1613833 (Refugee)

[2018] AATA 5069

1613833 (Refugee) [2018] AATA 5069 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613833

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Paul Windsor

DATE:16 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2018 at 4:26pm

CATCHWORDS

REFUGEE – Protection visa – Pakistan – Pashtun – political opinion – Awami National Party supporter – belongs to a well-known and influential family – actual and imputed political profile as pro-military/Pakistani government and anti-Taliban – particular social group – sons of former NGO workers and known activists against the Taliban – effective State protection is not available – significant mental health concerns – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65,499

Migration Regulations 1994, Schedule 2

CASES

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 21 September 2015. The delegate refused to grant the visa on the basis that she did not consider that the applicant’s activities with the Awami National Party (ANP) and his local Village Peace Committee (VPC) were at a level that would ‘cause him to be continuously targeted and pursued by the Taliban throughout Pakistan’.   In reaching this conclusion the delegate noted the delay in the applicant departing Pakistan after claiming to have received a threatening call in December 2013 and the delay in his applying for protection on his arrival in Australia, finding that these delays do not reflect the actions of a person in serious fear of persecution.  In considering whether the applicant faces a real risk of suffering significant harm the delegate found that the applicant could relocate to Islamabad, where he would be safe from persecution, and that it is reasonable in the sense of practicable for him to do so.

3. The applicant sought review of this decision by the Tribunal on 30 August 2016.  The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 1-11 of the Tribunal file.

4. The applicant appeared before the Tribunal on 15 November 2018 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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

   CRITERIA FOR A PROTECTION VISA

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

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant claims to be a citizen of Pakistan who was born in [Village 1] in the Swat district of Khyber Pakhtunkhwa province, [Pakistan].  He states he belongs to the Baba Khail (Pashtoon) ethnic group, is a Sunni 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] September 2014 and arrived in Australia [in] September 2014, entering on a Student visa.[2]

    [2] See folios 16-40 of the Departmental file.

    Summary of claims from the Protection visa application

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

    ·He left Pakistan because he felt unsafe and that his life was at risk from the Taliban.

    ·He and his family members received threats from the Taliban that they will be killed.

    ·Members of his family have been killed and his father was lucky to escape from a Taliban attack.

    ·He was sent to Balochistan to study and for his safety but experienced trauma there.

    ·He cannot relocate as the Taliban have a strong network in Pakistan.

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

14. The applicant expanded on his claims in a statutory declaration dated 18 September 2015 included with his application.[4]  Relevant additional matters raised in this statutory declaration are summarised as follows:

    [4] See folios 43-46 of the Departmental file.

    ·He belongs to a Malik (village chief) family – his grandfather was sworn in as a [Malik].  His family is influential in the area.  They have always been actively involved in the welfare and other social activities of their area.  His father worked in different non-governmental organisations (NGOs) in Swat from 1993 until 2008.  His father and grandfather led many Jirgas (tribal meetings) to resolve disputes in their area.

    ·His family members have supported the ANP from the beginning of the party.  His father is not an office bearer but is highly respected within the party for his activities on behalf of the party.  They have been actively involved in party activities in their area before during and after the election.  He became a member of the Pakhtoon Student Federation (PSF), which is the student wing of the ANP, when he was at college in Swat.

    ·When the Swat Taliban came to prominence they targeted the influential families of Swat as they knew these families would be the first to raise their voices again the Taliban.

    ·His father was named on the Taliban’s illegal FM radio station asking him to stop his ANP activities and to resign his job or he and his children would be killed.  His father resigned his job in [2008] but refused to step down from his political activities.

    ·At the end of July 2008 the applicant was beaten and threatened by Talibs when he sought to stop them storing goods [at] his family’s guesthouse.  He was threatened that he would be shot if he continued arguing with the Talibs.  When his father intervened he was also threatened.  Soon after this incident his father sent him away from Swat for his safety and he was admitted to [a university] in Quetta, Balochistan province.

    ·While he was studying in Quetta he was informed that the Taliban killed two of his father’s cousins, who were ANP members, in late December 2008.

    ·His father and other elders of the area requested the ANP government take action against the Taliban.  When negotiations failed, an Army operation was ordered and the local people were asked to leave as Internally Displaced People (IDPs).  During this time one of his uncles, who was an ANP member, was shot dead by the Taliban.  His family went to Mardan as IDPs, returning in August 2009 when the Army had cleared the Taliban from Swat.

    ·After the operation, the Army asked local and influential people to help in settling Swat and ensuring the Taliban could not return.  Many local people including his family assisted the Army.  While the Army were in full control the Taliban presence was still felt there.  There have been numerous attacks on people who helped the Army.  Since then his father has been actively involved in the peace and restoration process.  He has handed over to the Army many Taliban members known to him.  In November 2011 his father was threatened over the phone by the Taliban to withdraw his support for the ANP and the Army or be ready to sacrifice his children.

    ·The applicant went with his father to many meetings with the Army and with the ANP.  He was active in campaigning for the 2013 election.  He has assisted the Army by showing them houses of Taliban known to him which were later destroyed.

    ·[In] June 2012 he was travelling to University when a bomb exploded on the University bus killing five and injuring many more.  He was not injured but was extremely worried and depressed after this.

    ·[In] December 2013 he received a call from an unknown person threatening him to stop his activities for the ANP and for the Army.  He was told he and his father would soon be killed to teach them a lesson.  When his father spoke to the Army about this call he was advised to carry a gun.  The applicant resigned from his job and his father asked him to leave the country.  He sent his documents to [Country 1] and [Country 2] and also sat an IELTS exam and applied for a student visa for Australia.  This was granted and he arrived in Australia [in] September 2014.

    ·His father has continued his activities with the ANP and assisting the Army.  [In] November 2014 his father and one of his great cousins were attacked by gunmen.  His father escaped but his father’s great cousin was killed.

    ·In about early April 2015 another of his father’s cousins was killed by the Taliban and in about May 2015 one of his father’s friends who also worked with his father and the Army was killed by the Taliban.

    ·[In] August 2015 his father received a threat letter from the Taliban stating that very soon they will target him and his family.  When told about this letter by his mother, the applicant began having nightmares and could not sleep or concentrate on his studies.

    ·He fears that if he returns to Pakistan he will be killed or mistreated by the Taliban.

15. The applicant attended an interview with the delegate on 12 August 2016.  He also submitted to the Department a report from a psychologist dated 16 July 2016 and various supporting documents regarding his family and the security situation in Swat.[5]  Relevant matters raised in the psychologist’s report are summarised as follows:

    ·The applicant was referred by his GP for assistance with Mixed Anxiety and Depression.  He has been seen by the psychologist since  [January] 2016.

    ·The psychologist considers ‘there is little doubt that [the applicant] is suffering from Depression however he is also ill with worry, vigilant and hyper-aroused…’.  His ‘arousal state is exhausting for him, causing him to be unwell and limited in functioning.  She opines that ‘In all likelihood, [the applicant] is suffering from Stress Disorder’.

    ·The psychologist notes that the applicant ‘impresses as genuine’ and that ‘All elements of his presentation have been consistent with his narrative and described symptomology’.

    [5] See folios 86-201 of the Departmental file.

16. On 13 November 2018 the applicant’s current representative provided submissions in support of the review application.  These included a further statutory declaration dated 24 August 2017; a further report from the applicant’s psychologist, dated [July] 2018; copies of two death certificates and a letter of support from the brother of the deceased; and legal submissions dated 12 November 2018.[6]

    [6] See folios 53-98 of the Tribunal file.

17. Relevant additional matters from the applicant’s statutory declaration dated 24 August 2017 are summarised as follows:

    ·He is the eldest son of his family.

    ·His great-grandfather was the first in his family to be appointed Malik.  He was a significant land-owner and respected by the local population.  The role is intended to pass down through generations.  His father’s expectation is that the applicant will prove himself capable of inheriting the role.  The role of Maliks is to carry out the tribal governance rules.  The main role is to sit on a local council, called a Jirga, to solve local disputes rather than the parties going to court or to the police.  For this reason Maliks have a specific authority.  His father still sits on Jirgas and performs the role of a Malik.

    ·His father was [an Occupation 1] by profession.  He worked for NGOs.  Maulana Fazalullah and the Swat Taliban issued edicts against people who worked with NGO’s saying they were foreign funded and therefore were spreading foreign influences.  His father resigned from his NGO work after being named on Fazalullah’sradio station as his work as [an Occupation 1] for an NGO made him particularly vulnerable to attack.

    ·The applicant joined the PSF when he was [age] years [old].   He joined his father in campaigning in support of the ANP candidates in the lead-up to the elections for their local national [and] provisional [seats].

    ·His uncle was shot and killed during the time of the mass evacuations from Swat in May 2009.

    ·His parents returned to Swat in August 2009 after around three months in Mardan.  He wanted to see them so returned to Swat briefly in 2009.

    ·The Army convinced the elders to implement armed, self-defence patrols across the village to support the Army, variously called ‘Peace’ or ‘Defence’ committees depending on the area in Swat.  The Nazim (Mayor) of his village was the first chair of their committee. 

    ·His father played an active role in the committee’s development.  When the applicant returned to the village on University breaks he helped his father.  In 2009 he provided information to the Army when they came to his family hujra (guesthouse), regarding a man who lived close by.  That man was subsequently taken into custody.

    ·He completed his studies in 2012 and commenced work full-time in Islamabad.  It is a three hour drive to Swat and he returned to visit his family once a [month].

    ·He was actively involved with his father in campaigning for the 2013 general elections, held on 11 May 2013.  He went door to door promoting the ANP candidates, speaking to people about the importance of retaining the ANP in power.  While nothing happened to him directly, there were reports throughout Swat of ANP campaigners being shot and killed.  Partially because of this intimidation, the ANP suffered a poor result and lost power in Swat.  In 2014 the ANP held a mass protest in Peshawar complaining about the government’s inaction regarding intimidation during the 2013 campaign.

    ·Whenever he returned to [Village 1] he performed [certain duties with] his father.

    ·The threat call of [date] December 2013 was received while he was in Islamabad.  He was deeply disturbed by the call.  When told, his father was adamant he leave the country right away.

    ·He had to prepare for the IELTS test and sit it.  He got the necessary score on [in] March 2014.  He applied for a Student visa for Australia [in] July 2014, which was granted [in] August 2014.  He departed for Australia [in] September 2014, after his Computerised National ID card was issued [in] 2014 (his agent had told him he needed this as a form of identification at the airport). 

    ·He cannot live safely or in peace in [Village 1] or in any other area of Pakistan.  It is impossible for Pashtuns to live in peace and find work in other areas of Pakistan.  There is huge suspicion of and discrimination against Pashtuns in other areas of Pakistan.  Pashtuns have had their ID cards blocked and have been rounded up for questioning by authorities.  It is difficult to get a home and to be trusted by landlords.  His mental condition is such that he does not know how he would cope if he was sent back to a place like Islamabad or Lahore where there are kidnappings, targeted killings, bombings and bloodshed all around.  He does not know how he would function with that fear, when his mind is already burdened.

18. Relevant additional matters from the psychologist’s report of [July] 2018 are summarised as follows:

    ·The psychologist has now seen the applicant on 17 occasions since [January] 2016.

    ·She assesses that ‘[the applicant] suffers Depression’ and that ‘the combined presenting symptoms of Hyper-vigilance, Hyper-arousal and Hyper-avoidance within the framework of experience of real threat to life is consistent with the diagnosis of Post Traumatic Stress Disorder’.

    ·The psychologist is of the view that ‘Without access to mental health support, by professionals or family or trusted peers, [the applicant] is not expected to function well in a risk environment'.

19. Relevant additional matters from the legal submissions dated 12 November 2018 by the applicant’s current representative are summarised as follows:

    ·In her assessment of the applicant’s ‘profile’, the delegate fundamentally misunderstood the nature of Pashtun society and the honour-based codes upon which it operates.  Specifically, the delegate misunderstood that, as the eldest son, the applicant was imputed with the political legacy of his entire paternal family, and was charged with carrying out the political agenda of his father both through the ANP and the Village Defence Committee (VDC).  In this sense their profiles are indistinguishable.  Further, the applicant’s profile needs to be assessed not simply with regard to the past, but also his intended future activities both with the ANP and the VDC.  As his father is ageing, on his return to Swat it would fall to the applicant to take up his father’s mantle, exposing him to harm as a result.

    ·The applicant fears harm in Swat from the Taliban both on account of his actual and imputed political profile as pro-military/Pakistani government and anti-Taliban; and because he is a member of the following particular social groups:

    ­Secular/liberal residents of Swat Valley;

    ­Western educated residents of Swat Valley;

    ­Returnees from Western countries to Swat Valley;

    ­Family members of village elders;

    ­Former/current members of Peace Committees; and

    ­Sons of former NGO workers and known activists against the Taliban.

    ·The representative provides legal argument and cites various country information in support of the applicant’s claims.

    ·In relation to the requirement at s.5J(1)(c) of the Act that the real chance of persecution relates to all areas of the receiving country, the representative refers to guidance in the Department’s Refugee Law Guidelines that decision makers should not only determine whether there is a safe area within the receiving country (where there is not a real chance of persecution) but should also determine whether there is safe and lawful access for the applicant to reach the safe area, taking into account the applicant’s particular circumstances.  The representative submits that the threat posed to the applicant applies across Pakistan as a whole.  In the alternative, she submits that the prevalence of generalised violence and sectarian conflict is such that those areas are not safely accessible to him.

    ·The representative also submits that if s.5J(1)(c) is not satisfied in the applicant’s circumstances, then the applicant would be owed protection under the complementary protection provisions because there is no analogous limitation on the definition of real risk of significant harm for the purposes of s.36(2)(aa). Accordingly, longstanding authorities (Randhawa, SZATZ, MZYLH and MZYQU) regarding the internal relocation principle remain applicable in respect of the s.36(2)(aa) assessment and the Tribunal would be required to consider whether it would be reasonable in the applicant’s particular circumstances for him to relocate outside his home region.

    ·The representative, referring to the reports provided by the applicant’s psychologist, submits that the applicant is a vulnerable and psychologically infirm person who has been receiving continuing psychological care since his arrival in Australia; that the level of mental health care and treatment available in Pakistan is wholly inadequate; and the experience of subjective unsafety and insecurity he would experience would be inimical to the effective treatment of his mental health condition.

1. On 14 November 2018 the representative provided a further submission comprising documents verifying that the applicant’s father has been associating with his local ANP candidate and the ANP [senior official] during the 2018 election campaign; and various news articles from 2014 and 2018 regarding the Taliban presence in Islamabad.[7]

   [7] See folios 99-119 of the Tribunal file.

2. At the hearing on 15 November 2018, the applicant submitted a range of further news articles regarding incidents involving the Taliban in Islamabad, Rawalpindi and Lahore.[8]

   [8] See folios 120-154 of the Tribunal file.

   Findings and reasons

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

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Applicant’s identity

5. 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 ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

   Vulnerability

   [9] See folios 65-84 of the Departmental file.

6. The Tribunal gives weight to the reports by psychologist [of] [July] 2016 and [July] 2018 and accepts her assessment that the applicant suffers from Depression and symptoms consistent with Post-Traumatic Stress Disorder (PTSD).

7. At the hearing the Tribunal asked the applicant if he is currently taking any medication.  He indicated that he takes [an anti-depressant] but had not taken any medication on the morning of the hearing.  He indicated that he continues to see his psychologist about once a month.  The Tribunal advised the applicant that if he needed a break at any time during the hearing to let the Tribunal know.  The applicant engaged with the Tribunal readily and actively and the Tribunal is satisfied that he was able to put his case fully at the hearing.

   Credibility

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.)

13. The Tribunal found the applicant to be a credible witness.  His evidence at the hearing was consistent with his detailed statutory declarations and with independent country information.  At the hearing he engaged with the Tribunal spontaneously and in detail.  The Tribunal accepts his account of his experiences in Pakistan.

    Assessment of claims

14. The applicant claims to fear serious harm from the Taliban and their supporters because of his and his father’s activities in support of the ANP, the VDC and because he is from a prominent and influential family in [Village 1] in the Swat district of Khyber Pakhtunkhwa province which opposes the Taliban.

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

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

    [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 ;

16. Country information indicates that Fazlullah was born and later established a madrassa in Imam Dehri, a small village in Swat [district]. [21]

    [21] [Source deleted].

17. 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 Swat’, Pakistan Today, 17 September 2013, <

18. 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.

19. 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,

20. 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

21. 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.

22. 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

23. The Tribunal considered the following information regarding the ANP from DFAT’s Country Information Report of September 2017:[31]

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

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

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

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

1. The Tribunal also noted 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] 

   [32] ‘Pakistan’s anti-Taliban Party on the Hit List Again’, The Diplomat, 12 July 2018, < type="1">

2. Days later, another bomb attack in Mastung, near Quetta in Balochistan province, targeting a Balochistan Awami Party (BAP) politician at a BAP ‘corner meeting’, claimed 128 lives (with over 200 injured), including that of the politician.[33]

   The applicant’s personal circumstances

   [33] ‘Mastung bombing: 128 dead, over 200 injured in deadliest attack since APS, IS claims responsibility’, Dawn, 13 July 2017, >

   The Tribunal accepts that the applicant belongs to a family that is influential and well known in his home area and which has always played a role in social welfare activities in their local area.  The Tribunal accepts that his grandfather was a Malik in the village and that his father now has this role.  The applicant gave convincing examples at the hearing of disputes that his father had mediated.  The Tribunal also accepts that as the eldest son of his father there are cultural and familial expectations that the applicant will follow in his father’s footsteps.

3. The Tribunal accepts that the applicant’s family have been supporters of the ANP since the party’s inception because their personal values align with the party’s philosophy.  The Tribunal accepts that the applicant’s father, while not an office bearer within the ANP, is a strong and active supporter and is highly regarded within the party for his activities on behalf of the party.  The Tribunal accepts that the applicant’s father played an active role in campaigning for the ANP at elections.  The Tribunal accepts that the applicant joined the PSF when he was at college and that, after leaving Swat to study and for employment, he assisted his father in activities in support of the ANP when he returned home on study breaks and at other opportunities.

4. The Tribunal finds to be consistent with the country information cited above and accepts that in 2008 the applicant’s father was warned on the Taliban’s illegal radio station to cease his work with an NGO and his activities on behalf of the ANP.  The Tribunal accepts that the applicant’s father reluctantly resigned his employment at this time because he accepted that he would be very vulnerable to attack (as his work took him out into the surrounding countryside) if he continued.

5. The Tribunal accepts that in 2008 the Taliban sought to store goods [at] the applicant’s family’s guesthouse.  The Tribunal accepts that the applicant was beaten and threatened that he would be shot if he continued to argue with the Talibs present and that this incident prompted the applicant’s father to send him away to Balochistan to study.

6. The Tribunal accepts the applicant’s claims that his father was actively involved in the peace and restoration process in [Village 1] following the completion of the Army operation in Swat in July 2009, finding this to be entirely consistent with his father’s role as a Malik, village elder and active ANP supporter.  The Tribunal accepts that his father’s role in establishing a local Village Defence Committee (VDC) in [Village 1] would have included liaising with the Army on houses in the village known to be associated with Taliban members and supporters, as well as participating in [other duties].  The Tribunal accepts that the nature of the work done by the applicant’s father with the VDC and the Army, which resulted in suspected Taliban members being detained by the Army (and possibility mistreated and/or killed), and their houses being destroyed, would have brought the applicant’s father to the adverse attention of the Taliban.

7. The applicant had indicated in his statements that he had also been responsible for advising the Army regarding the identity of Taliban supporters and gave an example from when he returned to Swat to visit his family in 2009.  Noting the applicant had been studying in Quetta from 2008 until 2012 the Tribunal queried the applicant about the extent to which he was involved in such activities and the relevant knowledge that he might have of Taliban members and supporters compared to others involved in the VDC who were present in the village full-time.  The applicant acknowledged that there was just one incident, in 2009, when the Army had called at his family’s guest-house inquiring about a particular individual, where the applicant gave the Army information which resulted in that person being detained and subsequently killed by the military.

8. The Tribunal accepts that the applicant’s father has received telephone and written threats from the Taliban as a consequence of his activities both with the VDC and the ANP and that an attempt was made on his life, during which his cousin was killed.  The Tribunal accepts the applicant’s evidence that other extended family members and a friend of his father have been killed because of their anti-Taliban activities.  The Tribunal accepts the applicant’s evidence that it was the issuing of another threat to his father in August 2015 that further traumatised the applicant resulting in him being unable to focus on his studies in Australia.

9. The Tribunal accepts that the applicant was on a university bus in Quetta in June 2012 that was subjected to a bomb attack resulting in four deaths and many injuries and that, while the applicant was unharmed, this incident was extremely traumatising for him.  The Tribunal notes that a BBC News report on this incident comments that most of the passengers on the bus were from the ‘minority Shia Hazara community’ and suggests the motivation for the attack was anti-Shia Hazara sectarian animosity.  While the Tribunal considers that there is nothing to indicate or suggest that the applicant was specifically targeted in this incident, it accepts the applicant’s evidence at the hearing that while there were some members of the Shia Hazara community on the bus, the passengers were from a diverse cross section of backgrounds.

10. The Tribunal accepts that the applicant, while living in Rawalpindi and working in Islamabad [from] December 2012, returned home to [Village 1] on a regular basis and that when he was home he assisted his father.  The Tribunal accepts the applicant’s evidence that this included activities in support of the ANP during the 2013 election campaign, including door to door campaigning.  Noting the country information indicating that there were 37 incidents during the 2013 campaign where ANP members and supporters were targeted, the Tribunal accepts the applicant’s evidence that, while nothing happened to him directly, there were reports throughout Swat of ANP campaigners being shot and killed (and that it was partly due to this level of intimidation that the ANP suffered a poor result and lost power in Swat).  In this regard the applicant drew the Tribunal’s attention to a mass protest held by the ANP in Peshawar in 2014 complaining about government inaction in response to the intimidation suffered by ANP supporters during the 2013 campaign.  A press report in Dawn quotes the ANP General Secretary as stating that over 800 workers of the party had been killed.[34]

    [34] ANP to launch protest campaign against killings’, Dawn, 25 November 2014, >

    The Tribunal accepts that the applicant received a threat call from the Taliban in December 2013 while he was in Islamabad and that this shocked him and made him feel particularly vulnerable, causing him to resign his employment and return home.  The applicant commented at the hearing that in Swat they knew most people and could carry a weapon for personal protection but in Islamabad/Rawalpindi he did not know who he could trust, could not carry a weapon and felt he had no-one to support him.  The Tribunal discussed with the applicant the concerns expressed by the delegate that the delay of over eight months from the time of this incident until his departure from Pakistan, as well as the delay in him applying for protection after arrival in Australia, suggests he did not have a genuine fear of harm at that time.  The applicant explained that he had to prepare for his IELTS test, sit the test and then apply for and wait for his Australian Student visa to be granted, and was also told by his agent that he would need a computerised Pakistan National Identity Card or he could experience difficulties with the airport authorities.  He indicated that his score on the IELTS test was below that required to be accepted into his chosen course without undertaking further English language study in Australia, but he elected to do this rather than remain in Pakistan to re-sit the test to achieve a higher score.  The applicant also indicated that he also applied for employment in [Country 1] and was accepted, but not until after he arrived in Australia.  In the context of his overall evidence the Tribunal is satisfied that the applicant held a genuine fear for his safety and sought to depart Pakistan as soon as he practically could.  The Tribunal is also satisfied that, as the applicant held a Student visa valid until March 2017, no adverse inferences should be drawn from the fact that he did not apply for protection immediately on his arrival in Australia.  As noted above, the Tribunal accepts that it was the news in August 2015 that his father and family had received a further threat from the Taliban that resulted in the applicant being unable to focus on his studies and deciding to apply for a Protection visa in Australia.

11. The Tribunal finds that the applicant’s father’s status as a Malik, his ongoing activities on behalf of the ANP and his ongoing work for the VDC and in support of the Pakistani Army results in him having a strong political profile as an opponent of the Taliban.  While the Tribunal considers that the applicant’s profile, on the basis of his own activities for the ANP and the VDC is lesser than that of his father, the Tribunal accepts the submissions by the applicant’s representative that, in the context of Pashtun culture and as his father’s eldest son, the applicant is also imputed with his father’s political legacy.  The Tribunal accepts that, looking forward to the reasonably foreseeable future and with his father ageing, should the applicant return to Pakistan he would increasingly be expected to take up his father’s mantle in respect of the roles that his father currently undertakes.  The Tribunal accepts the contention that this would be likely to expose the applicant to a greater risk of harm in the future.

    Does the applicant face a real chance of suffering serious harm in the future from the Taliban and/or related groups and/or their allies and supporters?

12. The Tribunal finds the country information indicates 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 VDC members, and that attacks continue to occur targeting ANP officials and members.  While the Tribunal notes the DFAT assessment that ANP members face a low risk of violence from political or militant groups, the Tribunal also notes that this advice predates the 2018 incidents in Peshawar and Mastung and notes DFAT’s comment that restrictions on media reporting capabilities in FATA and Khyber Pakhtunkhwa may mean that some incidents in these areas – particularly those involving low-level officials - are not reported.

13. Considering the relevant country information and considering cumulatively the applicant’s own past activities for the ANP and the [Village 1] VDC, along with his profile as the eldest son of a Malik who is a prominent figure in his home area and is a strong and active ANP supporter and a key member of the local VDC, as well as the applicant’s likely increased and more prominent role in such activities should he return to Pakistan, the Tribunal finds that the applicant would face a real chance of suffering persecution involving serious harm for the reason of his actual and imputed pro-Army and anti-Taliban political opinion should he return to his home in the Swat district of Khyber Pakhtunkhwa. 

14. As required by s.5J(1)(a) the Tribunal has considered whether the real chance of persecution relates to all areas of Pakistan.  In this regard the Tribunal has considered the country information indicating that while Khyber Pakhtunkhwa province is included among areas in Pakistan that experience relatively higher rates of militant and sectarian violence, Punjab province tends to experience fewer incidents than other areas.  In this regard the Tribunal discussed with the applicant advice from the DFAT Country Information Report that there are significant numbers of Pashtuns residing in Lahore, where the security situation tends to be better than other areas and that representatives of the community had told DFAT that Lahore was safer for Pashtuns than other parts of the country.  DFAT also indicated that Islamabad houses a large number of internal migrants from all parts of the country and that there is a large security presence, including checkpoints and patrols by paramilitary Rangers, which provide a strong deterrent to militant groups planning attacks in the capital.  DFAT notes, however, that while large-scale militant attacks in Islamabad are rare, target killings (such as drive-by shootings) of high profile community leaders do occur.[35]

    [35] DFAT Country Information Report, Pakistan, 1 September 2018, sections 5.14-5.17.

15. In response the applicant and his representative stressed press reporting indicating that the Taliban is active across Pakistan including in Lahore and Islamabad and is carrying out attacks in those areas; the strength of Taliban networks across the country and the ability of those networks to identify and report back on ‘new arrivals’ seeking to settle in different areas; his concern about being the victim of a target killing; and the vulnerability of the applicant given his mental health and the challenges he would face finding accommodation and employment, including due to suspicion and hostility of existing residents (including from the established Pashtun community) and authorities towards newcomers from Swat, who are seen as potential terrorists.

16. The Tribunal has considered these matters as well as the representative’s submissions that decision makers must consider whether applicants can safely and lawfully access the relevant area.  In this case the Tribunal considers that the applicant could fly in to Pakistan directly to Islamabad or Lahore and so is satisfied that he could safely reach those areas.  As Article 15 of the Pakistan Constitution guarantees the right of freedom of movement in Pakistan the Tribunal is also satisfied that the applicant could lawfully access these areas.  While the Tribunal accepts the assertions that there remains some risk to the applicant in cities like Lahore and Islamabad, noting that there is not country information indicating that VDC members who have relocated from Swat to Islamabad have been targeted there, and the DFAT advice that target killings in Islamabad are of ‘high profile community leaders’ the Tribunal considers that the applicant would not face a real chance of suffering persecution involving serious harm for one or more of the reasons set out a s.5J(1)(a) of the Act in Islamabad or Lahore. 

17. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a)

    Complementary protection criterion

18. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) in relation to whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan.

19. In considering whether there is a real risk that the applicant will suffer significant harm in these circumstances, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[36] 

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

20. Having regard to its findings of fact set out above, the Tribunal finds that there is a real risk that the applicant would suffer treatment amounting to significant harm, as defined at s.36(2A)(a)-(e) of the Act, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan. In particular, the Tribunal finds that there is a real risk that the applicant will be arbitrarily deprived of his life; and/or will be subjected to torture; and/or will be subjected to cruel or inhuman treatment or punishment; and/or will be subjected to degrading treatment or punishment, by the Taliban or associated militant groups and/or their supporters, should he be returned to Pakistan.

21. In reaching this conclusion the Tribunal has considered the exceptions at s.36(2B) of the Act. In relation to s.36(2B)(a) of the Act the Tribunal finds that in the applicant’s particular circumstances it would not be reasonable, in the sense of practicable, for the applicant to relocate to an area of the country where there would not be a real risk that he would suffer significant harm.

22. As noted above, the Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.  Legal precedent indicates that that 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.[37]  

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

23. 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 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.[38]  The Tribunal finds this advice is consistent with concerns expressed by the applicant.

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

24. The evidence before the Tribunal indicates that the applicant suffers from Depression and symptoms consistent with PTSD.  He has been prescribed anti-depressant medication.  The Tribunal discussed with the applicant at the hearing country information indicating that, while mental health services in Pakistan clearly 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); and medication is easily available.[39]   The applicant responded that before he came to Australia he did not know about treatment for mental health issues or that there were psychologists and psychiatrists.  He said that if such services are available in Pakistan it is difficult to benefit from them when you have ‘fear in the heart’.  He commented that he would be afraid of his own shadow and does not know how he would be able to go out and get treatment and deal with ‘that situation’ again.  This is consistent with the psychologist’s observations in her most recent report that the applicant would be expected to struggle more greatly in coping with risk environments compared to previously and that exposure to incidents such as bomb or gun attacks are most likely to heighten his PTSD symptom, and his ongoing hyper-vigilance would have a negative impact on all areas of his functioning.  The psychologist stresses that safety is critical to effective management of PTSD symptoms.

    [39] European Asylum Support Office (EASO), Country of Origin Information Report, Pakistan, Country Overview, August 2015, type="1">

25. In submissions to the Tribunal it is asserted that the applicant is a vulnerable and psychologically infirm applicant who has been receiving continuing psychological care and that it would not be reasonable to expect him to adjust to life and find accommodation and employment for himself in a place of relocation, where he has no family support and where he would be treated with suspicion and hostility.  The Tribunal accepts these submissions.  The Tribunal accepts the applicant’s evidence that he is able to manage these issues in Australia, in an environment where he feels safe and where he has support from his psychologist, but would not be able to do so in an environment where he would be fearful, unsupported, and unable to access the same level of mental health care as he has been able to access in Australia.  The Tribunal notes that when considering the complementary protection criterion the delegate found that it would be reasonable, in the sense of practicable, for the applicant to relocate to Islamabad.  In reaching this conclusion, however, the delegate does not appear to have given consideration to the applicant’s mental health issues as set out in the first letter from his psychologist of [July] 2017, which was provided to the Department. 

26. 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] 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.  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 real risk of significant harm he faces in Khyber Pakhtunkhwa province.

27. In relation to s.36(2B)(b) of the Act, the Tribunal finds that the applicant could not obtain, from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm. In this case, the harm that the applicant fears from the Taliban and related extremist groups is from non-state agents and the applicant claims that the Pakistani authorities cannot protect him from that harm.

28. 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.[40] 

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

29. 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 applicant could not obtain, from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm.

30. In relation to s.36(2B)(c) of the Act the Tribunal finds that the real risk is one faced by the applicant personally as a consequence of his particular circumstances and is not one faced by the population generally.

    Conclusion – complementary protection ground

31. For the reasons given above, the Tribunal finds that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan. Accordingly, the Tribunal is satisfied that the applicant meets the criterion set out in s.36(2)(aa) of the Act and therefore is a person in respect of whom Australia has protection obligations.

    DECISION

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

    Paul Windsor
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …