those who had evacuated the area to return.  He said his father was one of [number] people on the Local VPC, which comprised [number] elders and [other] older ‘senior’ people from within the village. 

5. The Tribunal considered that the applicant’s evidence, including that his father had considerable landholdings and had given priority to his sons gaining tertiary education (both the applicant and his younger brother have attended university) was credible and consistent with his father being an influential elder within the village as claimed.

   Claim to have been abducted by the Taliban in mid-2008.

6. The Tribunal found the applicant’s evidence to have been abducted by a group of Talibs led by local commander [Leader A] and released following payment of PKR [amount] by his father to be plausible in light of his family circumstances and the country information regarding events in Swat at the time.

7. The delegate did not accept the applicant’s claim that he had attended [College 1] in [specified year] because he could find no reference to this in the Part G – Education section of the applicant’s personal particulars (Form 80) lodged with his application.  The applicant did refer to this school, however, in the Part D – Address and contact details section of his Form 80, where he indicated that he resided in Room [Number] at the [college] from [specified year] until [year].   The applicant subsequently provided the Tribunal with a photograph of himself wearing his [school and college uniform] and photographs of himself with [college] personnel in his hostel room.  Consistent with the evidence provided by the applicant, [the location] is more than [distance] from the applicant’s home village.

8. The applicant indicated to the Tribunal that he attended [College 1] because at that time he had wanted [a particular occupation] and thought that would make it a bit easier for him to pass the entrance exam to get in.  He said the education he had been receiving prior to going to [College 1] was under the administration of the provincial government while [College 1] was under the Federal system and provided a better quality of education.  He indicated that he did not receive any actual [specified] training while he attended the college but said it was a much more disciplined environment than the school he had been attending, as there was a routine that was followed strictly on time.  The applicant indicated that he did not pursue his desire to join [this occupation] as he heard he could not join because [details deleted] plus his marks were not as good as he had hoped.

9. When asked why the local Taliban commander though his having attended [College 1] would be of use to them the applicant responded that a lot of people, including the Taliban commander, thought that he had had [specified] training and did not realise that he had just studied at [College 1].  The applicant indicated that when he was first approached by the commander to join the Taliban, rather than cause a confrontation by saying he was unwilling to join them, he tried to stall the commander by saying that he wished to complete his studies.  He indicated that when he spoke with his father about the interaction his father told him try to avoid the Talibs by changing his route if he saw them coming and if speaking with them not to talk much, to smile, say okay and not argue with them.  His father told him those people are no good and if you say something loudly or in front of others they will harm you.  The applicant indicated that while Talibs were patrolling the local streets every day carrying guns and were in control of the local area, the situation was not as bad as it became 3-4 months later.  He commented that the local people had already heard that if people did something the Taliban did not like they would be named over the FM radio at night and the next morning that person would have disappeared or been killed.

10. The applicant said that some days later he again encountered the local Taliban commander [Leader A] and a group of Talibs and was stopped by them.  He indicated that this time [Leader A] was more forceful in telling him that now was the best time for him to join them because they are in power, would pay him monthly expenses of PKR [amount range] a month and he would have the opportunity to take revenge on anyone who had caused him a problem in the past, with their backing.  The applicant said the way [Leader A] was talking made him a bit angry and he argued with him saying talk of power and money was not the Islamic way.  The applicant indicated that [Leader A] slapped him and when he tried to resist others grabbed him and [Leader A] told them to bring him to their compound.  He said he was beaten and threatened that night.  The applicant indicated that someone who saw the altercation went straight away and told his father that he had been taken.  He said his father and other villagers went to their compound immediately and asked that he be released.  The applicant indicated that while he was being held there, his father was told that he had been taken somewhere else.  His father was told that he would need to pay money and apologise for their actions, and indicated that this was done through a middleman, to whom his father paid [amount].  In light of the relevant country information regarding the situation in Swat at the time, the Tribunal finds this account to be plausible.

11. The applicant indicated that following this incident he went to Peshawar to undertake further study (in late 2008).  He said he took admission mid-semester with a reference from his [relative].  The applicant indicated that he did not experience any problems in Peshawar when he first moved there, other than some homesickness, as the area where he was living was quite safe at that time.  He indicated that in mid-2009 when the army offensive against the Taliban was underway in Swat district, his family evacuated and stayed in [an] area of Peshawar.  He indicated that his family returned to [Village 1] village in late 2009, after the army announced victory over the Taliban and that it was safe to return.

12. Consistent with his written submissions, the applicant indicated that the army had occupied their family home during the operation against the Taliban and wished to continue to use their house in late 2009 when the family returned to [Village 1], as they were seeking to entrench their control over the area, so the family moved in with [a relative].  The applicant indicated that the army did whatever they wanted during the operation, and as their house was near a road and set a bit high, they took it over.  He commented that another unit [used] a house at the other end of the village.

13. Again, the Tribunal finds the applicant’s account of these events to be plausible in light of relevant country information.

    The applicant’s involvement with the ANP

14. The applicant indicated that he joined the PSF when he was studying in Peshawar from late 2008.  He said it was natural for him to join as his father and other family members supported  the ANP.  He said he subsequently became an ANP member (and has provided a copy of his ANP membership card).  He said he is attracted to the ANP’s philosophy because they are a secular party and because they emphasise non-violence, peace, development, education and socialism.  He commented that his father and grand-father had told him that these are the values of their religion – that they should take care of others, their neighbours, educated themselves and develop their area and the country.

15. When asked what activities he undertook on behalf of the PSF/ANP the applicant said at university the PSF would have an area where they welcomed new students, held welcome and farewell parties, organised entertainment, organised blood donations, and provided support and assistance for students having problems with issues such as exams.  He said they also organised political seminars which were like a start to a political career.  When asked if he held any official title with either the PSF or the ANP he said he did not.

16. Based on the applicant’s evidence the Tribunal concludes that he was a low level member and supporter of the PSF/ANP and not someone who might be described as a political activist.

    Claimed threat letter and shooting

17. The applicant indicated that they received a threat letter from the Taliban about a year after the family returned to [Village 1], at the start of 2011.  When queried why he would have been mentioned in that letter, given he was studying in Peshawar, the applicant indicated that when he was at home he was mostly with his father, and commented that it is traditional to also target the eldest son when there is a dispute with a family head.  When queried why his father would have acquiesced to the Taliban demand and asked the army to leave their house when he had indicated that his father had assisted the army, including as a member of the VPC; and why the army would have agreed to that request given he had indicated the army did whatever they wanted, the applicant said that his father saw it as a way to reduce the level of risk the family faced; that his father had political influence and influence as a member of the VDC; and that his father was also able to suggest to the army an alternative site in the school area, which was also set high.  The Tribunal found the applicant’s explanation to be plausible.

18. The Tribunal queried the applicant that the threat letter was signed by the same Taliban commander who had been responsible for him being detained in 2008, and that this seems strange given country information suggests the Taliban present fled the area during the army offensive in mid-2009.  The applicant replied that no-one knows if this commander is alive or dead as there has been no information about him and his body has been returned to the family.  He speculated that the commander’s colleagues may be continuing to use his name.  The applicant reasserted that his family received the threat letter and as a consequence asked the army to stop using and release their house.  On balance, the Tribunal accepts this account is plausible.

19. When queried regarding the claimed shooting incident in June 2011, the applicant indicated that his father had collected him from Peshawar for the summer vacation and they were about [distance] from home (near [a named] village) when they were fired on.  He indicated that they were stuck in heavy traffic so his father suggested they stop off at [a relative’s] house before continuing.  He said they were about to get out of the car when firing started, coming from a distance, and his father was hit by a bullet.  The applicant indicated that the incident occurred near an army checkpoint and army and other people came and the army personnel said they should go to hospital and the army commenced a search operation looking for the shooters.  The applicant said his father was hit in the [specified body part].  He said he drove his father to the hospital where he received some stiches and the wound was dressed.  The Tribunal queried the applicant regarding some differences between his account of this incident at the hearing and his written statement, which indicated at paragraph 13 that gunmen opened fire, his father opened the car door and was then shot in the [specified body part] and the gunmen disappeared; that a doctor operated on [him]; and that his father was unable to work for a while after his surgery.  The Tribunal queried the applicant that his evidence at hearing does not suggest his father had surgery, and the medical reports he submitted to the Department make no reference to a gunshot wound or any operation/surgery but refer to a wound on [that body part] being cleaned and ointment being applied on [that date in] June 2011, that the wound was healing [days later] and that on [a further date in] June 2011 the stiches were removed and the wound had healed.  The applicant commented that the healing took a long time.  When queried that this is not what the reports indicate the applicant said that is because the incident was not reported to the police, so a more detailed report was not written.  He said he was not with his father when his father was treated as he waited outside and is not sure whether his father told the doctors he was hit by a bullet.

20. The applicant also showed the Tribunal a photograph of his father showing a wound on [this body part].  This appears to be a circular wound and the Tribunal commented that it appears like a penetrating injury, in which case it might have been expected that his father would have suffered a broken bone in the [specified body part].  The applicant indicated that the bone was not broken.

21. The Tribunal also queried the applicant that reading his statement it had seemed that if this was an attempted target killing following the family having received a threat letter from the Taliban and if his father had stopped the car and got out, they would have been very vulnerable.  The Tribunal queried why the attackers would then have just disappeared.  The Tribunal commented that the way he had described the incident at the hearing it seemed like it could have been just random shooting at traffic from far away, rather than an attempted target killing.  The applicant replied that there was an army check-post close by and that maybe the attackers had been following them but were too far behind and thought there was a chance at that area but luckily they escaped at that time.   While the Tribunal has some doubts that this claimed incident was an attempted target killing or that the applicant’s father was even hit by a bullet as claimed, on balance the Tribunal accepts that it is possible that his father was hit on the [body part] by a bullet or fragment of a bullet and the assailants were deterred by the army presence at the check-post and fled.

22. The Tribunal put to the applicant that the country information indicates that while the Army offensive in 2009 was successful in regaining control of the area from the Taliban, it is clear that the Taliban retains the capacity to undertake target killings of those it considers to be its enemies, of which police/army personnel, ANP activists and VPC members appear to be the main targets.  The Tribunal commented that it is very clear there is a heightened risk of harm for some individuals and queried why, if his father had been specifically targeted for harm in 2011, his father had been able to remain living in the same house in the same village for a further seven years and had not suffered harm, nor had other family members, including his now [age] year old [brother].  The applicant replied that luckily his father has not been hit to this point but commented that his father has also received threat calls but does not want to discuss the details of these threats with the applicant.  He said his father also takes measures to protect himself by limiting his activities (commenting that he is old now and just goes out to the mosque) and changing his routine, and has installed security cameras and hired a security guard, on advice from the authorities (the applicant submitted a document to this effect).  The applicant indicated that his brother is still young, is not the eldest son, and does not have the same profile of ANP and VPC related activities as he does.

1. The applicant indicated in his statement that after his father suffered a [specified] injury in June 2011 he had ‘stepped up’ and taken on his father’s role on the VPC.  The Tribunal queried the applicant about this.  Consistent with available country information, the applicant indicated that following the army offensive in mid-2009, a VPC was established in their village to assist the army in identifying who in the village had been Taliban members or supporters and in maintaining security on an ongoing basis to stop possible Taliban re-infiltration of the village.  He indicated that his father, as an influential elder, someone who was politically active for the ANP, and whose house the army were already using [in] the village, was involved in establishing their local VPC.  He said there were [number] members, [some] of whom were influential elders like his father and [some] of whom were other senior people from the village.  He indicated these were people who were strongly opposed to the Taliban and wanted to work with the army to stop the Taliban re-establishing themselves in the area.  The Tribunal considered the applicant’s account in relation to his father’s involvement in the VPC to be plausible.

2. The applicant indicated that he assisted his father in his VPC activities because he was educated while many in the village were illiterate.  He said he helped inform villagers by loudspeaker when there was to be a curfew, helped draw up the roster for those who would undertake night watches to guard again Taliban movements into the village, and would assist with the distribution of aid rations, which were distributed from his father’s [property].

3. While the Tribunal accepts that it is plausible that the applicant would take on such roles, it queried the applicant why he would need to fill in for his father on the VPC, given there were [number] members and given his very young age at the time ([age] years).  The applicant replied that his role was not like that of his father but that his father had shared with him what he did and the applicant had a relationship with the army in the village because he was comfortable with them from his time at [College 1] and liked to walk with them when they were patrolling and talk with them.  The Tribunal also queried the applicant about the amount of time he spent in the village given he was studying in Peshawar from late 2009 until 2013. He indicated that he returned to the village on weekends and during semester breaks.  When asked how long the trip took he said about [time] by car.  When it was put to the applicant that Google Maps indicates that the quickest route is [amount] km and takes [time] by car the applicant said it takes [lesser time].  He said sometimes 3-4 people would share a car and sometimes his father would come to collect him.

4. The Tribunal has some concerns that the applicant has exaggerated the extent of his involvement with the VPC, particularly in relation to him ‘stepping up’ in place of his father when his father was recovering from his [injury], but accepts that his father was a member of the VPC and that the applicant assisted his father with his VPC activities as well as assisted his father with ANP related activities.

   Claimed abduction in February 2013

5. The Tribunal asked the applicant about the claimed incident in February 2013 where he states he was abducted by a group of Talibs in Peshawar.  The applicant said he was returning to his hostel from the area where he prayed at the mosque and where the supermarket was located, when a car pulled over and he had something put over his head and was bundled into the car.  He indicated that he was driven a long distance to an unknown location.  He said they did not speak with him for a few days until their ‘head’ came.  He said he was held for 13 days and that initially they spoke about him working for them, telling him he would go to paradise.  He indicated that he was hit a lot and showed the Tribunal that he had [a specified injury].  When asked if he suffered back injuries he said while he was hit a lot he did not suffer back injuries from the beatings.  He said that he has now been told that scans reveal he has bulging discs in his back but he believes that is from when he jumped to escape from his captors.  He said he had jumped from a window, then a wall and then near a bridge.  He said it was very dark so he could not judge the distance and when he jumped he landed on his heels and there were ‘light flashes’ in his eyes.  He said he thought his back pain might come from that.

6. When asked how he was able to escape the applicant said his captors had started talking about killing him after securing a ransom from his father.  He said he knew if he did not escape he would be killed so he waited for an opportunity.  He indicated that one night he could hear firing from far away and heard his captors talking about going to investigate.  They went out, locking the door.  He said he had his hands tied behind his back with rope and showed the Tribunal how he has the flexibility in his shoulders to be able to bring his hands up together from behind his back over his head to the front, and said he did this and then was able to untie his hands.  He said he then jumped from a window and ran for a few hours to reach a main road where he was able to get a taxi back to Peshawar and then make his way back home.  The Tribunal queried the applicant how he was able to run for hours given the injuries he had sustained, which by differing accounts included [various specified injuries] due to jumping off a bridge.  The representative commented at this point that the reference to a [specific injury] was an error on her behalf and should have referred to a [specified injury].  The applicant commented that while it was very difficult and he was in severe pain in his back area he kept on going, holding his back and looking back to see if he was being followed.  He said if any part of his body ‘was missing’ that was not good but was better than losing his life and that he had to run because he had to save himself.  The applicant added that he still feels when he goes somewhere that someone is trying to catch him from behind but with the help of his psychologist he realises he is safe in Australia.

7. The Tribunal asked the applicant why these people would have abducted him in Peshawar rather than in his home village.  The applicant speculated that maybe they had not had an opportunity in his home area, or wanted him to work for them, or needed money and knew his father had paid for his release in 2008 or just wanted to threaten them.  He said he was not sure what their intention was.  He added that his father and the family were already involved with the ANP and are a target for groups like the TTP, IS and LeJ because they are against them.  While the Tribunal has some concerns regarding the applicant’s evidence in relation to this claimed incident, on balance the Tribunal accepts that it occurred and that the applicant was targeted because of his father’s and his perceived pro-army and anti-TPP activities, including their involvement with the ANP and the VPC and their support for the army.

8. The delegate considered that the delay in the applicant applying for protection after arriving in Australia in March 2014 was inconsistent with him having a well-founded fear of persecution at that time.  The Tribunal considers, however, that the four month delay (until July 2014) is understandable in the context of the applicant having arrived on a [temporary] visa valid until [March] 2017 and the applicant needing to find out about the process for applying for protection and how to obtain legal assistance, as claimed.

   Does the applicant face a real chance of suffering serious harm in the future from the TTP and/or other Sunni Muslim extremist groups and/or their supporters?

9. 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 and other extremist groups have 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.

10. The applicant commented that while he agrees with the DFAT advice indicating that militant groups have split and their power is down a bit, they are not finished yet.  He referred to a recent suicide bombing in Swat that resulted in the death of 11 soldiers who had been playing volleyball (a press report referred to in the submission of 21 August 2018 comments that responsibility for this attack was claimed by the TTP, which warned of more attacks, that it was ‘one of the deadliest in Swat since 2013’, and that it was the second attack in a month).  He also referred to an attack in Balochistan province that claimed the life of an Awami Party person and 125 others.  He said that when the Taliban were in power many were killed every day but while the numbers killed are now fewer, they are still using target killings and bomb blasts.  He said they will never quit.  The applicant commented that the media do not report all incidents that occur as the army does not release information on all incidents because they do not want people to see what is happening as it would damage morale.  He added that the majority of TTP members and supporters are unaccounted for and no-one knows where they have gone as they are not in army or police records and they may have changed their appearance and identity.

11. In the post-hearing submission the representative also cited more recent press reports regarding the killing of a police Additional Inspector General in Peshawar in 2017; a TTP attack on Peshawar’s Agricultural Training Institute in 2017 in which nine people were killed; a bombing in Lahore in Punjab province in 2017 in which 26 people were killed; a 2017 roadside bomb blast targeting a ‘local leader opposed to the Taliban’ in Swat, described as a member of the local Village Defense Committee; the killing of an ANP candidate in Peshawar in 2018; further articles regarding the killing of ANP leader Haroon Bilour and associates during the election campaign in July 2018 (discussed at the hearing); the killing of the spokesperson for an ANP candidate in Peshawar in 2018; and a 2018 gun and bomb attack in a court in Islamabad in which at least 11 people, including an additional sessions judge, were killed, and for which responsibility was claimed by a TTP splinter group.  A press report regarding the Balochistan incident referred to by the applicant indicates that IS claimed responsibility and among those killed was a Balochistan Awami Party candidate for the Balochistan provincial assembly.

12. Considering the relevant country information (and noting that the relevant DFAT advice supports the applicant’s contention that restrictions on media reporting in Khyber Pakhtunkhwa may mean that some incidents, particularly those involving low-level officials, are not reported) the Tribunal does not accept that ANP members generally face a real chance of serious harm.  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 this incident (and others cited by the representative) refer to attacks on ANP election candidates or high-profile officials and are not reflective of a broader threat to ordinary ANP members and supporters such as the applicant.

13. The Tribunal considers that the country information does indicate, however, that despite the military gaining control of Swat in 2009 and the resultant improvements in the overall security situation, the Taliban and other militant groups continue to launch attacks against military targets and those they consider support the Pakistani authorities, including VPC members. 

14. While the Tribunal assesses that the applicant may have exaggerated the extent of his VPC activities, the Tribunal finds that, cumulatively, the applicant’s VPC related activities, his membership of and support for the PSF/ANP, his actual and perceived involvement with and support for the army and his association with his father give rise to the applicant having a profile of actual and imputed political opposition to the TTP and related extremist groups.  The Tribunal accepts that should the applicant return to Pakistan and continue activities in support of the ANP and his local VPC in Swat district, the risk of harm to the applicant cannot be dismissed as insubstantial or remote.  The Tribunal accepts that the applicant’s association with his father, who the Tribunal accepts was an active ANP member, village elder and VDC member, increases the level of risk faced by the applicant.  The Tribunal also finds that the applicant’s increased maturity (he is now [age]) and his status as the eldest son of his father, would likely bring expectations of increased political and community involvement in support of his ageing and less active father.  The Tribunal finds, therefore, that if the applicant returns to his home in Swat district, there is a real chance that he will face serious harm from the Taliban on the basis of having an actual and imputed political opinion of opposition to the Taliban and related extremist groups, due to his and his father’s activities in support of the Pakistan army, the ANP, and the VPC. 

15. The Tribunal accepts therefore that should the applicant return to his home in Swat district or elsewhere in Khyber Pakhtunkhwa now or in the foreseeable future, there is a real chance he will face serious harm from the Taliban or related extremist groups as per s.91R(1)(b).  The Tribunal further finds that the essential and significant reason for the harm would be the applicant’s actual or imputed anti-Taliban political opinion as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c).

    Availability of state protection

16. In this case, the harm that the applicant fears from the Taliban and other extremist groups is from non-state agents and the applicant claims that the Pakistani authorities cannot and will not protect him from that harm.  In his evidence the applicant states that the authorities are helpless and cannot prevent the Taliban from committing atrocities.  The applicant’s representative submits that there remains a concerning level of militant activity throughout Pakistan which indicates that the Taliban is able to evade government authorities and carry out attacks without fear of retribution.

17. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm.  Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

18. In its country information report DFAT indicates that Pakistan continues to face security threats from militant groups and that Khyber Pakhtunkhwa is among the regions experiencing relatively higher rates of militant and sectarian violence.  This is despite Operation Zarb-e-Azb being expanded to include Khyber Pakhtunkhwa province and militant groups having more limited access to former safe-havens in Khyber Pakhtunkhwa.  DFAT also comments that several interlocutors in Pakistan told DFAT that the underlying conditions for militancy – particularly weak judicial and law enforcement institutions and economic under-development – have not been addressed, and speculated that violence would likely increase again after a period of relative calm, and noted that there had been an increase in the frequency and severity of terrorist attacks across the country since late 2016, including in Peshawar in Khyber Pakhtunkhwa province.  DFAT comments that despite the measures introduced under the NAP to curb violence across the country, successful prosecutions of those responsible for politically-motivated or sectarian violence are rare, due in part to the ineffectiveness of police investigations and the effect of threats against judges, lawyers and witnesses.  DFAT also assesses that state protection in Pakistan is limited by resource shortages, personal socio-economic status and in some cases, political will.[33] 

    [33] DFAT Country Information Report, Pakistan, 1 September 2017.

19. The information before the Tribunal indicates that the situation in the Khyber Pakhtunkhwa province remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban and related extremist groups.  While the security situation appears to have been tempered by the presence of the army, there are clear indications that militants remain active in the area and that little is done in response to attacks on residents by militants.  Given the long-standing nature and seriousness of the violence in the Swat Valley, together with information indicating that the authorities in Pakistan are struggling to contain that violence, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities in the Swat Valley does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his political opinion if he returns to his home in Swat or elsewhere in Khyber Pakhtunkhwa, now or in the reasonably foreseeable future.

    Relocation within Pakistan

20. Having accepted that the applicant has a well-founded fear of persecution in Swat District and Khyber Pakhtunkhwa, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.    

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

1. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.  The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[34]  

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

2. In his oral evidence and in written submissions to the Tribunal the applicant has asserted that it is both not safe for him to relocate to another area to avoid the harm he fears from the Taliban in Swat and unreasonable given his particular personal circumstances.  He submits that Taliban members have fled to all parts of the country, that no-one knows where they are, and that they have strong networks throughout the country.  He states that because he originates from Swat and due to the ongoing conflict in his area, he would be treated with suspicion wherever he went.  The representative submits that given the applicant’s ongoing involvement with the ANP and the public nature of his affiliation with both the ANP and the VPC he has a profile that would place him at risk of harm wherever he resided in Pakistan, because Taliban networks extend throughout the country and his return to Pakistan would be discovered through his family, friends and community.  It is further submitted that it would not be reasonable to expect the applicant to relocate given his lack of familial, property or tribal links in other areas, the level of suspicion with which he would be treated by authorities, and the challenges he would experience in finding employment and accommodation.  It is submitted that his health issues would make him further vulnerable to exploitation and serious harm given he would not have a support network to assist him and given it is likely that he would not be able to obtain adequate medical support given the level of medical resources in Pakistan.

3. The Tribunal has given careful consideration to these issues.  As discussed above, while the Tribunal does not accept that individually the applicant has a profile as an ANP activist or as a consequence of his activities on behalf of the [Village 1] VPC, the Tribunal accepted that cumulatively, the applicant’s activities combined with those of his father and his relationship with his father gave him a profile in Swat and in Khyber Pakhtunkhwa province that resulted in him facing a real risk of serious harm.  While the Tribunal accepts that the Taliban operate throughout Pakistan the Tribunal does not accept that the country information supports the premise that Taliban networks are such that someone with the applicant’s profile would be of interest to and therefore targeted by the Taliban wherever he went in Pakistan, for example in Islamabad or Lahore.  On the evidence before it, the Tribunal does not accept that the applicant’s actual or imputed political views, his activities on behalf of the ANP and/or the [Village 1] VDC, or his association with his father, a more prominent and more active ANP member and VDC member, make his relocation to Islamabad or Lahore for instance, unsafe for the applicant. 

4. As well as considering whether the applicant faces a real chance of serious harm outside of his home region, however, the Tribunal must also consider whether it is reasonable, in the sense of ‘practicable’, for the applicant to relocate to another area of Pakistan where he would not face a real chance of serious harm.  This assessment must be made in light of the particular circumstances of the applicant and the impact upon him of relocation within Pakistan.

5. Medical evidence before the Tribunal indicates that the applicant has been seeing psychologists since February 2015 and began seeing his current psychologist in March 2017 (and has been assessed as having symptoms which are consistent with PTSD and Major Depressive Disorder).  He has been prescribed medication for anxiety/depression and for insomnia as well as for back pain and gastritis.  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.[35]

   [35] European Asylum Support Office (EASO), Country of Origin Information Report, Pakistan, Country Overview, August 2015, >

   At the hearing the applicant said that before he came to Australia he did not know that stress and anxiety trauma was even an illness or that treatment existed for it.  He indicated that treatment may be available in some places in Pakistan but commented it is very difficult to get treatment in the same place where you fear harm and are trying to stay alive rather than staying in a hospital to be treated.

100.   In considering the applicant’s circumstances and the ‘reasonableness’ of him relocating within Pakistan the Tribunal has considered advice in the DFAT Country Information report that while many Pashtuns have migrated to urban areas including Islamabad and Lahore, and that community leaders had told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country, DFAT is also aware that members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty in obtaining identification, and that since the commencement of Operation Zarb-e-Azb and the NAP, large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities - due largely to the fact that the TTP’s support base is primarily Pashtun.[36]  The Tribunal finds this advice is consistent with concerns expressed by the applicant.

[36] DFAT Country Information Report, Pakistan, 1 September 2017, sections 3.3-3.6.

101.   Noting the medical evidence indicating that the applicant meets the diagnostic criteria for PTSD and Major Depressive Disorder and the advice that persons with PTSD need to know that they feel completely safe and the applicant would not feel safe even if he relocated away from his family and village, but would be isolated, which would not be of any benefit to him, the Tribunal accepts the applicant’s ongoing mental health issues will impact on his ability to relocate within Pakistan.  The Tribunal also notes the psychologist’s advice that the applicant’s symptoms may place him at increased risk for self-harm.  While the Tribunal is mindful that the applicant has found accommodation and work in Australia and therefore has in the past demonstrated a degree of adaptability and resilience in terms of living in new and unfamiliar environments, the Tribunal accepts that this is in an environment where he feels safe and can readily access high quality support services.  On balance, and considering the totality of his circumstances, the Tribunal accepts that, given the applicant’s significant mental health concerns and lack of family support outside of Swat, returning to Pakistan and having to relocate to a city like Islamabad or Lahore, where he would need to find accommodation and employment and might suffer harassment by police and security forces because his identity documents indicate that he is from [Village 1] village in Swat district, would be a major stressor on the applicant which could result in a significant decline in his mental health.  Given the applicant’s mental health concerns and associated vulnerability, and his lack of family support outside of the Swat district, the Tribunal concludes it would be very difficult for the applicant to re-establish his life outside the Swat district.

102.   For these reasons, the Tribunal does not consider it would be reasonable to expect the applicant to relocate himself to another part of Pakistan where he has no family or social supports, to escape the harm he fears in Swat and Khyber Pakhtunkhwa.

Conclusion – Refugee grounds

103. For the reasons given above, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan in the reasonably foreseeable future, for the Convention reason of his actual/imputed political opinion. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and therefore he satisfies the criterion set out in s.36(2)(a).

DECISION

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

Paul Windsor
Member