1614931 (Refugee)

[2021] AATA 4375

1614931 (Refugee) [2021] AATA 4375 (22 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614931

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Deputy President J.L Redfern PSM

DATE:22 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 September 2021 at 3:05 PM

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – Pakistan – application for protection – applicant fears harm from an alleged member of the Tehrik-e-Taliban Pakistan –educated Sunni Muslim woman of Pashtun ethnicity – genuine fear but Tribunal not satisfied the fear well founded – lengthy period since threats made – consideration of whether serious or significant harm where societal discrimination – not satisfied protection obligations engaged – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

1511103 (Refugee) [2017] AATA 2937
1700696 (Refugee) [2018] AATA 1878
1710719 (Refugee) [2021] AATA 3025
1712801 (Refugee) [2021] AATA 3078
1720890 (Refugee) [2019] AATA 5705
AIE15 v Minister for Immigration and Anor [2018] FCA 610
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

SECONDARY MATERIALS

Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019

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 dependants.

STATEMENT OF DECISION AND REASONS

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 applicants’ protection visas under s.65 of the Migration Act 1958 (the Act).

2. [The first named applicant] was born in [Year] and claims to be a citizen of Pakistan. [The second named applicant] is her husband. The third and fourth named applicants are their two children who are [age range] years old. The first named applicant arrived in Australia [in] January 2012 as a dependant of the second named applicant’s [Student] visa. In October 2012, she lodged an application for a [Student] visa, which was granted on 28 November 2012, and subsequently applied for a protection visa on 6 March 2015. The second, third and fourth named applicants were included in the protection application as secondary applicants.

3. The first named applicant claims to fear harm from a person who lived in her village who she claims was a member of the Tehrik-e-Taliban Pakistan (TTP). She also fears harm from other members or supporters of the TTP who may be associated with the person. On 1 September 2016, the delegate refused to grant the applicants the protection visas, finding that the applicants were not owed protection obligations under ss.36(2)(a) or (aa) of the Act. The applicants applied to the Tribunal for review of this decision on 16 September 2016.

4. The first named applicant appeared before me at a hearing held on 2 December 2020 to give evidence and present arguments in relation to her claims. The second named applicant also appeared and gave evidence. Their children, the third and fourth named applicants, did not participate in the hearing. The applicants were self-represented. They did not need interpreters, nor did they request them other than for their overseas witnesses, because their English was fluent. Written submissions were provided by the applicants after the hearing, which comprised country information, being newspaper articles and reports, in relation to the security situation in Pakistan. I provided the applicants with further country information and gave them the opportunity to present any evidence and argument in response. The first named applicant participated in a second hearing, which was delayed, and conducted by MS Teams remotely on 27 August 2021 between Sydney and Canberra because of COVID-19 restrictions in both locations. The other applicants did not participate.

5. The second, third and fourth named applicants do not make independent claims about protection and are included in the first named applicant’s application as members of the family unit. This is not in dispute and I accept that the other applicants are members of the first named applicant’s family unit. The first named applicant also claims that her family will also be targeted because of their association with her. The claims of the other applicants are therefore dependent on my findings in respect of the first name applicant’s claims for protection.

6. In summary, I am satisfied about many of the claims the first named applicant makes and I am satisfied she has a genuine fear of returning to Pakistan based on experiences that I accept occurred over 11 years ago when she was living in Pakistan. I accept that when she and her husband arrived in Australia in 2012 they were motivated by the fears they had about living in Pakistan at that time. I accept that when the first and second named applicants arrived in Australia they wanted to pursue a pathway to permanent residency through acquiring certain skills in regional Australia rather than seeking protection, but for reasons that are not entirely clear, this did not eventuate and the first named applicant made her application for protection after an initial delay of three years. Despite this delay, I accept she had and continues to have a genuine fear of harm. I also accept that she and her family have lived in Australia for many years and have established significant connections with the Australian community in Canberra. Her children have spent most of their lives in Australia and have been educated here. I accept the first and second named applicants as witnesses of truth.

7. However, there is no discretion available in relation to these matters. The question is whether Australia has protection obligations to the applicants under the refugee criterion or under the complementary protection criterion. This question turns on consideration of the applicants’ circumstances, country information about the prevailing conditions in Pakistan now and into the foreseeable future and whether the applicants face a real chance or real risk of the type of harm that is identified under the legislation as warranting protection. This involves a factual enquiry but also an objective assessment about the risks of something happening in the future. A subjective genuine held fear of harm is the foundation for a claim for protection, but it is the assessment of whether that fear has an objective basis that is generally the determinative factor in cases such as this.

8. Given the passage of time and the paucity of evidence that the person from the first named applicant’s village, or his associates, would or might be a threat to the first named applicant or her family on their return to Pakistan, I am not satisfied that Australia’s protection obligations arise in this case. Nor am I satisfied that there is evidence other members or supporters of the TTP would target or pursue the first named applicant or her family on their return to Pakistan or that she, or the other applicants through their familial connection, face persecution or harm on some other ground either by reason of her profile, characteristics and cultural or ethnic background or by reason of any imputed or actual political opinion. The first named applicant also raises concerns for her children if the family returns to Pakistan. Her children have not lived in Pakistan for many years and she is concerned about violence in Pakistan. However, she could not point to specific claims about the harm her children may face that would engage Australia’s protection obligations.

9. Accordingly, I am not satisfied that the applicants meet the protection criteria and I therefore affirm the decision under review. My reasons follow.

   RELEVANT LAW

10. 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) of the Act. 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.

11. Subsection 36(2)(a) of the Act 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.

12. 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 themselves of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act.

13. Under s.5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.

14. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

15. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

16. For the purposes of s.5J(4), s.5J(5) provides that the following are instances of serious harm: (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.

17. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

18. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

19. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

20. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act (‘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) of the Act, which are extracted in the attachment to this decision.

21. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

22. Subsections 36(2)(b) and (c) of the Act provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) of the Act who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ of another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) of the Act also provides that a ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and dependent child.

23. I am satisfied that the second, third and fourth third named applicants are members of the first named applicant’s family unit.

24. The issue for determination is whether Australia has protection obligations to the applicants. The first named applicant makes claims for protection under the refugee and complementary protection criteria. It is implicit that she also makes these claims on behalf of her family because she is concerned her family may also be harmed because of their association with her. She makes generalised claims about her children and in particular, her daughter. If I am satisfied about the claims made by the first named applicant but not satisfied these claims extend to her family as independent claims for protection, the second, third and fourth named applicants would nonetheless meet the criteria for protection as members of the first named applicant’s family unit.

    Mandatory considerations

25. In accordance with Ministerial Direction No.84,[1] made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department - Procedures Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines’ and Procedures Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines’. The Tribunal must also take into account any relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.

    [1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.

26. The most recent report from DFAT is the Country Information Report for Pakistan dated 20 February 2019 (DFAT Report). I have considered this report, together with other relevant country information, including country information provided by the applicant. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances. My analysis of this country information and any relevant guidelines are set out later in these reasons.

    BACKGROUND AND SUMMARY OF CLAIMS

27. The first named applicant was born in Pakistan in [Year] and is a national of Pakistan. She claims to be a Sunni Muslim by religion, of Pashtun ethnicity. She arrived in Australia as a dependant on the second named applicant’s [Student] visa and applied for a protection visa on 6 March 2015.

28. In the first named applicant’s protection visa application, it is recorded that she fears returning to Pakistan because she is concerned that she and her family will be targeted by the TTP. In brief, the first named applicant is concerned that she will be targeted because of her interactions with a member of the TTP, [Mr A], who will target her and her family because of her role as an educated woman in the local village and his belief that she may have been responsible for reporting him to police. The first named applicant claims that [Mr A] arranged for someone from the TTP to target her and her family when they were living in Islamabad in 2010 and this remains a threat. This is one of the reasons that she and her family travelled to Australia in 2012.

29. According to Departmental records the first named applicant was interviewed by an officer of the Department in July 2015. The interview was recorded, and the Tribunal was provided with a copy of the audio. The delegate included details of the interview in the decision record.

30. The first named applicant’s claims are set out in the decision record of the delegate and can be summarised as follows:

    (1)The first named applicant is from [Village A], in the Swat District of the province previously known as North West Frontier province. She is one of [Number] children. Her father and one of her sisters are deceased. One of her brothers lives in [Country 1] and her mother and other siblings live in the Swat District.

    (2)While the first named applicant was in high school, [Mr A], her next-door neighbour at the time, was an active member of the TTP and was opposed to girls being educated, and prevented his sister from attending school. The first named applicant was close friends with his sister and defended her. [Mr A] would often yell at and abuse the first named applicant while she walked to school, for insulting Pashtun female culture. He slapped her at their local shops one day.

    (3)She enrolled in a college affiliated with [a University] soon after this incident. [Mr A] sent messages to all females in their village that they should always be accompanied by a male outside their homes and that women should wear the burqa. The first named applicant complied with this so she could attend her classes. After completing and obtaining a [Qualification 1] she undertook teaching of [school] students at [Workplace] in Swat. On the night she got the position, some rocks were thrown in her courtyard.

    (4)In her interview, the first named applicant stated that there was animosity between her family and the family of [Mr A] before she was born when a forebear of hers rejected a [A] family member as a suitable husband for his sister. It is also recorded in the decision record that the first named applicant said that she did not know the whereabouts of [Mr A] and he could be in Afghanistan, but she did not believe he had remained living in [Village A] because the army regularly knocked on the door of his family to check if he was there.

    (5)In 2003 to 2006 TTP extremists were taking hold in Swat, forcing people into religious madrasas instead of other schools. The first named applicant cancelled her enrolment in a [Qualification level] at this time. In December 2006, she left her teaching position and in January 2007, she started teaching children from her home as the children were afraid of attending schools.

    (6)[Mr A] and others fired guns and Kalashnikovs in the air at the first named applicant’s home and dragged her brother out of the house and beat him; he had critical injures.

    (7)In 2007, [she] did not feel safe and travelled to the house of her husband’s uncle in Rawalpindi. The first named applicant and her husband moved to Islamabad where both the third and fourth named applicants were born. In 2009 the first named applicant’s mother and siblings were relocated out of Swat under UNHCR arrangements. They have since returned.

    (8)In October 2010, an unregistered vehicle pulled over to where the first named applicant and her husband were sitting outside their home and a man asked if they knew [Mr A]. The man ran off shouting “we will kill you”. She believes her name is on the TTP hit list because they believe that she has given [Mr A]’s name to the army for what he did to her and her brother. She fears if she returns to Pakistan the TTP will kill her and her family as they identified her and her husband in Islamabad. She claims she cannot relocate as the TTP are in every city in Pakistan.

1. The delegate set out the migration history of the applicants. It is noted that the second named applicant arrived in Australia in 2000 on a student visa, then he was granted a temporary medical visa and then a bridging visa. A further application for a student visa was refused in 2004 and, while the second named applicant initially sought a review of this decision by the Migration Review Tribunal, he subsequently departed Australia and withdrew this application. In 2011 the second named applicant applied for a further student visa, with the first, third and fourth named applicants as dependents. The application was refused, and he made a further application, which was granted. The applicants arrived in Australia in 2012 and in October 2012 the first named applicant applied for a student visa, which was granted. This visa was valid until March 2015 but before this date, the first named applicant applied for a protection visa.

2. The delegate outlined the evidence given by the first named applicant in her interview in the decision record. The delegate considered the evidence of identity and accepted that all applicants were who they claimed to be and were nationals of Pakistan. It was accepted that the first named applicant was from the village of [Village A] in Swat and was one of [Number] children. It was also accepted that while living at home and in her teenage years, early adulthood as a student and later as a teacher, the first named applicant’s pursuits in education aroused the animosity of her neighbour, [Mr A], who joined the TTP movement. It was accepted that the first named applicant obtained a [Qualification 1] and that she taught for three years, from 2003 to 2006, in [a workplace] in Swat. The delegate accepted that [Mr A] slapped her outside the local shops while she was a student and injured her brother outside their home in 2007. It was accepted that the first named applicant’s mother and her siblings were displaced in 2009 as UNHCR internally displaced persons but have since returned to their home in Swat. It was also accepted by the delegate that an unknown man stopped outside her apartment in Islamabad in October 2010 and asked if she knew [Mr A]. Relevantly, the delegate accepted that the first named applicant had a generalised fear of harm from the TTP.

3. What the delegate did not accept is that the man who uttered the name of [Mr A] outside the applicant’s apartment in October 2010 threatened to kill her, that the first named applicant fears targeted discriminatory harm from the TTP, that she experienced serious harm in Pakistan for the reasons of her imputed political or religious views or any other reason, that the first named applicant is of interest to [Mr A] and other TTP members or supporters in Pakistan and that she has a profile in Pakistan for her anti-Taliban or pro-female education views.

4. The first named applicant applied for review of this decision to the Tribunal on 16 September 2016 and lodged further documents in support of her application to address various issues raised by the delegate in the decision. The further evidence provided is referred to in more detail later in these reasons.

5. She was invited to attend a directions hearing by telephone on 21 October 2020 to discuss the scheduling of her case for a hearing. As a result of the directions hearing the first named applicant was requested to provide any additional evidence and country information in support of her claims. She was also provided with a copy of the DFAT Country Information Report on Pakistan dated 20 February 2019. The first named applicant provided the Tribunal with a statement from the second named applicant and a list of witnesses on 19 November 2020.

6. On 2 December 2020, the first named applicant gave oral evidence at the hearing before me. The second named applicant also gave oral evidence. It was unnecessary to take further evidence from witnesses who had provided statements. Several of the witnesses’ statements provided related to the applicants’ education and employment or were not relevant to any determinative issues in dispute. I did not take evidence from two persons said to have been witnesses to the incident that occurred in 2010 because I accept the evidence in those statements. I also accept the truth of many of the first and second named applicants’ claims in relation to these matters. As already noted, the first named applicant gave further oral evidence on 27 August 2021.

   OUTLINE OF EVIDENCE

7. The first named applicant provided to the Department information in support of her claims, including an undated written statement outlining her claims as set out above, various media articles and various documents and letters relating to her and her husband’s education and employment, statutory declarations of support from [Mr B], [Mr C] and [Mr D], and a letter of support from the [Union Council] signed by four officials, being school principals or head masters and the President of [an Organisation], Swat. The date of the letter is unclear.

8. [Mr B] is the second named applicant’s father. He states that Pakistan faces a continuous surge of violence and that his son and family would be in extreme danger if they returned to Pakistan from the Taliban. [Mr C] and [Mr D] are the second named applicant’s brothers. [Mr C] stated that when he was in [Village A] in 2009 getting married, one of the villagers told him the Taliban were looking for the first and second named applicants. He stated that he was shocked about this. [Mr D] stated that [Mr C] and his father told him his brother and family were threatened and after October 2010 he and [Mr C] saved money so they could fund the family’s travel to Australia in 2012. [Mr D] was concerned that if the applicants returned to Pakistan, they would face attacks and death threats.  These statutory declarations were dated March 2015.

9. The letter of support from the [Union Council] noted that the first named applicant had been working as a teacher in [Workplace], Swat. There were problems with the Taliban in the Swat Valley at this time and it is stated that the first named applicant had been humiliated and threatened by the Taliban at this time and was forced to teach children privately, and then to move to Islamabad.

10. In addition to the information provided to the Department, the first named applicant provided to the Tribunal documents said to be a ‘first information report’ and related legal documents, translated from Urdu into English, which she claims support her contentions about [Mr A]. She also provided the Tribunal with statements from her husband, mother in law and sister in law and statements from two nationals from Pakistan, [Mr E] and [Mr F], who the first named applicant claims were eyewitnesses to the threatening incident in Islamabad in 2010. The first named applicant provided updated letters of support about her education and letters relating to her children. I will not refer to this evidence in any detail because it is not relevant to the contentious issues.

11. The first named applicant gave evidence to the following effect.

12. She was born in Swat in the province of Khyber Pakhtunkhwa. She has [brothers] and [sisters] but her oldest sister has passed away. Her father passed away in 1998 but her mother is still living. Three of her sisters were not educated, unlike her, and all but one of her sisters is married. Her unmarried younger sister, who is also tertiary educated, lived with her mother who was still alive. They live in Swat. Her mother was supportive of education for women which was unusual in the region.

13. The first named applicant lived in a village in Swat, [Village A], and went to school in her local village. She became friendly with one of the girls in the village who was the sister of [Mr A]. [Mr A] lived in the village. He was a few years older than her and joined the TTP. Whenever he saw her walking to school, he would tell her that she should not go to school. The first named applicant said that she encouraged his sister to go to school, but [Mr A] became angry with this. [Mr A] was a menacing presence in the village and stopped his sister from going to school.

14. Her older brother had a shop in the village and one day he was robbed and attacked in the family home. His arm was broken. The first named applicant said that this was done by local TTP and [Mr A]. The family decided not to go to the police at that stage because they did not believe the police would provide any assistance. The elders in the neighbourhood did not assist. One day when she was travelling back from college, [Mr A] confronted her and slapped her in the face. She went home and did not report this to the police at the time but was shaken by this experience.

15. The first named applicant met her husband, the second named applicant, in 1999. They talked over the phone at the beginning of their relationship but eventually married in 2006. Her husband was very supportive of her studies. He lived overseas for a period and lived and worked in Rawalpindi before they married.

16. She worked as a teacher in a [workplace] between 2003 and 2006 but for a period she needed to work from her home providing private tuition because of animosity to women teachers. She and the second named applicant left Swat in 2007. They had two children, born in [year range]. They moved to Islamabad in 2007 and lived there until June 2012. The first named applicant studied a [Qualification 2], which she was studying online while living in Islamabad. She also said when she was staying at her aunt’s house when she was pregnant, [Mr A] and his associates came to her house and demanded that she be taken to them, and that they beat her brother.

17. In 2010, she and her husband took the children downstairs to play outside in front of their apartment. She and her husband were sitting on a bench in a park nearby. The first named applicant said that a man with a beard approached her husband and said words to the effect, ‘do you know [Mr A]?’. The first named applicant screamed and when other people approached, the man walked away and said, ‘we will kill you’. He walked to a vehicle. The people who came to assist them said that they should go to the police and they would provide statements supporting any complaint that she made. The first named applicant said that she and her husband went to the police station in Islamabad and tried to lodge a complaint, but the police would not allow them to because they were from the Swat region. They were told to lodge any complaint in Swat. After this incident, the applicants went to live at the house of the second named applicant’s uncle in Rawalpindi. However, they were still concerned about whether there would be further retribution by [Mr A] and decided to come to Australia in 2012. Her husband applied for a student visa. They decided that they would not claim protection at that stage and that they would attempt to finish studies so that they could apply for permanent residency through the skilled visa program.

18. The first named applicant said that after this incident she did not hear from [Mr A] or the bearded man again. She also said that when she lived in Islamabad, she had a small balcony in the apartment and when she stood on the balcony, she saw strangers hanging around below who looked like Pashtuns. She had never seen these people before and they threw stones and rocks at her balcony. The first named applicant believed that they were associated with [Mr A].

19. The first named applicant said that her family told her the army were still looking for [Mr A] and his friends and this is why she believes that he is still in hiding. When asked why [Mr A] would wish to harm her after so many years away from Pakistan, the first named applicant said that she believed he would still look for her because he was seeking revenge. She said that he seemed to believe her husband or father-in-law had given his name to the army. The first named applicant said that he would blame her because he would believe she gave this information to her husband or father-in-law and they told the army. She also said that she believed [Mr A] did not like her because she had always gone against the rules and she was educated and friends with his sister. According to the first named applicant, [Mr A] would continue to seek revenge against her because this was a common trait in Pashtun people.

20. The first named applicant said that she was also concerned about returning to Pakistan because of the increasing presence of the TTP. The delegate did not believe her claims or that [Mr A] existed but she had been able to find evidence of charges laid against him in Pakistan in 2012 and she provided English translations of official documents, being first information report and charge documents which she said she obtained with the assistance of her family in Pakistan.

21. According to the first named applicant, she cannot return to Pakistan and she could not live in Islamabad or Rawalpindi. She claims that [Mr A] is very powerful, and he is close to or a part of the TTP. While the first named applicant said that she does not know his position in the TTP, she knew that when he said something to the group of men who followed him in her local village, they followed him. She said that [Mr A] and his group killed two sisters who were teachers in her village because they left home after 9pm and were not wearing burqas but scarves instead. She could not remember when this happened, but this was when she was still living in [Village A]. The first named applicant said that she did not mention this in her statement because she forgot and was nervous and in shock, although I note this was referred to in the interview with the delegate.

22. When asked whether there had been any threats to her family in Swat, she said that [Mr A] came to her family’s house and he and his associates fired guns into the air. He injured one of her brothers, although the first named applicant was not there at the time; she was at her aunt’s house. Because she was pregnant at that time, her family did not want to tell her. The first named applicant said that the Taliban were telling the family that they wanted to take her with them, and they asked her family where she was. One of her sisters told about her about this incident later.

23. When the first named applicant was asked where she would go if she returned to Pakistan, she said that the returning flight would land in Islamabad but after that she would travel to her aunt or uncle’s house in Rawalpindi and that she did not want to think about that situation. It was clear from the evidence of the first named applicant that she did not want to contemplate the issue of whether she would need to return to Pakistan.

24. The second named applicant said that he came to Australia when he was younger because his father was posted here as part of [his employment]. He was granted a student visa when he was [Age] years old and spent three or four years in Australia. He returned to Pakistan and worked for a period before marrying the first named applicant. He then came to Australia on a student visa in 2012 and the first named applicant came with him as a dependant, as did their children. He studied [Subject] for two years and then applied for a further student visa, which was refused. The second named applicant had been granted a student visa but there were concerns for the future of their children and it was decided that the first named applicant should apply for a protection visa.

25. The second named applicant gave evidence about the incident that was claimed to have taken place in 2010. He said that he and the first named applicant were sitting outside their apartment when a man came up to him and said words to the effect ‘do you know [Mr A]?’. After the man said this, the first named applicant panicked and shouted. People then gathered around, and the man then walked back to his car very quickly. He cannot remember much else about this other than he believes the man said, ‘we will kill you’. He thinks that the man had a gun but could not say exactly because he was very shocked and scared by this incident at the time. It happened so quickly. The second named applicant’s uncle came to assist them, and they tried to find the car but could not. He, the first named applicant and their children then went to stay at his uncle’s place but returned to the apartment the following day. They went to the police station but were not allowed to lodge a complaint because they were not from Islamabad but from Swat.

26. According to the second name applicant, he had never met [Mr A] but had heard about him from his wife.

27. After the first named applicant decided to lodge an application for review of the refusal of her protection visa to the Tribunal, they contacted the witnesses and asked them to provide statements, which they did. According to the second named applicant, neither he nor the first named applicant knew the witnesses before the day of the incident but had their contact details, which the witnesses provided to them at the time.

28. Both the first named and second named applicants were asked whether they were aware of any threats made by [Mr A] or his associates to family or witnesses after this incident. Both said that they were not aware of any threats, but the first named applicant said that her family had heard from her former neighbours in the village that [Mr A] was still in hiding.

29. The statements in support provided by the second named applicant’s mother and sister were general statements of support about the situation in Pakistan.

30. The first named applicant also provided to the Tribunal an affidavit from [Mr E], translated into English, dated 23 September 2016 and an affidavit from [Mr F], also translated into English, dated 3 October 2016.

31. According to the affidavit of [Mr E], he saw an incident that occurred involving the first and second named applicants. He heard the first named applicant cry out loudly and when he looked towards them he saw a suspicious man who looked like a Pathan (also known as Pashtun), who ran away and went to sit in a vehicle which did not have a number plate. This man yelled out threats to kill the first and second named applicants. According to the affidavit of [Mr F], he also saw the incident and heard the person threaten to kill the first and second named applicants. He went towards the first and second named applicants and noted that they looked worried. He advised the second named applicant that it would be best if he took his wife and children to stay at a relative’s house.

32. After lodging her application for review with the Tribunal, the first named applicant provided copies of a first information report dated [February] 2012 and related documents dated [March] 2012, said to be from the police station in [Village A], which she said she obtained with assistance from her family. These documents, which are translated into English, are said to be a first information report from the Inspector General Khyber Pakhtunkhwa. The report is said to be from a police station in the district of Swat, which lists the names of persons said to be suspected of being terrorists, including a person called ‘[Given name 1] s/o [Given name 2] r/o [Village A]’ at [Number]. According to the first named applicant, this is a reference to [Mr A] that confirms his existence and that he is a member of the TTP. There are 74 people recorded in this document. A further document was provided dated [March] 2012, which refers to 18 accused. It is not apparent that [Mr A] is referred to in this first information report. There is a further document dated [March] 2012, which is in similar terms to the report dated [February] 2012 listing 74 accused and which refers to ‘[Given name 1] s/o [Given name 2] r/o [Village A]’ at [Number].

33. As already noted, the first named applicant was provided with country information about the role of women in Pakistan prior to the second hearing. She was invited to comment or provide any evidence about whether she would face serious harm if she were to return to Pakistan as an educated woman of Pashtun ethnicity who had lived in Australia for a number of years. I also asked the first named applicant to clarify the current circumstances of her relatives living in Pakistan.

1. She said that her mother was still living in Pakistan in the home that the family had lived in for many years and that her younger sister and her older brother still lived at home with their mother. Her other brother lived in [Country 1], where he has lived for some time. She has three married sisters still living in Pakistan, in towns near the family home. Her younger sister [works] in a town nearby. Her older brother has a wife and [children], who live in the family home with her mother. The second named applicant has an aunt and uncle who live in Rawalpindi. He is currently working [in] Canberra. The first named applicant has worked in [work sector] for approximately seven years.

2. When asked about where she would live if she returned to Pakistan, the first named applicant said she could not return and that she would not return to her home village. She would attempt to move to [Country 1], but did not know how she would do this. The first named applicant said that if she returned Pakistan, the plane would probably land in Islamabad, but when asked whether she would live in Islamabad, she said that she would not. The first named applicant did not indicate where she would live in Pakistan on her return, essentially because she could not contemplate the idea of returning to Pakistan. She said that when she had previously lived in Islamabad she did not work as her children were very young at the time. Both children were born when she and her husband were living in Islamabad. She did not have many friends when she was living in Islamabad. Her husband was [working] in [a workplace] at that time.

3. The first named applicant was asked if she wished to respond to the information contained in the reports provided to her and asked whether she believed she had a profile in Pakistan that would lead to her to being targeted by extremists, including the TTP, or by others.

4. The first named applicant could not point to a particular profile that she may have in Pakistan. She agreed that she did not have any of the vulnerabilities referred to in the country information but said that she believed Pakistan was a dangerous country and that many unknown people had been killed over the years, including Pashtuns. She said that the Pashtuns’ culture was different and was very male dominated, although she did not provide any details about how this would relate to her circumstances.

5. The first named applicant spoke about her fear of returning and it is clear from her evidence that she has a strong and genuine fear that [Mr A] is still alive. This is the source for her fear of harm and persecution in Pakistan. The first named applicant said that she believes [Mr A] will now be emboldened by the rise of the Taliban in Afghanistan and that he will know she has returned if she is sent back to Pakistan. He will seek her out because he is vengeful. She said that he had not made threats to any of her family, and her sister had been able to travel to work in a nearby town. When questioned as to whether there had been any incident recently that would cause her to fear harm, the first named applicant again referred to the incident in 2010 and the incident relating to the robbery of her brother’s shop and the killing of two sisters in the village, which she believed was instigated by [Mr A]. She confirmed that she was not aware of any threats that had been made to her mother, brother and sister or any of her relatives after 2010 but she said that she was the one [Mr A] would seek revenge against because he had never liked her.  

6. The first named applicant believed that she would be able to get a job if she returned to Pakistan, but she said that she would always live in fear of being sought out by [Mr A] and would not be able to work because of this. She was “100% sure” that [Mr A] was alive and that he was simply in hiding. If he was dead or had left Pakistan, she believed that she would know about this because the Pashtun community in Swat is a close community. She would not feel safe and she would not feel that her daughter could be safe if she returned to Pakistan. The first named applicant raised a well-publicised incident that occurred in Pakistan several weeks before the second hearing. The incident involved a young woman who was filming in a busy marketplace in Lahore for Tik-Tok when she was manhandled and stripped naked by a crowd of men. The media reports of this incident confirm that this happened in August 2021, but it is apparent from the reports that the young woman had a high profile on social media and was described as a social media influencer.[2] The first named applicant said that her daughter uses social media and Tik-Tok but when asked about the nature of this profile it was apparent that her daughter did not have a high profile or large following.

   [2] Refer for instance >

   During both hearings, a number of issues were raised with the first named applicant that appeared to be counter to the applicants’ contentions about fear of harm in returning to Pakistan.

7. Firstly, the DFAT Report was provided to the applicants prior to the first hearing. During the first hearing I raised with the first named applicant the country information contained in the DFAT Report to the effect that there was evidence the State had taken greater control in recent years and that the security forces had taken action to provide greater protection and security in Pakistan including action against the Taliban. In short, there was evidence that there had been a reduction in the incidence of violence in recent years. The first named applicant did not accept this and referred to incidents where three people had been killed in Peshawar in October 2020. She also referred to the incidence of sectarian violence in Pakistan. The first named applicant said that she did not want her children to leave Australia to return to Pakistan, which she considered to be a more violent country, because they had a better life and education in Australia. At the end of the first hearing, the applicants were given the opportunity to provide any further country information in support of their claims. Media reports were provided, and an outline of the information contained in these reports is set out below.

8. Secondly, at the second hearing the first named applicant was advised that I accepted her account of what had happened with [Mr A] all those years ago but I was not satisfied on the basis of the evidence provided that he remained a threat to her given the last incident had occurred over 10 years ago and there was no probative evidence, other than her fear, albeit genuine, that he would continue to hold a grudge against her and seek revenge if she returned to Pakistan. The first named applicant said that even though she does not know where he is she believes that he is still in hiding, that he and his group were responsible for killing the sisters in her village when she was still a student, that he had many followers at the time, if he had passed away she would know because of the connections in the village, people have told her not to return and she did not want to give him any chance to harm her.

9. Thirdly, the first named applicant was given the opportunity in the second hearing to raise any concerns that she may have about her profile as an educated Pakistani woman of Pashtun heritage. She did not refer to any particular profile or make any claim in this regard and her key concern was about the potential threat from [Mr A]. She said that women did not have the same opportunities and she had hoped that she would have opportunities in Pakistan and Australia, but this had not materialised, however, she no longer cared about it because her main concern was for her children.

   FINDINGS OF FACT

10. Like the delegate, I accept that there is no dispute about the applicants’ identities. I accept that they are nationals of Pakistan and that the first named applicant was born in the Swat District. I accept that first named applicant is Sunni Muslim and Pashtun. I also accept that she is an educated woman who is likely to have expressed her support for the education of women when she lived in Pakistan and, in particular, in her village of [Village A] in the District of Swat, from early 2000 to 2007, after which time she moved to Islamabad where she lived until about 2012.

11. The first named applicant said she provided further evidence to the Tribunal about [Mr A] because she was concerned her claims had not been accepted by the delegate. The evidence comprised the first information reports referred to above that the first named applicant claims relates to [Mr A] and the statements from third-party witnesses about the incidents said to have taken place in 2010.

12. There is country information set out in the DFAT Report to the effect that document fraud in Pakistan is widespread. A first information report is commonly known as a ‘FIR’. Relevantly, the DFAT Report notes as follows:

    Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect.[3]

    [3] DFAT Report [5.71].

13. DFAT also reports as follows:

    FIRs use standard forms with the relevant information written by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[4]

    [4] Ibid [5.73]. ‘FIR’ is defined in the DFAT Report as ‘First Information Report, an initial written police record of a complaint or reported crime’ at p5.

14. It is therefore apparent from the DFAT Report that documents purporting to be copies of official documents from Pakistan, particularly a first information report, should be treated with caution. The first named applicant provided these documents because she believed they supported her claims about [Mr A] as a terrorist or criminal and a member of, or associated with, the TTP. She was not able to give a clear account of how she obtained these documents or, indeed, why they would be publicly available. Nor was she able to explain what they showed, particularly given there was no independent information as to why the reference to ‘[Given name 1] s/o [Given name 2] r/o [Village A]’ was actually a reference to [Mr A].

15. Notwithstanding this and for the reasons that follow, the provenance of these documents is ultimately not determinative of the critical factual issues in this case. All these documents show is that a person called ‘[Given name 1]’ was charged, together with a large number of other accused, in 2012. Even if I accept that this is a reference to the person called ‘[Mr A]’ who lived in her village and threatened her on numerous occasions, this evidence is of limited probative value in assessing whether the first named applicant faces a real chance of serious harm from [Mr A] or his associates on her return to Pakistan.

16. This is because these documents, if genuine, relate to matters occurring nearly 10 years ago, they do not contain any evidence about [Mr A]’s current whereabouts and whether he would seek to target her. I am prepared to accept that these documents support the first named applicant’s contention that [Mr A] was the subject of police or army scrutiny and was arrested in 2012. This is also consistent with the country information that the Pakistani government has been seeking to disrupt the activities of the TTP from at least 2012.

17. I accept the first named applicant’s claims that there was conflict between her and [Mr A] in their village, as did the delegate. I accept her claim that he joined the TTP and I accept her evidence that she gave before me that he was aggressive to her, slapped her and opposed the efforts that she made to encourage his sister to go to school. I also accept the first named applicant’s claims that [Mr A] may have sought revenge against her in 2010 or, at the very least, to frighten or threaten her through an associate. I accept, as did the delegate, that she and her husband were in Islamabad when they were approached by a stranger. Unlike the delegate, I accept that this person may have threatened to kill them. While the first named applicant could not provide an explanation as to why this should happen so many years after she left her village, this does not mean her evidence should be rejected on this matter. It is to her credit that she did not attempt to construct a story about what may have provoked this.

18. In this regard, I found the evidence of the first and second named applicants to be plausible and consistent. The first named applicant was honest about her surprise and confusion about the threat by a stranger. The fact that she provided affidavits from third parties about the threats also supports this claim, although I note that neither of these witnesses support the contention that the stranger referred to [Mr A]. Those witnesses were available to give evidence before the Tribunal but because of the difficulties involved in taking their evidence and the time available, I considered it unnecessary to do so. Both affidavits were consistent and plausible in their terms. Furthermore, the second named applicant provided a plausible explanation as to how he obtained these affidavits. In short, in the absence of evidence to the contrary, I accept the contents of their affidavits and, on balance, giving the first and second named applicants the benefit of the doubt, I accept this claim.

19. I accept that the first named applicant has genuine fear of [Mr A] and the TTP and more generally if she returns to Pakistan because of the experiences she had before she left Pakistan. I accept many of the claims made by the first named applicant about events that she said occurred from the early 2000s up until 2007 and in 2010. The explanation that she gave as to why she deferred making an application for protection is plausible. In other words, I accept that she and her husband wanted to find an alternative pathway to residency in Australia, that the student pathway was the quickest way to leave Pakistan and that it was not until they were faced with the fear of having to return in 2015 that they decided an application should be made based on her claims.

20. The first named applicant claims that [Mr A] was very powerful within the TTP and therefore she is at risk of harm on her return, the inference being that he has remained a powerful figure within the TTP and will be seeking revenge against her. When the first named applicant was asked to explain this, she said that when she was living in her village, [Mr A] was the leader of the group and his associates did what he asked them to do. This suggests [Mr A] was influential in a village in the Swat region over a number of years in the 2000s, which I am prepared to accept, but it does not follow that he was very powerful within the TTP at that time or, more importantly, that he has any influence or power in the region or in Pakistan more broadly at this time. The first named applicant cannot point to any evidence about [Mr A]’s current whereabouts or his current role in the TTP. The information provided about the criminal action being taken against a number of individuals in 2012 is incomplete and, at best, equivocal, about what has happened to [Mr A]. The first named applicant says that she believes he is in hiding.

21. There is no evidence before me to suggest that the first named applicant has a particular profile in Pakistan as an outspoken advocate or activist for women. Nor does the first named applicant make such a claim. The main contention raised by her relates to the profile that she claims by reason of the acrimony between her and [Mr A] when she lived in her hometown in the Swat District and a more generalised fear of harm arising from incidents of violence across Pakistan and fear of the TTP.

22. I find that if the first named applicant and her family return to Pakistan, they will fly into Islamabad and will either stay there or live in Rawalpindi. They will be questioned but they will not be detained. The first named applicant said she would not return to live in Swat, although I find she would be likely to return there from time to time to visit her family. She also said she would not live in Islamabad and would reside in [Country 1] but there is no evidence that she has the right to reside in [Country 1]. She did not nominate any other city in Pakistan. I accept that the first named applicant cannot contemplate returning to Pakistan or living in Islamabad or Rawalpindi because she does not wish to return but given she and her husband have lived in both these cities for extended periods, this is where they are likely to reside on their return.

23. While the first named applicant did not specifically raise this, it is apparent on the material before me and her broader fears of harm that the first named applicant may seek to make the claim that she has a profile such that would expose her to a real chance of serious harm and therefore persecution if she returns to Pakistan because she is an educated Sunni Muslim woman of Pashtun ethnicity who has lived in a western country for many years and has claimed asylum.

24. As such, a further issue that falls for consideration is whether the first named applicant or her family would be of interest to the TTP or whether she has a profile in Pakistan that may expose her (or any of her family) to the real chance of persecution, either because of previous events that took place in Pakistan, including her pro-education stand, or based on her current profile. Given the fears raised by the applicant about her family and daughter, it is also relevant to consider whether protection obligations may arise in respect of these fears.

25. To answer these questions, it is apt to first consider the available country information on these issues, including country information on the security situation in Pakistan more generally.

    RELEVANT COUNTRY INFORMATION

26. Set out below is an outline of the findings in the DFAT Report that are generally relevant or provide background to the first named applicant’s claims.

27. Pakistan emerged as a Muslim majority state as a result of partition of the Indian subcontinent in August 1947. According to the provisional results of the 2017 national consensus, Muslims comprise 96.28% of the population, of whom approximately 85% to 90% are Sunnis and 10% to 15% are Shi’a. Pakistan is bordered by Iran to the west, Afghanistan to the north-west, China to the north-east, India to the south-east and the Arabian Sea to the south. It has four provinces. Swat is a district in the province of Khyber Pakhtunkhwa. [Village A] is in the Swat valley in the southern region of Swat and is about 240km north-west of Islamabad.

28. Pakistan is a democracy and it is currently governed by the Pakistan Tehreek-e-Insaf (PTI) led by former cricketer, Imran Khan, who is the Prime Minister. DFAT assesses that the lack of economic opportunity is a significant push factor for internal migration to urban centres and for external migration.[5]

    [5] Ibid [2.17].

29. DFAT also notes that:

    Protracted terrorism, vulnerability to natural and human disasters, ethnic and religious tensions, periodic and military interruptions of civilian life undermine stability and serve as significant push factors for both internal relocation and external migration.[6]

    [6] Ibid [2.3].

30. Corruption is said to be widespread and systemic in Pakistan and bribery is said to be prevalent in law enforcement, procurement and provision of public services.[7]

    [7] Ibid [2.18] and [2.19].

31. Pakistan was elected to the UN Human Rights Council in October 2017 for a three-year term and has ratified most international human rights instruments. In May 2015 the government established the National Commission for Human Rights (NCHR) which works independently of government and is directly accountable to the Parliament.[8]

    [8] Ibid [2.56] and [2.58].

1. According to DFAT, the security situation in the area is “complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Afghanistan”.[9]

   [9] Ibid [2.66].

2. DFAT notes that there was a 29% decline in the number of reported terrorist attacks in 2018, compared with the previous year, marking a nine-year downward trend. However, DFAT also notes that Pakistan nevertheless “continues to face security threats from insurgent, separatists and sectarian militant groups”.[10]

   [10] Ibid [2.67].

3. In its report, DFAT states as follows:

   2.69.     The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).

   …

   2.70.     Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218).

   …

   2.72.     The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.[11]

   [11] Ibid p18.

4. DFAT also reports that despite disruption efforts by the government, the TTP and its affiliated networks remain the greatest security threat to Pakistan with the highest overall number of attacks in 2018. The TTP is the largest banned group in Pakistan and is an umbrella organisation for predominantly Pashtun Sunni militant groups.[12]

   [12] Ibid [2.84].

100.   The DFAT Report is over two years old but it is apparent from more recent reports that the security situation in Pakistan has continued to improve although it remains complex with some areas still impacted by violence from militants and insurgents.

101.   According to the 2020 Pakistan Security Report published by the Pak Institute of Peace Studies (PIPS), there has been an ongoing declining trend in the incidence of terrorist violence in Pakistan since 2014. Notably, there was a 36% decrease in the number of terrorist attacks in 2020, with the number of people killed in Pakistan declining by 38%. While it is noted that multiple factors, such as continuous operational and surveillance campaigns by security forces have reduced terrorist violence, PIPS also notes that the threat of terrorism remains as militant and sectarian groups have become active in recent times. PIPS reports that there was a low incidence of violence in Swat in the period, compared to other districts such as North Waziristan and Peshawar.[13] According to PIPS no terrorist attacks were recorded in Islamabad in the reported period.[14]

[13] Ibid p44.

[14] Ibid p20.

102.   PIPS is an independent, not-for-profit non-governmental research and advocacy think tank. According to the report, the information contained in the report is based on data it compiles from sources including newspapers, magazines, journals, field sources and the screening of official records. The report is lengthy and detailed and the sources for the information are referenced in the report or attachments to the report. I found the report to be probative.

103.   According to the Annual Security Report 2020 from the Center for Research in Security Studies (CRSS), Pakistan had lost 600 lives to violence and 518 were wounded by the end of 2020. It is noted that the former Federally Administered Tribal Areas region emerged the worst hit by the violence, while Punjab and Islamabad combined recorded only 8% of total fatalities. It is further noted that 60% of the victims of terror attacks by militants were civilians and 35% were security and government officials. Targeted killings were said to be the major cause of fatalities from violence in 2020 and insurgents as well as militants resorted to targeted killings during the year. It is also reported that civilians were targeted in various settings and that among the dead were tribal elders, football players as well as a student. According to CRSS, the media came under attack, with media personnel or journalists losing their lives to terrorist attacks.[15] There were five reported fatalities in Swat and two reported injuries in 2020.

[15] CRSS p18.

104.   The European Asylum Support Office (EASO) published a country of origin information report headed ‘Pakistan security situation in October 2020’.[16] This report draws on other source information, such as PIPS. Relevantly, it is noted as follows:

[16] 2020_10_EASO_COI_REPORT_Pakistan_Security_Situation_Final (europa.eu).

Muhammad Nawaz Khan, a research officer at the Islamabad Policy Research Institute (IPRI), stated in January 2020 that ‘owing to the increased militancy and subsequent military operations in Swat, South and North Waziristan and other parts of Pakistan, the local residents in the conflict areas –particularly the women and children – have been severely affected by social, mental, physical and psychological trauma and abuse.[17]

[17] Ibid p59.

105.   EASO also reports that the Pakistani state is exercising control over Mingora city and that peace returned to the Swat Valley in 2019.[18] This is consistent with a media article of 19 February 2020 headed ‘Pakistan success story – how Swat valley went from basket case to on the mend’.[19] The media article referred to the fear in the Swat Valley and Mingora, where 15-year-old Malala Yousafzai was shot by the Taliban in 2012, when the Taliban were in control of the region. The article referred to comments made by a principal of Khushal School in 2016 about the fear instilled in students and parents after the attack on Malala and the subsequent Taliban assault on the school. The article noted that the principal said “things were close to back to normal” and that his students were performing well academically. The article further reported as follows:

[18] Ibid p75.

[19] days, all signs of the Taliban have disappeared”, Faruq added. But perhaps not from people’s minds. Swat’s return to normalcy has come at an immense cost to civilians, 2 million of whom were displaced in the military operation. And the operation was by no means perfect. For more than a decade, fragile peace was maintained by heavy military presence until administrative control was handed over to civilian authorities. It was only around two years ago that the military checkpoints that kept a watchful eye on Mingora began closing.

There is still a permanent military base on the outskirts of the city, and the targeted killing of a local politician in December by unidentified gunmen, the first in four years, is a reminder that the security situation is, in some ways, tenuous,

Even so, Swat’s overall trajectory is worth giving thought to, not only because it serves as a case study for how neglected areas can slip into the grip of militancy but also as a blueprint for how they can be restored. In some ways, Swat’s encounter with militancy has mirrored Pakistan’s own. As terrorism has been rooted out of here, it has also receded from the rest of the country. Indeed, the Swat case demonstrates that those parts of the world that are vulnerable to the influence of militant groups require early intervention to stop the disenfranchisement of the local population.

106.   On the issue of State protection, DFAT assesses that “State protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will”.[20] Relevant to the claims made by the applicants, DFAT reports:

[20] DFAT Report [5.1].

5.2.     Despite measures introduced to curb violence across the country under the NAP—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.[21]

[21] Ibid [5.2].

107.   As already noted, in the first hearing, the first and second applicants were referred to country information that was generally to the effect that there had been a decline in terror attacks and greater stability in Pakistan in recent years, including in the Swat Valley and in major cities such as Islamabad.

108.   After this hearing, the applicants provided submissions in support of the claims made. It is submitted that the media of Pakistan was controlled and therefore there were limited media reports on the violence in Pakistan. However, it is also submitted that extremists and unknown individuals are active and regrouping in the Elum Mountains of Tehsil Barikot in the Swat District. It is submitted that extremists were involved in activities such as targeted and honour killings.

109.   The applicants provided media reports said to support these claims. Generally, these media articles either referenced recent targeted killings or attacks or referred to incidents that were reported to have occurred up to 12 years ago.

110.   For instance, according to an article published in February 2020, it is claimed that there was a “fresh wave of targeted killings for members of the peace committees and local journalists in the Swat District”. The applicants provided numerous articles to the effect that journalists in the Swat District were being targeted and needed to be protected. They also provided media articles going back to 2009 about the activities of the TTP in the Swat Valley, reports of ‘targeted’ killings by the TTP in the Swat region in 2010, an article in 2014 referring to the revival of the TTP in the Swat Valley, media reports about the attack on a school in Peshawar in 2014, media reports referring to a gun attack in Quetta in 2013 killing nine people, an attack on the Karachi airport in 2014, a suicide attack near the police headquarters at Lahore in 2013 and a report of the TTP demanding cash from a shopkeeper in October 2016.  The applicants provided a news article published in April 2020 reporting that there were targeted killings of “prominent personalities including lawyers doctors and political and human right activists” and that a number of top police had been suspended, together with an earlier report, published in December 2019 under the heading “Pakistan urged to tackle targeted killings after politician’s slaying”, which also referenced a number of targeted killings of a poet, the chairman of a Shia council and a lawyer who was a member of the jirga tribal assembly in Swat.

111.   The media reports provided by the applicants are generally consistent with the country information contained in the DFAT Report, the UK Home Office report, EASO and the security reports and information set out in the PIPS and CRSS reports. The country information from these reports suggests there has been a decline in terror attacks, although there is evidence that targeted acts of violence have continued in recent years.

112.   Overall, the country information indicates that while there are ongoing incidents of violence across Pakistan, they are generally targeted and there has been greater stability in Pakistan over the past few years. There have been a small number of reported incidents of violence in the Swat Valley and Islamabad. The country information indicates that attacks against civilians are generally targeted towards those with a profile and those in the media. The government has continued to target the TTP, although there is evidence of increasing militancy in certain regions in Pakistan.

113.   DFAT notes that Pashtuns, who are predominantly Sunni but not exclusively, comprise an estimated 15.4% of the population of Pakistan, making them the second largest ethnic group in the country after Punjabis. Pashtuns are identified by their use of the Pashto language and its many dialects. Pashtuns traditionally live among their own tribes although many have migrated to urban areas. According to DFAT, the largest Pashtun communities live in Karachi, which hosts the largest population of Pashtuns in the world, followed by Peshawar. It is also reported that Pashtuns live in Balochistan, Islamabad, Lahore and other urban areas.[22] It is noted that Pashtun culture emphasises tribal and family relations.[23] According to DFAT:

[22] Ibid [3.5].

[23] Ibid [3.4] and [3.5].

Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, and a high concentration of military operations. However, the overall security situation for all Pakistanis, including Pashtuns, has improved in line with increased security across Pakistan.[24]

[24] Ibid [3.7].

114.   DFAT reports that it assesses:

Pashtuns face a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab. Pashtuns in Pashtun majority areas or locations where individuals have family or social connections face a low risk of official discrimination. Pashtuns who are not Turis, or are not linked to the ANP, face a similar risk of violence as other ethnic groups in Pakistan in the same locations (for risk assessments specific to Turis Shi’a Pashtuns and Pashtun ANP supporters, see Turis and Awami National Party (ANP).[25]

[25] Ibid [3.12].

115.   Accordingly, there is evidence of targeting of Pashtuns by security forces, but this is not relevant to the first named or second named applicants. Relevantly, they make no claims along these lines. The key claim raised about this by the first named applicant is her concern that revenge is a strong driver in the Pashtun culture.

116.   On the issue of conditions for women in Pakistan, DFAT reports as follows:

According to the World Economic Forum’s 2017 Global Gender Gap Report, Pakistan ranked 143 out of 144 countries, behind Syria (142) and ahead of Yemen (144), for female economic participation and opportunity, educational attainment, health and survival and political empowerment. Observation of the purdah (literally ‘curtain’, a practice of segregating women from unrelated men) restricts women’s personal, social and economic activities outside the home. Many women in Pakistan live separately from men, particularly from men outside their families, and face significant cultural and legal barriers to access basic rights, freedom and protection. While many women participate actively in society in large urban centres such as Lahore, Karachi or in Islamabad, conservative societies outside urban centres observe purdah rigorously. This has practical implications for travel beyond the home, including for health services or to obtain humanitarian support during conflict.[26]

[26] Ibid [3.199].

117.   And further:

3.214    Militant groups such as the TTP have also attacked women and girls, particularly female teachers and girls attending school, due to ideological opposition to female education. The 2012 shooting of Nobel Peace Laureate Malala Yousafzai while she was travelling on a school bus in Swat was a direct response to a series of media interviews in which she argued that girls had a right to education and condemned the TTP. Attacks on girls’ schools continue, particularly in the former FATA, Khyber Pakhtunkhwa and Balochistan, and a significant attack occurred against 12 schools in Gilgit Baltistan in August 2018.

3.215    DFAT assesses that women and girls who are not from wealthy and prominent families face a high level of official discrimination, in the form of a lack of legislative protection against societal violence and ineffective enforcement of laws that exist. Women face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes.

3.216    DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Women who are economically disadvantaged, culturally or geographically isolated are particularly vulnerable, and lack access to support services.[27]

[27] Ibid [3.214] – [3.216].

118.   According to the report from the Human Rights Commission of Pakistan: The State Of Human Rights in 2019, violence against women in Pakistan, particularly domestic violence, was a continuing problem “stemming from the patriarchal culture”.[28] On the other hand, the government had committed significant funding in 2019 to the Women Empowerment Package to encourage policies promoting the employment of women in the private sector, although it was also reported that a vast number of women had to contend with discrimination and harassment in the workplace. According to the report of the World Bank Group published in February 2018 entitled Female Labour Force Participation in Pakistan: what do we know? female participation in the work in Pakistan doubled between 1992 and 2014. Despite this it is was reported that there were still barriers to female labour force participation, although there was evidence that secondary education had a strong positive effect on urban women’s labour force participation. However, the report concluded that regardless of education level, women have fewer and less diversified occupational choices than men. According to a more recent report from the World Bank Group published in September 2020, Levelling the Playing Field, prevailing social norms do not support women’s involvement in economic activity outside their homes, which continued to have an impact on equality in school enrolment between boys and girls.

[28] Human Rights Commission of Pakistan, State of Human Rights in 2019, April 2020 p44.

119.   The UK Home Office published a country policy and information note, ‘Pakistan: women fearing gender-based violence’, in February 2020. According to the UK Home Office, while women are protected by law, in practice “this is not systemically enforced because of deep-rooted social, cultural and economic barriers and prejudices”. It is further noted as follows:

A woman’s status − and therefore her ability to exercise her social, economic and human rights − varies according to social position in terms of class, religion, education, economic independence, region and local (urban or rural), cultural and traditional values, cast, educational profile, marital status and number of children. Women face direct, cultural and structural violence through a deeply entrenched system of patriarchy in all tiers of public and private life.[29]

[29] UK Home Office country policy and information note, ‘Pakistan: women fearing gender-based violence’, February 2020, at [2.4.1].

120.   It is reported that women in large urban areas such as Lahore, Karachi and Islamabad often can actively participate in society, but it is also noted that there is a level of societal discrimination. However, according to the UK Home Office, this is generally not “sufficiently serious by its nature and repetition that it will reach the high threshold of being persecutory or otherwise inhuman or degrading treatment”, particularly for those women from higher socio-economic backgrounds, and each case must be considered on its facts and may differ according to the woman’s religion or ethnicity.[30] Notably, the UK Home Office identified single women living alone in Pakistan and women facing domestic violence from a spouse or honour crimes from a spouse or family member perpetrated on a woman who has brought ‘dishonour’ to the family to be particularly vulnerable.[31] None of these issues are relevant to the first named applicant’s particular circumstances. In this case, there is no dispute that the first named applicant’s family and, in particular her mother, is supportive of education for women. It is also apparent that the second named applicant is supportive of his wife, her pursuits in education and work and there is no history of domestic violence against women in either of their families. Similarly, there is no evidence, or indeed claims, that these matters would impact the first named applicant’s daughter. While the opportunities available to the first named applicant’s daughter, and also possibly her son, may not be the same in Pakistan is in Australia, this does not of itself engage Australia’s protection obligations.

[30] Ibid [2.4.5].

[31] Ibid p8-11.

121.   In summary, there is country information to the effect that while there is widespread discrimination against women in Pakistan given its patriarchal culture, this alone may not give rise to protection obligations. In contrast, there is compelling country information that women with particular profiles or characteristics may be persecuted by non-state actors where the state is either unwilling or powerless to protect them. This has the potential to expose those women to serious or significant harm. Women who are vulnerable include young or single women without male protection, women in rural areas and living with families where there is a history of violence against women who act outside social conventions or norms and high profile women who are advocates or women who transgress accepted social mores in Pakistan society. Examples of where the Tribunal has accepted claims for protection on these grounds are in 1511103 (Refugee) [2017] AATA 2937 (15 November 2017), 1700696 (Refugee) [2018] AATA 1878 (16 April 2018) and more recently in 1712801 (Refugee) [2021] AATA 3078 (3 June 2021). Against this, the Tribunal has also rejected such claims where the Tribunal was not satisfied on the evidence that the applicant had a profile that would expose them to the potential for harm, such as in 1720890 (Refugee) [2019] AATA 5705 (13 March 2019) and more recently in 1710719 (Refugee) [2021] AATA 3025 (7 June 2021). In other words, it will depend on the facts and the circumstances in each case.

122.   Because the applicants have lived in Australia for so many years, and if they return to Pakistan, they will return as failed asylum seekers, it is also relevant to consider the impact of this on their claims, both as individual and cumulative claims.

123.   According to DFAT, Pakistani citizens require a valid passport to enter or exit Pakistan. The applicants left Pakistan lawfully and on valid passports and as such, there is no evidence, nor is there a claim, that they would be the subject of scrutiny, interrogation or detention by officials on their return. DFAT reports that “those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan”. It is also noted that the government issues genuine returnees with temporary documents when they arrive, although those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from authorities upon arrival. Failed returnees are interviewed, and they are released if their exit was deemed to be legal.

124.   In brief, Pakistani citizens who left Pakistan on valid travel documentation and have not committed any other crimes are typically released “within a couple of hours”. DFAT also reports that returnees are typically able to “reintegrate into Pakistani community without repercussions stemming from their migration attempts” and that they do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate or because of having lived in a Western country.[32] These matters are relevant to the circumstances of the applicants.

[32] DFAT Report [5.33] to [5.45].

CONSIDERATION

125.   The issue in this case is whether Australia has protection obligations to the applicants under the refugee criterion or, in the alternative, under the complementary protection provisions.

Does the first named applicant meet the refugee criterion?

126. A person will be a refugee if he or she has a well-founded fear of persecution and is unable or unwilling to avail himself or herself of protection in the country of their nationality. The fear of persecution must have the relevant nexus with the matters enumerated in s.5J of the Act (being the ‘refugee nexus’) and must be well-founded within the meaning of the section. Those matters enumerated are based on the grounds set out in the Refugee Convention, which has now been codified under the Act.

127.   I am satisfied the first named applicant fears persecution if she returns to Pakistan and that this fear arises by reason of her concerns about a non-state actor, [Mr A], seeking revenge against her, and the Pakistani government failing or being powerless to protect her from harm because [Mr A] is a member of the Taliban. I accept that this fear has the relevant refugee nexus because the foundation for the enmity may be characterised as the first named applicant’s perceived stance against [Mr A] as a member of a particular social group of Pakistani women who do not conform to certain social norms. I am also satisfied that the first named applicant fears persecution if she returns to Pakistan based on her profile as an educated woman who may be identified as a member of a particular social group, being Pakistani women who do not conform to certain social norms in Pakistani society. The first named applicant does not contend that she had a high profile as an activist before leaving Pakistan nor that she currently has such a profile in Pakistan. Her claims principally relate to her interactions with [Mr A] and more general concerns about the TTP and her profile as an educated Pashtun woman.

128.   The determinative issue in this case is whether the first named applicant’s fear is well-founded for the purposes of the definition in s.5J of the Act. Relevantly, the question is whether there is a real chance she will be persecuted if she returns to Pakistan, which must involve serious harm and systemic and discriminatory conduct. As already noted, a real chance is one that is not remote or insubstantial or a far-fetched possibility and must be assessed into the reasonably foreseeable future, not simply at the time of the decision.[33] The risk must relate to all areas of Pakistan. Whether there is a real chance of persecution requires an objective assessment and enquiry about the facts underlying the claims made and consideration of the applicant’s circumstances and the prevailing country information at the time of the decision and into the foreseeable future. While it is relevant to consider past events in determining what may happen in the future, it is also relevant to consider the period of time that has passed since these incidents occurred and the absence of any evidence that would point to potential threats or risks of harm.

[33] AIE15 v Minister for Immigration and Anor [2018] FCA 610 per Perry J at [26] to [28] referring to SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559.

129.   I accept there is evidence that [Mr A] had an interest in targeting the first named applicant over 11 years ago. However, in assessing whether there is a real chance of this happening if the first named applicant was to return to Pakistan, it is relevant to consider whether there is any evidence about [Mr A]’s activities since this time and whether he continues to have an interest in seeking revenge against the first named applicant after so many years. On the first named applicant’s own evidence, many of these events that she claims occurred took place over 14 years ago. It is plausible that [Mr A] may have sought out the first named applicant through an associate to threaten her in 2010, but there is no evidence that further steps were taken after this to pursue her, her husband or her family in Swat. It is also relevant that the first named applicant and her family did not leave for Australia until 2012, which is approximately two years after the incident in Islamabad is alleged to have taken place. According to the first named applicant, neither she, nor her husband and family were threatened in the two years that they remained in Pakistan following the alleged incident of 2010. The second named applicant confirmed that this is the case. There is no evidence of any recent threats made against her or her family members who reside in the region and who have been neighbours to [Mr A]’s family for many years. Notably, the first named applicant cannot point to any threats to her directly or indirectly through her family since the incident in 2010.

130.   Accordingly, even though I accept the first named applicant fears [Mr A] or his associates or members of the TTP will harm her on her return to Pakistan, I am not satisfied that [Mr A] would be pursuing the first named applicant after so many years. There is no evidence to suggest he has a continuing interest in her and I find that the first named applicant’s fears about this are speculative and any potential for harm on this basis, is remote. The only evidence about [Mr A], giving the first named applicant the benefit of the doubt about this, is that he was arrested, together with other extremists, in 2012. There is no further information about him since this time. This is significant given that his family live in the same neighbourhood as the first named applicant’s family. If [Mr A] is still alive, living in Pakistan and still vengeful against the first named applicant, it would be expected that this information would come to light. In short, there has been, at least, nearly 10 years of silence about [Mr A], his whereabouts and his intentions in relation to the first named applicant and her family. I am therefore not satisfied on the available evidence that there is a real chance that the first named applicant or her husband and children will face serious harm on her return to Pakistan through [Mr A] or the TTP on his behalf. Her family have not been threatened in all this time and if, as the first named applicant says, [Mr A] is vengeful because of his character or because he is Pashtun, it would be expected that such threats would have been made. Similarly, there is no evidence of threats by the members or supporters of the TTP since 2010.

131.   The preponderance of country information is to the effect that the Pakistani government has been seeking to establish stability and order and has taken proactive action against insurgents. The first information report, if it in fact refers to [Mr A], would seem to demonstrate that the government has been taking action against insurgents and terrorists for a number of years. [Mr A] may be in prison, he may be dead, or he may have left the country. It is impossible to know and indeed it would be speculative to form any conclusions about this. Any assessments I make must be on the basis of evidence before me and the available evidence suggests that [Mr A] has not been active for many years and has not been pursuing the first named applicant or her family in Pakistan for over 10 years.

132.   The first named applicant has said that on her return she would probably live in Islamabad or Rawalpindi. She did not say that she would return to Swat, because there would be limited employment opportunities for her and her husband in her village.

133.   If the first named applicant and her family return to Pakistan and live and work in Islamabad or Rawalpindi, the prospect of [Mr A] locating them seems even more remote. There is evidence in the country information I have reviewed that the security situation in major cities, and in particular, Islamabad, is stable. This also seems to be the case in relation to Swat, although I accept that returning to live in her village in Swat may have the potential to increase any risks. While the first named applicant did not give evidence about this, I assume that even if she returned to Islamabad, she would return from time to time to visit the rest of her family in Swat. Even if this is the case, I am not satisfied that this would elevate any risk of harm on the basis of targeting by [Mr A] to a ‘real chance’ of harm. This is because I am not satisfied on the available evidence that [Mr A] still lives in or near her village or would be targeting her, especially if he is ‘in hiding’ as the first named applicant believes. The notion that the first named applicant would be targeted on the occasions when she does visit her family would seem to be remote. Any such risk would be dependent on a high level of planning and determination to target a person who has not lived in the Swat Valley for over 14 years, has not lived in Pakistan for nearly 10 years and where the antagonist, [Mr A], has not made any contact with her or her family since 2010. I note the brother of the second named applicant refers to threats relayed to him by third parties in the village about the first and second named applicants in 2009, but these claimed threats were over 11 years ago and there is no claim about any similar threats since this time.

134.   The first named applicant also raised generalised fears based on being an educated woman of Pashtun ethnicity. When she was given the opportunity to provide particulars about these claims at the second hearing, the first named applicant reverted to her fears about [Mr A] and the TTP. The first named applicant is unrepresented, and in these circumstances, my role on merits review is to discern and consider any claim that she may be making, even if it is not clearly articulated. She is concerned that Pakistan is a violent country and that the TTP will become more prominent in Pakistan because of the rise of the Taliban in Afghanistan.

135.   As already outlined, the country information about Pakistan is to the effect that while it is volatile, the Pakistan government have taken steps to secure control and the incidence of violence has decreased in recent years. Whether a returning citizen will face a real chance or risk of harm will depend on their particular circumstances, including whether they have a profile that may expose them to risks of harm.    

136.   There is country information to the effect that women in Pakistan may be vulnerable to the risk of harm if they are single, unprotected by males, there is a history of violence in their family or they have a particular profile of activism or not conforming to social norms, particularly if they live in rural areas.

137.   In this case, and based on the country information, it is not evident that the first named applicant has such a profile that would expose her to a real chance of serious harm. She is an older woman, she is married, there is no history of violence in her family and her husband and family are supportive of her as an educated Pakistani woman. While the first named applicant is educated, there is no evidence that she has or will have on her return a particular profile as a woman who actively opposes or does not conform to social norms in Pakistani society such that she would be targeted. There is no evidence that she was previously targeted when she lived in Pakistan other than through the personal enmity with [Mr A]. According to the first named applicant, while her sister is careful and does not travel late at night by herself, being an educated woman and travelling to [work] in a nearby town in Swat has not exposed her sister to threats or harm. Moreover, there is country information to the effect that this would not be an issue if the first named applicant lived and worked in a larger city, such as Islamabad or Rawalpindi. The first named applicant has said that she would not return to her village and would live in Islamabad or Rawalpindi. She has already lived in both of those cities and has familial connections in Rawalpindi.

138.   According to the country information, there is a level of societal discrimination in Pakistan for women, although there is also evidence that women in large urban areas, including Islamabad, can actively participate in society. The first named applicant was not concerned about obtaining work, her main concerns were about [Mr A] and her general safety as a woman in Pakistan.

139.   If the first named applicant returns to Pakistan, I accept she may face societal discrimination and may not have the same opportunities that she would have if she was working in Australia. I also note that, according to the World Economic Forum’s 2017 Global Gender Gap Report, Pakistan was ranked 143 out of 144 for female economic participation and opportunity, educational attainment, health and survival and political empowerment.[34] However, the first named applicant will return with her husband who is well educated and supportive of her, and he will not suffer such disadvantages, and there is evidence that well educated women living in, for instance, Islamabad, can actively participate in the workforce.

[34] DFAT Report [3.199].

140.   As unpalatable as this may be to an educated woman of the first named applicant’s obvious skills and intellect, the question is whether the type of societal discrimination the first named applicant may face amounts to ‘serious harm’ for the purposes of the refugee criterion. While the UK Home Office does not assess this harm for women who do not have a profile or vulnerabilities as ‘serious’ for the purposes of the protection obligations,[35] I must make my own independent assessment of this.

[35] UK Home Office [2.4.6].

141. As noted, s.5J(5) includes a non-exclusive list of instances that are considered to amount to ‘serious harm’. These instances include a threat to the person’s life or liberty, significant physical harassment or ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, the denial of access to basic services and the denial of the capacity to earn a livelihood where that denial threatens the person’s capacity to subsist. While these examples of serious harm are not exclusive, serious harm must be significant in nature and effect.

142.   The country information is to the effect that a person in similar circumstances as the first named applicant would be able to find employment given her [qualifications]. There is no evidence before me that the first named applicant would be unable to subsist or that she would be physically harassed. There is no evidence before me that she would be denied access to basic services. The first named applicant did not raise concerns about any of these matters and said she would be able to find a job in Islamabad, even though she would not want to work because of her fears. Her key concern was about [Mr A] and safety in Pakistan more generally.

143.   There is no evidence that having lived in a Western country for a number of years and returning as a failed asylum seeker would expose the first named applicant to persecution or harm, nor am I satisfied that there is evidence that the cumulative effect of these matters, namely being an educated Pashtun woman who has lived and been further educated in Australia and has made an unsuccessful claim for protection, would mean that the first named applicant would face a real chance or risk of harm by reason of these matters or at all.

144.   Accordingly, I am not satisfied that the first named applicant would face a real chance of serious harm and therefore persecution on her return to Pakistan.

145. For the reasons given above, I am not satisfied that the first named applicant satisfies the criterion set out in s.36(2)(a) of the Act and that she is a person in respect of whom Australia has protection obligations as a refugee.

Does the first named applicant meet the complementary protection criterion?

146. Having concluded that the first named applicant does not meet the refugee criterion in s.36(2)(a) of the Act, I must consider whether the complementary protection criterion in s.36(2)(aa) of the Act is engaged. The claims made are based on the same grounds as those claimed in respect of the refugee criterion.

147. Protection obligations will arise under s.36(2)(aa) of the Act if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that she will suffer ‘significant harm’.

148.   Significant harm is exhaustively defined in s.36(2A) of the Act. 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. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34). A real risk or a real chance is one that is not remote or insubstantial or a far-fetched possibility.[36]

[36] Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

149.   Having regard to my findings about whether the first named applicant will face a real chance of serious harm if she returns to Pakistan, it follows that I am not satisfied she will face a real risk of significant harm from [Mr A], the TTP or other non-state actors on her return to Pakistan. Furthermore, I am not satisfied that she has a profile that means she will be targeted or harmed by non-state actors. Nor am I satisfied that societal discrimination falls within the definition of ‘significant harm’. This is because I am not satisfied in a case such as this (and having regard to my findings above) that societal discrimination would fall within the exhaustive definition. In other words, I am not satisfied that any societal discrimination would involve arbitrary deprivation of life, torture, or cruel or inhuman treatment or punishment or degrading treatment or punishment in a case such as this.

150. As such, I am not satisfied that there is a real risk that she will suffer significant harm as a necessary and foreseeable consequence of her return to Pakistan. I am therefore not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Other applicants

151. The other applicants have not made independent claims for protection for the purposes of s.36(2)(a) or (aa). However, the first named applicant has made claims on their behalf in that she has raised claims that her spouse and children will be harmed by reason of their association with her. As I am not satisfied that the first named applicant will be targeted and harmed, either by reason of the refugee criterion or the complementary protection criterion, it follows that I am not satisfied that her family will be targeted and harmed.

152.   I have considered whether any independent claim is made in respect of the first named applicant’s daughter, but there is no evidence before me to suggest that her daughter will have a particular profile that would expose her to serious or significant harm. She is a young woman who has spent many years in a Western country. Like many young women in Australia, she uses social media but there is no suggestion from the first named applicant that her daughter has a high profile in this regard or that there are any particular issues that may draw attention to her daughter if the family returns to Pakistan.

153. While I am satisfied that the other applicants are the spouse and children of the first named applicant and, as such, are members of the same family unit as the first named applicant for the purposes of ss.36(2)(b) and(c) the Act, I am not satisfied that she satisfies the criterion in ss.36(2)(a) or (aa). It follows that those applicants are unable to satisfy the criterion set out in ss.36(2)(b) or (c) and cannot be granted the visa.

Conclusion

154. For the reasons given above, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa, or relevantly, ss.36(2)(b) or (c).

155.   Where a negative decision is made by the Tribunal, it is possible for unsuccessful applicants to make a request for Ministerial Intervention under s.417 of the Act if there are unique or exceptional circumstances. By definition, these applications are granted in a small number of cases but there are aspects of this case that may warrant such an application.      

DECISION

156.   The Tribunal affirms the decision not to grant the applicants protection visas.

J.L Redfern PSM
Deputy President

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.

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5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

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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 the 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.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

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