1618713 (Refugee)

[2018] AATA 913

1618713 (Refugee) [2018] AATA 913 (23 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618713

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Paul Windsor

DATE:23 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 February 2018 at 1:26pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Political opinion – Opposition to the Taliban – Opposition to the Pakistan Army – Awami National Party – Returnees from the West – Fear of killing – Fear of torture – State protection – Internal relocation

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa [in] July 2012 and the delegate refused to grant the visa [in] September 2013.

3. The applicant applied to the Refugee Review Tribunal (RRT) for review of this decision on 9 September 2013.  The RRT affirmed the decision not to grant the applicant a Protection visa on 30 June 2014.

4. The applicant sought judicial review of this decision [in] July 2014.  [In] October 2016 the Federal Circuit Court of Australia (FCCA) remitted the application to the Tribunal.[1]  The FCCA found that the first Tribunal erred because the phrase ‘for the reasons set out above’, referring to reasons claims to Convention-based protection were rejected, was used to reject claims to complementary protection, notwithstanding different criteria applied to each claim and no separate differentiation was used by the Tribunal when rejecting both claims.  The FCCA found that ‘ground 3’ of the applicant’s complaint was also made out because ‘in the last sentence of paragraph 49 of its reasons’ (relating to whether the applicant wanted to organise a protest against the army in December 2010) the Tribunal made a factual finding (that the applicant was the protest organiser) ‘that was not supported by the evidence and was one in respect of which no prior notice had been given to the applicant’.

   [1] [Deleted.]

5. The applicant appeared before the Tribunal on 10 August 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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

   CRITERIA FOR A PROTECTION VISA

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

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

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

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant claims to be a citizen of Pakistan who was born in [Town 1] in the Swat district of Khyber Pakhtunkhwa (KP) province, Pakistan on [date].  He states he is of Pashtun ethnicity, the Sunni-Islam religion, and that he speaks, reads and writes Pashtu, Urdu and English.  He indicates he married in Swat Pakistan on [date] and his wife and [children] are residing in Pakistan.  The applicant indicates he departed Pakistan legally in June 2011 on a ship as a crew member and arrived in Australia [in] March 2012.  He indicates that he deserted his ship in Australia.[2]

    [2] See folios 6-16 and 19-33 of Departmental file [number].

    Summary of claims from the Protection visa application

13. The applicant’s claims from his Protection visa application lodged [in] July 2012 are summarised as follows:[3]

    ·He left Pakistan because he faced persecution from the Taliban and the Pakistan authorities.  He fears harm from the Taliban, the Pakistan authorities including the Pakistan Army, and from members of his extended family.

    ·This is because he is regarded as opposed to the Taliban and the Pakistan Army.  The family of one of his cousins also hold him and another cousin responsible for the death of his cousin, who was killed by the Army.

    ·He has been assaulted by the Taliban and has received threats against his life.  Members of his extended family and some of his friends have been killed and his wife has been badly assaulted.  He fears he will be severely injured or killed if he returns to Pakistan.

    He does not think the authorities can protect him because he has been targeted by the authorities and because they are connected to the Taliban.

    [3] See folios 24-27 of Departmental file [number].

14. On [a date in] September 2012 the applicant’s then representative forwarded to the Department a statutory declaration of [September] 2012 by the applicant and supporting documents.[4]  Key additional matters raised in the statutory declaration are summarised as follows:

    [4] See folios 69-83 of Departmental file [number].

    ·The applicant’s [cousin], [Relative A], was [an official] of the Awami National Party (ANP) in Swat.  The applicant and the rest of his family also support the ANP but were not actively involved like [Relative A] was.  His father, who worked as [an occupation] until 2011, became friends with [Mr B], [a representative] of [an agency], who left [that agency] and became [an official] of the ANP in Karachi.

    ·In around 2003 the applicant started working as a crew member on international ships.  He went out on ships on [number] occasions, and would be away for at least 10 months at a time.

    ·In August 2008, after he had returned from sea, he was in a group including [Relative A] at the bazaar who were approached by the Taliban and accused of being un-Islamic because he had a [business] and for watching movies, drinking alcohol and watching female performers.  They were told they should join with the Taliban.  They were assaulted when they refused.

    ·[Relative A] would talk openly about how he thought the Taliban and the army were working together.

    ·[In] August 2008, the Taliban came looking for him and [Relative A].  [Relative A] was shot and killed and he was told to tell the village as a warning.

    ·Despite [Relative A] being killed, another [cousin], [Relative C], who was only [age] years old, was persuaded to join the Taliban.

    ·In early 2009, he and another cousin, [Relative D], convinced [Relative C] to surrender to the army, as the village council had started working with the army and assured the community that those who surrendered would not be harmed.  [Relative C’s] family agreed he should surrender.  The applicant received a threatening letter from the Taliban accusing him of being a spy so he left the area and went to [Town 2] for a month or so before going to Karachi and then going to sea again.

    ·He was on a vessel [involved in an accident].  He returned to Swat to be with his family to recover from the trauma of the accident.

    ·In April 2010, the army shot and killed [Relative C] and [several] others in their custody and dumped their bodies.  He and [Relative D] concluded the only explanation was that the army were working with the Taliban.  The army commander denied this and said there would be a full investigation.  [Relative C’s] [family] blamed them for his death.  He and [Relative D] spoke openly accusing the army of providing support to the Taliban.

    ·In December 2010 the army dumped more bodies of people from the area.  The next day he and many people protested.  The day after the protest [a number] of his friends were arrested.  In February 2011 he found out they were all killed.  He heard of the arrests from another friend’s father so left the village the same day and went to Karachi where he stayed with [Mr B].  While there his father phoned and told him the day after he left the village the army came to his house looking for him, and hit his pregnant wife who lost the baby and was in hospital.

    ·[Mr B] told the applicant he would talk to the authorities and arrange protection for him.  He undertook another voyage.  In January, when his ship stopped-over in [Country 1], he heard that [Mr B] had been killed.  He decided to leave his ship in Australia because he knew it would not be safe to return to Pakistan.

    ·His father and brother have told him that the army has dumped more bodies near their house.

    ·He has also seen footage of members of the army and Taliban meeting in Swat, which strongly indicates the army have been working closely with the Taliban.

15. The applicant attended an interview with the delegate [in] November 2012 (the Tribunal has listened to a recording of this interview) and the delegate refused the application [in] September 2013.  The delegate accepted that the applicant is from Swat and is of Pashtun ethnicity; he was a seaman who was on-board [a ship involved in an accident]; he may hold anti-Taliban views; and that he supported the ANP.  The delegate found, however, that the applicant’s political profile was relatively minor and highly localised and did not accept that he was beaten or threatened by the Taliban or that he was of interest to the Army.  In reaching these conclusions the delegate noted that the applicant had not claimed he was ever a member of the ANP; had spent a significant part of the last [number of] years at sea; had indicated that he felt safe at one time due to the Army’s presence in swat; his family had continued to reside in Swat; he did not seek protection on previous visits to Australia or when he visited [Country 1]; and he delayed seeking protection for four months after deserting his ship in March 2012.

16. Following lodgement of the review application, on 21 March 2014 the applicant’s then representative submitted a further statutory declaration made by the applicant on 20 March 2014, a letter from a psychologist dated [in] March 2014, and a submission in support of the applicant’s claims for protection.[5]

    [5] See folios 44-65 of Tribunal file1313326

17. Relevant additional material from the applicant’s statutory declaration of 20 March 2014 is summarised as follows:

    ·He was actually a member of the ANP.  He became involved in 1998 when he went to college.  He was a normal member while [Relative A] was a position holder.  He worked closely with [Relative A] and assisted him in his activities as [an official].  He did this when he was working as a [specified role] and had the time to help out.  He supports the ideas of the ANP.

    ·He believes that the Taliban did not kill him when they killed [Relative A] because they were trying to warn them to stop their activities.

    ·He returned to Swat after his ship [encountered the serious accident] because he was traumatised and wanted to be with his family.  While he was frightened for his safety he also believed the Army and local people were protecting the area from the Taliban.

    ·His brother cannot attend school anymore.  He moves around, staying with different people.

    ·His cousin [Relative D] fled to [another country].

    ·Even though it is not safe in Swat there is nowhere else in Pakistan his family can go.  They cannot afford to move, it is not safe in places such as Karachi and they cannot move to Punjab due to their ethnicity.

    ·If he returns Taliban supporters in his village will recognise him and target him, regardless of how long he has been away.  Because of their network the Taliban would be able to find him as soon as he enters the country and anywhere he went in Pakistan.

    ·He did not apply for protection immediately on arrival in Australia in March 2012 because he was worried about the impact it might have on his family in Pakistan.  He applied in July 2012 after he made friends with some people in [his local area] who advised him to apply.

18. The psychologist’s report indicates that the applicant has attended 4 counselling sessions since [March] 2014 after being referred by a doctor for chronic anxiety, depression and Post Traumatic Stress Disorder (PTSD).  The psychologist reports that the applicant’s doctor has prescribed medication for depression and anxiety and the applicant is receiving cognitive behavioural therapy for his anxiety and PTSD.

19. In her submission the applicant’s representative requests that the applicant be treated as a vulnerable person. 

20. The representative states that the applicant fears persecution by members of the Taliban, extremist groups and the Pakistani Army on account of his actual and imputed political opinion; his religion (as a liberal Sunni Muslim); and his membership of the following particular social groups:

    ·Liberal/Westernised young men;

    ·Family members of people involved with the ANP;

    ·Returnees from a Western country; and/or

    ·Failed asylum seekers returning from a Western country.

21. The representative cited a range of country information including regarding Taliban activities in Pakistan; sectarian attacks; counter-terrorism abuses; targeting of ANP supporters; and Pakistani Army operations in KP since 2009.

22. In relation to the complementary protection criterion the representative also submitted that, if removed from Australia to Pakistan, there is a real risk that the applicant would be subjected to significant harm, including arbitrary deprivation of life; and/or torture; and/or cruel or inhuman treatment or punishment; and/or degrading treatment or punishment, at the hands of Sunni extremists and the Pakistani Army.

23. Following the FCCA remittal to the AAT of the MRT decision of 30 June 2014 affirming the delegate’s decision, the Tribunal (differently constituted) wrote to the applicant on 6 July 2017 inviting the applicant to attend a hearing on 10 August 2017.

    Pre-hearing submissions

24. On 8 August 2017 the applicant’s current representative submitted further supporting material including a further statutory declaration by the applicant, declared on 8 August 2017; an updated psychologist’s report; supporting letters; a petition regarding the claimed protest in December 2010 against the killing of innocent people by the Army; and a media report regarding the death of [an official] in January 2012.[6]

    [6] See folios 27-40 of Tribunal file 1618713.

25. Relevant additional material from the applicant’s statutory declaration of 8 August 2017 is summarised as follows:

    ·His father secured his first deployment as a seaman by referring the applicant to [Mr B] in Karachi.  The applicant visited [Mr B] in his home whenever he was in Karachi.

    ·When [Relative A] became a local [official] of the ANP in 2000 the applicant assisted him with his activities on a regular basis.  Because of their hard work, the ANP won the local elections in 2001 and in 2005 in [Town 1].  He never claimed to have assisted in the lead up to the 2008 elections given he was absent between August 2007 and 2008.

    ·After [Relative A] was shot he ran and hid in the village.

    ·When he returned to Swat in August 2008 much had changed as a result of the Taliban having gained control.  He was very afraid for his and his family’s safety but was confused as to what he could do.  Despite being terrified he tried to keep a low profile and to protect his family.

    ·The Tribunal did not accept that the Taliban sent him a threat letter in April 2009 accusing him of spying for the army because a lot of militants surrendered at that time.  However, as far as he knows, [Relative C] was the first to surrender in his area.  It is also the case that many houses of militants who surrendered received similar letters and he knows such people who fled or were killed.

    ·He fled by foot to [Town 3] then by minivan to [another location] and then to Karachi a month later.  His family left for [Town 2] when the mass displacement started in May 2009, returning to Swat only after he commenced his next deployment at sea in September 2009.

    ·[Relative C’s] [family] fought with him many times and threatened him on many occasions after his death.  He thinks there may be a threat to his children, particularly from these [cousins] as his father now takes them to school rather than his brother.

    ·The applicant and three others approached one of the elders of the local Peace Committee.  The elder arranged for them to meet with the Army.  The elder spoke most of the time but occasionally the applicant spoke.  He became emotional and agitated and said to the army officers directly ‘we know you are responsible’.  The Army said they would investigate but nothing came of that.

    ·When the army dumped a second set of bodies in December 2010 they decided the best way to gather people and get the Army’s attention was to organise at the [town centre,] the busiest place in the village, where the buses stop.  He and his friend [named], whose brother he had surrendered to the army and remained in army custody, were the loudest.  They yelled and chanted against the Army, the crowd grew, and people began to join in chanting ‘down with the Army’.  He estimates [a large number] people were there and while some were not participating it was a mass gathering.  He was well-known in the village because of his work with [Relative A] lobbying people to support the ANP.

    ·They told people that they were calling a protest the next day and would make announcements using the loud speaker systems of both major Masjids in the village.

    ·That night, the houses of his friends were raided.  He was warned and fled on foot to [Town 3] and then took a local taxi to [a town] from where he caught a bus to the house of [Mr B] in Karachi.  His father called him the next day to say that his wife lost her unborn baby when beaten by Army officers who came to his home looking for him.

    ·His brother left the village in March 2017 after he was detained by the army and asked about the applicant’s whereabouts.  His father and village elders demanded his brother be released.  Shortly afterwards his brother was shot at while walking along the street at night.  His family tell him they don’t know where his brother is.

    ·He would continue his political activities and would continue to speak out against injustices if he returned to Pakistan.  He attended a protest in [Australia].

1. On 9 August 2017 the applicant’s representative made further legal submissions.  She requested that the applicant’s vulnerability due to his poor mental health be taken into account at the hearing.  The representative indicated that in his most recent statutory declaration the applicant has responded to adverse findings by the first Tribunal and she provided legal argument addressing the applicant’s claims in line with the Refugees Convention, commenting that, as the convention nexus is clear, she has not addressed his claims in line with the complementary protection provisions.  The submissions also discuss country information regarding the Taliban in Swat and the Pakistani Army in Swat.[7]

   [7] See folios 41-58 of Tribunal file 1618713.

   Evidence from the hearing of 10 August 2017

2. Additional matters raised at the hearing are summarised as follows:

   ·The applicant is not sure where his brother is at the moment but he is not at home.  His family will not tell him.   He is not sure why the army would have asked his brother about him 6 years after he left, but they have computers at the checkpoints now which would list family members.

   ·When he was in college he was active with the Pakhtoon Student Federation (PSF), which is affiliated with the ANP, for two years.  After that he started being involved in ANP activities.  He was very close with his [Relative A], who became the local ANP [official] in 2000.  [Relative A’s] district comprised his village and two smaller neighbouring villages.

   ·The Taliban members who came to [Relative A’s] [house] in August 2008 knew who they were through their political activities.  The Taliban was always opposed to the ANP.

   ·While he remained in the village for 8 months after [Relative A] was killed he was in hiding at home.

   ·[Relative A] used to say to him that the Army and the Taliban are working together.  Historically Pakistan took money from the US to train mujahedeen to fight the Russians in Afghanistan and most Taliban commanders are from that war.  The Army has allowed the Taliban commanders to escape to Waziristan even though the Army has posts in the mountains and helicopters and can see who is entering and leaving the district.  The Army try to show they are acting, to get money from the West, but they have a hand in allowing the commanders to escape.

   ·While he initially thought the Army and local militia were protecting the people from the Taliban, after the Army started dumping bodies of those who had surrendered it changed peoples’ views.  The Army also began entering people’ homes without warrants or permission, like the Taliban used to do.

   ·While the Army commander said he would investigate when they met with him after [Relative C’s] body was dumped, nothing ever happened.  It was just an excuse to get rid of them as he knew the Army had killed [Relative C] and the others whose bodies were dumped.

   ·When more bodies were found in December 2010 he and [his] friends chose to protest in the main bazaar where it is busy and there are a lot of people.  They got such a positive response they decided they would hold a bigger protest the next day.

   ·Bodies are still being dumped.  Around Ramadhan the body of a person from the village was found.  Where the Army is responsible these matters do not appear in the news unless the human rights people find out about it.  The journalist Hamid Mir who was critical of Pakistan’s Inter-Services Intelligence (ISI) agency and the Army was shot at and injured in 2014 and fled to England.

   ·He has tried to stay away from [Relative C’s] family but once when he came across them they threatened him.  He believes they will wait for an opportunity to harm him.

   Post-Hearing submissions

3. On 5 September 2017 the applicant’s representative provided further submissions in response to matters raised at the hearing of 10 August 2017.[8]  Relevant additional matters raised are summarised as follows:

   ·The supporting letter from [Mr E] (MPA for [specified area]) provides clear indication of the applicant’s affiliation with the ANP and must be taken as evidence that he was a supporter and proponent of the ANP and that his views in this regard informed his later political actions against the Army.

   ·The applicant suspects that it was [Relative A’s] position with the ANP that exposed [Relative A] to close monitoring by Taliban members and led to [Relative A’s] home being raided [in] August 2008.

   ·[Relative C’s] surrender, being the first in [Town 1], was of particular importance to the Taliban, which in turn made the applicant a particular target.

   ·[Relative C’s] surrender occurred in April 2009 and by May 2009 Swat was heavily militarised with active hostilities.  In this context the Taliban would have had limited operational capacity to carry out their threats against opponents in the region, including the applicant.

   [8] See folios 59-66 of Tribunal file 1618713.

4. The representative, citing a range of reports, submits that country information bears out continuing abuses by the Pakistani Army in Swat.

5. On 15 February 2018 the representative referred the Tribunal to video footage [of] a rally in [Australia] on [date].  The representative submitted this highlights the applicant’s ongoing political activities and involvement and ‘bodes towards his likely future activities on return to Pakistan’.[9]

   [9] See folio 69 of Tribunal file 1618713.

   Findings and reasons

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

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

   Applicant’s identity

8. On the basis of the copies of the applicant’s Pakistani passport and Seaman’s Service Book provided to the Department[10], and noting the delegate’s findings in this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be.  The Tribunal accepts that Pakistan is the applicant’s country of nationality for convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

   Vulnerability

   [10] See folios 34-35 of Departmental file [Number].

9. The Tribunal has had regard to the psychologist’s reports of [March 2014] and [August] 2017 stating that the applicant was referred by his doctor for chronic anxiety, depression and symptoms consistent with PTSD and that he is taking anti-depressant medication on a daily basis.  The Tribunal also has had regard to the representative’s submissions that he should be treated as a vulnerable person in accordance with relevant Tribunal guidelines.  Having listened to the applicant’s interview with the delegate and the hearing with the first Tribunal, the Tribunal is satisfied that the applicant’s ability to understand and present his case was not impeded by his mental health issues.

   Credibility

10. Having listened to the applicant’s account at the interview with the delegate and at the hearing with the first Tribunal, the Tribunal considers that overall the applicant is a credible witness.  The Tribunal found the applicant has given a consistent account of the core aspects of his claims over the course of the consideration of his Protection visa application, while progressively providing more information regarding key incidents in response to questioning and queries.  While the Tribunal finds, as noted below, that on occasions the applicant has exaggerated his circumstances, the Tribunal also finds that the applicant was spontaneous, passionate and knowledgeable of the circumstances in Swat when giving evidence.

    Assessment of claims

11. In essence the applicant claims to fear serious harm from the Tehreek-e-Taliban (TTP) and the Pakistan Army due to his actual and imputed political opinion of opposition to the Taliban and to the modus operandi of the Army.  He claims his activities on behalf of the ANP, his engagement in activities the Taliban considers to be ‘un-Islamic’, and his activities which led to his [Relative C] leaving the Taliban and surrendering to the Army contribute to his profile as someone opposed to the Taliban.  He claims his involvement in protests against the Army’s activities in killing and dumping the bodies of people it had detained gives rise to his profile as someone opposed to the Army.  The applicant also claims that he is at risk of significant harm from family members of his [Relative C] who view him as responsible for [Relative C’s] death.  The applicant submits that having spent significant time in the West increases the risks he faces as he will be seen as pro-Western/liberal and his return will arouse interest and bring him to attention.  In this regard his representative commented at the hearing that it is not claimed that the applicant will suffer harm solely due to having spent a long time in the West but that is one of the factors which would mark him out as different and hence needs to be considered cumulatively.

    Background - the conflict in Swat

12. The Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989.[11] Maulana Fazlullah assumed control of the TNSM in 2001[12] and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands.[13]  When Tehreek-e Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007, Fazlullah was named emir (leader) of the Swat Taliban.  Although the TTP and TNSM were not operationally linked, they were allied and TNSM militants in Swat were also referred to as the Swat Taliban.

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

    [12] Ibid.

    [13] Ibid; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November

13. The TNSM attacked targets in Swat which it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, and artists[14] and used beheadings to advertise its strength.[15]  The KP Provincial Government entered into a number of ceasefire agreements with the TSNM from 1994[16] however, these did not lead to a lasting peace and the TNSM gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence[17] and displacement of the local population.[18]  Fazlullah effectively set up a parallel government in Swat in 2007, controlling the area until 2009 when he and his group were defeated by an army offensive.[19]  The army offensive against the Taliban in Swat commenced in May 2009.  During that time the military is reported to have sent 15,000 troops into Swat to confront about 4000 Taliban militants.  Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people in the month after the offensive commenced.[20]

    Claimed ANP activities

    [14] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28

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

    [16] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York

    [17] Ibid.

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

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

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

14. The ANP is a liberal, progressive, secular Pashtun party which held government in KP between 2008 and 2013.  ANP leaders and officials have been targeted by militants because of the ANP’s secular nature and anti-Taliban stance.[21]  In 2016 DFAT advised that Taliban militants have attacked ANP members because of the ANP’s support for counter-insurgency operations in FATA and KP.  DFAT comments that this violence is decreasing, however, with only two militant attacks on ANP members from January-October 2015: an ANP leader killed in a gun attack in Charsadda district and an ANP district councillor killed in an improvised explosive device attack in Hangu district.  DFAT assesses that ANP members are subject to a low and declining level of militant violence in KP and Karachi but comments that although these attacks primarily target high-level leaders, low-level party members have also been subjected to violence.[22]  DFAT indicated in its 2017 Country Information Report that militants killed an ANP leader in Swat in April 2016, commenting that reports of such incidents have been increasingly rare in recent years due to the improving security situation and the ANP’s declining political influence in KP.  DFAT noted, however, that restrictions on media reporting capabilities in FATA and KP may mean some incidents in these areas – particularly those involving low-level officials – are not reported.[23]

    [21] Roggio, B. 2012, ‘Suicide bomber kills 15 at funeral in Peshawar’, Long War Journal, 11 March Pak Institute For Peace Studies 2011, Pakistan Security Report 2010, PIPS website, January; Tavernise, S. & Shah, P. Z. 2010, ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April

    [22] DFAT, Country Information Report, Pakistan, 15 January 2016, sections 3.39-3.41.

    [23] DFAT, Country Information Report, Pakistan, 1 September 2017, sections 3.106-3.108.

15. The first Tribunal found that, given the situation in Swat at the time, the applicant and his cousins, including his [Relative A], may have been assaulted by Taliban members in August 2008 for engaging in un-Islamic behaviour and refusing to join the Taliban, and that [Relative A] may have been killed [in] August 2008 as an example to others.  The current Tribunal shares that view.  The first Tribunal commented that while the evidence indicates [Relative A] was made an example of because of his un-Islamic behaviours such as watching movies, it also accepts that [Relative A] may also have been targeted because of his role as a local district [official] for the ANP.  While the first Tribunal conceded that the applicant and his family members may have been supporters or even members of the ANP and the applicant may have assisted [Relative A] with his ANP activities from time to time, the first Tribunal concluded that the applicant did not have the same level of involvement with the ANP or profile as [Relative A] and concluded that the applicant was not a Taliban target at that time.  The current Tribunal also shares this view.  While the applicant and his representative submit that the applicant had been active with the PSF/ANP since 1998 and assisted [Relative A] extensively in his duties from 2000 until 2008, the Tribunal notes that the applicant’s initial statutory declaration of [September] 2012 commented that ‘the rest of my family and I also support the ANP but we were not actively involved like [Relative A] was’.  The Tribunal also notes that the letter from [Mr E], the ANP Provincial Assembly Member for [specified area], while certifying that [Relative A] was a member of the ANP and had the designation of [an official] from 2000, simply states that the applicant ‘has been a full supporter & Cousin of [Relative A]’.  The details provided by the applicant in his protection visa application also indicate that he was absent at sea for approximately [majority number] of the 68 months from January 2003 until August 2008, including from August 2007 until August 2008, covering the period of the national and provincial elections held on 18 February 2008.  It also seems likely that if the applicant and [Relative A] had been targeted by the Taliban [in] August 2008 because of their respective profiles with the ANP, they would both have been killed, rather than a young Taliban member being handed a gun and told to shoot one of them so the other one could go and tell the community as a message to everyone in the village of the consequences for acting against the Taliban.  The applicant has indicated that he stayed at home and kept very quiet after this but had no further problems with the Taliban up until April 2009.  The Tribunal concludes that the applicant has exaggerated the extent of his activities on behalf of the ANP and his ANP profile and finds he was not a Taliban target in August 2008 because of having a profile as an ANP activist.

    Claimed Taliban threat following the surrender of [Relative C] in April 2009

16. The applicant claims that he fled his home in [Town 1] in April 2009 because he received a threat letter from the Taliban accusing him of being an Army spy because he persuaded his [Relative C] to surrender to the Army.  The applicant told the first Tribunal that he was very afraid when he received this letter because the sentence for being a spy was beheading.  While the first Tribunal accepted that the applicant may have persuaded [Relative C] to surrender, it did not accept that he received such a threat letter or fled [Town 1] as a consequence.  The first Tribunal reached this conclusion because the Army had commenced a major operation at this time, the village council was encouraging people to surrender and many Taliban members did surrender at this time while others fled to or were hiding in the face of the Army counter-offensive.  In response to these findings the applicant has claimed that [Relative C] was one of the first to surrender in his village and therefore set a precent that many others followed.  He also indicated that the army entered [Town 1] later than some other locations in Swat.  The Tribunal queried the applicant that he had indicated to the first Tribunal that [Town 1] was a village of about 35,000 people and, given that, how he would have known [Relative C] was among the first to surrender.  He commented that the matter was of such a nature that word spread quickly and everyone knew about it.  The Tribunal also asked the applicant why the Taliban would issue such a notice rather than simply act, given they were telling him he was a spy and would not be spared rather than warning him to change his behaviour.  The applicant replied that the Taliban normally target, warn, then kill, leaving a note on the body.  The representative commented that the modus operandi of the Taliban was to spread fear and it may also have been that they had limited operational capability to carry out operations on the ground at that time due to the military operations.  The applicant also indicated that he knew people who received similar letters and had fled or been killed.  The Tribunal considers that these explanations are possible and finds that the applicant may have received a letter from the Taliban in April 2008 telling him that he was to be killed for being a spy, and therefore immediately fled [Town 1], in advance of his family evacuating the area as part of the broader movement of the population ahead of the army offensive in that area. 

    Killing of [Relative C] in April 2010

1. The applicant indicates that he returned to Swat in December 2009 after the ship on which he was working [encountered a serious accident].  The Tribunal accepts the applicant’s evidence that he returned to Swat at this time notwithstanding the previous threat to his life because he [was] extremely traumatised, wished to see and be with his family and be in a supportive environment, and because at that time, following the completion of the major Army offensive in Swat, he thought the army would have made Swat safe for him in relation to the threat from the Taliban.

2. The applicant indicates that it was when [Relative C] was killed and his body was dumped, along with those of [several] other people, that he lost faith that the authorities were acting to protect the local people. 

3. According to a 2009 report, an estimated 300 to 400 corpses of suspected Taliban militants, last seen alive when taken away by the Army, were found on street corners, bridges or outside homes throughout Swat and it was unclear whether the executions were perpetrated by the Army, local tribal militias or other Taliban insurgents.[24]  According to another 2009 report, “scores, perhaps hundreds” of bodies of tortured militants were found on the roads of Mingora (the main town of Swat located [distance] from [Town 1]) and in rural areas that were former militant strongholds in the aftermath of the Army offensive and local residents blamed the military.[25]

   [24] ‘The law in whose hands?’, The Economist, 1 October 2009.

   [25] Perlez, J & Shah, P, ‘Pakistan Army Said to Be Linked to Swat Killings’, The New York Times, 14 September 2009 (CISNET Pakistan CX233452)

4. The Human Rights Commission of Pakistan (HRCP) expressed concern about the extra-judicial killing of militants in Swat in its 2010 report on the state of human rights in Pakistan. The HRCP stated that:

   In 2010, HRCP raised alarm at the large number of bodies found dumped in Swat. As many as 282 such bodies were found between July 2009 and May 2010. Locals suspected that most of these people were killed by the security forces. HRCP was not given any proof of the security forces involvement but called upon them to ensure independent investigation of all such incidents to establish the exact situation….[26]

   [26] Human Rights Commission of Pakistan 2011, State of Human Rights in 2010, April, p.84  2014 (CISNET Pakistan CISLIB20546)

5. In a November 2009 cable[27], the US Ambassador to Pakistan noted that “a growing body of evidence is lending credence to allegations of human rights abuses by the Pakistan security force" during fighting in Swat and FATA and that:

   Post assesses that the lack of viable prosecution and punishment options available to the Pakistan Army and Frontier Corps is a contributing factor in allowing extra-judicial killings and other human rights abuses of detained terrorist combatants to proceed. There may be as many as 5000 such terrorist detainees currently in the custody of the Pakistan Army and Frontier Corps from operations in Malakand [encompassing Swat], Bajaur, and Mohmand. As operations in these areas and other parts of the FATA proceed, this number will increase.[28]

   [27] Released by Wikileaks and therefore unverified

   [28] US Embassy Islamabad 2009, Addressing Concerns About Pakistan Security Forces' Human Rights Abuses, 10 September 09 09ISLAMABAD2074 (sourced from WikiLeaks)

6. In October 2010, US government officials publicly expressed concern about human rights abuses committed by the Pakistan military in Swat.[29]  US officials were reported to have suspected that Army units had carried out extra-judicial killings of detainees and civilian supporters of the Taliban in revenge for attacks on military and police checkpoints.[30]

   [29] Mckelvey, T, ‘A Return to Hell in Swat’, Foreign Policy, 2 March 2011.

   [30] Schmitt, E & Sanger, D, ‘Pakistani Troops Linked to Abuses Will Lose Aid’, The New York Times, 21 October 2010.

7. In light of the information above, the Tribunal accepts that the Pakistan Army has engaged in extra judicial killings of captured militants and suspected civilian supporters in Swat.  Noting the comment regarding the ‘lack of viable prosecution and punishment options’, the Tribunal, like the first Tribunal, accepts that [Relative C] may have been killed by the Army and his body dumped in April 2010, a year after he surrendered to the Army.

8. The Tribunal also accepts that the applicant was part of a small group of people who approached the elders who comprised the local ‘Peace Committee’ which, operating with the authority of the Army, assisted in the armed defence of the community against the Taliban.  The Tribunal accepts that the applicant subsequently took part in a meeting between Peace Committee members and [several] Army commanders to discuss the extra-judicial killings.

9. While the Tribunal does not accept that the evidence supports the applicant’s claim that the Taliban and the Army are working together (given the mass casualties and atrocities on both sides), the Tribunal acknowledges the applicant’s concerns that broader issues such as pressure from the United States government to act against militants[31] does influence Pakistani government actions at one level while there appear to be contradictory actions at other levels such as the failure to prevent Taliban commanders and other high profile figures from escaping to safe havens, suggesting that other geopolitical considerations may motivate some of the government’s actions.  The Tribunal accepts that the applicant may have made angry comments at the meeting with Army commanders including that they were responsible for the deaths and that it appeared the Army and the Taliban were working together.

   [31] ‘Beware the Revenge of Pashtun’, Kaleej Times, 18 May 2009, >

   While the applicant has not claimed to have suffered harm due to voicing such concerns in the immediate aftermath of [Relative C’s] death, the Tribunal accepts that it is possible that the applicant irritated Army commanders by speaking up and accusing them of being responsible for the deaths when he met with them along with members of the Peace committee after the bodies were found.  The Tribunal finds that, if this was the case, it did not result in him being targeted for harm by the Army at that time.

   Dumping of further bodies in December 2010

10. Noting that Amnesty International reported in 2012 that the Army had detained and possibly killed suspected militants between 2010 and 2012[32], the first Tribunal accepted that further bodies may have been found dumped in the applicant’s district in December 2010.  The first Tribunal commented, however, that it could not locate any reports of protests in [Town 1] in December 2010 and did not accept that the applicant and his friends were the main organisers of a protest the day after the bodies were dumped.  In reaching this conclusion the first Tribunal found that the applicant did not have any role or standing in the community that would have caused or enabled him to organise such a protest within 24 hours.  The first Tribunal also did not accept that the Army would have arrested and subsequently killed local men protesting extra-judicial killings given the level of attention and concern, at a local, national and international level being directed towards such abuses by the Army, or that the killing of [number] protesters would have gone unreported had it occurred.

    [32] Amnesty International, ‘The Hands of Cruelty: Abuses by Armed Forces and Taliban in Pakistan’s Tribal Areas’, November 2012.

11. In response to these findings the applicant submitted further statements clarifying how the claimed protest was mounted spontaneously in [a location] (described as the busy town centre where buses stop and people from other villages come to trade).  He indicated that he and his friends began to yell and chant slogans against the Army and told the gathering crowds they were planning a bigger protest the next day.  The representative also submitted there are both reports of ongoing abuses by the Army in Swat and commentary on the difficulties faced by human rights bodies and journalists in reporting on ongoing abuses.

    The situation in Swat post 2009 – the Taliban

12. Independent information before the Tribunal indicates that, despite the defeat of Taliban militants in Swat by the Pakistan military in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military continue.[33] 

    [33] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at >

    A May 2014 report by the Voice of America on Pakistan military operations targeting Taliban strongholds in neighbouring Buner District, noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014, were a ‘clear indication of militant presence in the region’.[34] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[35] who stated that the Taliban in Swat were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region.  Cloughley characterises the Taliban in Swat as being ‘down but…not out’.[36]  The Taliban’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House (in 2013) that the Taliban have become active in Swat again.[37]

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

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

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

13. There is also evidence of militant attacks against peace committee members[38].  Since July 2014, there is information that Taliban militants remain active in the district and continue to carry out sporadic ‘hit and run’ type attacks against peace committee members and Army patrols.[39] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[40] Over the same time period, small groups of Taliban fighters have been infiltrating back into Swat from sanctuaries in the Afghan provinces of Kunar and Nuristan, and militant cells have been operating in the Kabal, Matta, Charbagh and Miadam areas of Swat.[41]

    [38] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,

    [39] Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014, ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014, ‘Killing spree - Village defence committee member shot dead’, Express Tribune, The (Pakistan), 28 October 2014, Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014,

14. A September 2014 article in Dawn newspaper indicates that on 15 September 2014 the head of the Gul Jabba village peace committee was gunned-down in broad daylight near a check-post manned by security personnel and the same day two peace committee members were killed in Bara Bandai.  The article comments that over the last three years at least 30 members of Village Defence Committees (VDCs) or Peace Committees have been gunned-down in Swat.  These killings are described as an ongoing process of retaliation for helping the authorities arrest militants and destroy their houses.  The article concludes that continuing attacks are belying the military’s claims of having secured the area from militants and that experts say the Taliban will not be able to regain the hold it had on the Swat valley from 2007-2009 but are likely to restrict their activity to hit-and-run tactics, an ideal guerrilla warfare approach in Swat’s rugged terrain.[42]

    [42] ‘Swat: an unquiet calm’, Dawn, 21 September 2014, >

    An investigative report by Al Jazeera in late 2014, suggests the number of VDC fatalities in the Swat Valley is much higher than reported by the military and other sources,[43]referring to at least 22 VDC members having been killed in targeted attacks across the valley this year alone. 

    [43] ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014,

15. Military spokesperson Lieutenant-Colonel Aqueel Malik has stated that there are approximately 3000 peace committee members in Swat, of whom 22 are highly placed on a Taliban hit-list.  He states that the Taliban target tribal leaders because they are ‘soft targets’ and peace committee members because ‘these people worked closely with law enforcement agencies [and the Army] in order to end terrorism.’[44]  According to a December 2014 report by Newsline Pakistan, attacks on people working with peace committees in Swat have continued during the past few years.[45]

    [44] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,

    [45] ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014,

16. Country information also indicates that in September 2014 a curfew was imposed in areas of Swat following the killings of several peace committee members by militants.[46]  In April 2010 two peace committee members in Kuza Bandai were killed and three injured by ‘assailants’ according to the US Department of State report[47] and The New York Times.[48]  In early June 2016, there were reports about a VDC member in Koza Bandai area escaping an attempt on his life in the Kabal tehsil of Swat district.[49]

    [46] ‘Indefinite curfew continues in northwest Pakistan’s Swat district’, The Economic Times, 18 September 2014, ‘Country Reports on Human Rights Practices for 2010: Pakistan’, US Department of State, 8 April 2010, Section 1g, p.29,

    [48] Tavernise, S. and Shah, P. Z., ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April 2010,

    [49] ‘Peace body member escapes attempt on life’, News International-Pakistan, 4 June 2016,

17. More recently, an article in the Friday Times reported that at least 120 target killings and other attacks of violence have been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the peace committees.  The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that ‘the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces’.[50]

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

18. There have been further security incidents in the Swat Valley in 2016, with fatal attacks on VDC members, police and people with an anti-Taliban profile,[51] including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in Bara Bandai and Manglore.[52] 

    [51] ‘Target killings: An unending wave in Swat’, Morning Post, 19 January 2016, ‘Shangla DSP killed in Swat’, Dawn, 13 April 2016,

    [52] ‘Village defence body member, guard shot dead’, Dawn, 24 May 2016,

19. The Centre for Research and Security Studies recently released a further report for the period April – June 2016 in which it is stated that police officials appear to be the main target of violence in KPK, followed by political activists belonging to the ANP and the pro-government peace committee members.  It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[53] 

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

20. In its 2016 Country Information report DFAT states that the most potent security threat in Pakistan remains the Taliban insurgency based in FATA and KP which, combined with the war on terrorism, has claimed more than 57,000 lives since 2001 in Pakistan.  DFAT comments, however, that since the commencement of the assertive counter-terrorism military operation Zarb-e-Azb in June 2014, Pakistan military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country, and this trend increased over the course of 2015.[54]  The Pakistan Institute for Conflict and Security Studies (PIPS) Annual Security Assessment Report for 2015 comments that the security situation in KP improved substantially during 2015 with an almost 70 per cent reduction in militant attacks compared with 2014, returning to the status of 2007/08 when this wave of militancy picked up momentum.  The report comments that the substantial improvement is directly linked to military operations in FATA as well as measures adopted under the National Action Plan (to counter terrorism).  The report notes, however, that incidents of target killings continued to occur in KP province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015[55].

    [54] DFAT Country Information Report, Pakistan, 15 January 2016, sections 2.28-2.34.

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

21. The Tribunal finds that the relevant country information indicates that despite the military gaining control of Swat in 2009 and the resultant improvements in the overall security situation, the Taliban continue to launch attacks against military targets, anti-Taliban political activists, and those they consider support the Pakistani authorities, including peace committee members.

    The situation in Swat post 2009 – the Army

1. The current Tribunal also finds that relevant country information supports the assertion that there are ongoing serious human rights abuses by the Army/security forces in Swat and KPK more broadly and that the media and human rights monitors have faced difficulty in investigating and reporting on such matters. 

2. The applicant’s representative has referred to such reporting.  A 2016 report of the United Nations Human Rights Council (UNHCR) Working Group on Enforced or Involuntary Disappearances commented that it is still gravely concerned about the reported widespread practice of enforced disappearances in Pakistan and expressed regret that the Government of Pakistan had not implemented most of the recommendations contained in the Working Group’s country visit report.  The Working Group also expressed concern about reported cases of threats, reprisals and harassment of families of disappeared persons and human rights investigators.  It observed that there is a climate of impunity in Pakistan and that authorities are not sufficiently dedicated to investigating cases of enforced disappearance and holding perpetrators accountable.  The report noted that of 1273 cases of enforced disappearance in the past 4 years 632 are from KP province.[56]

   [56] Report of the Working Group on Enforced or Involuntary Disappearances, Follow-up report to the recommendations made by the Working Group, Missions to Congo and Pakistan, United Nations Human Rights Council, 13 September 2016.

3. The 2018 Human Rights Watch Country Summary for Pakistan comments that security forces remained unaccountable for human rights violations and exerted disproportionate political influence over civilian authorities and that security forces were implicated in enforced disappearance and extrajudicial killings throughout the country.[57]

   [57] Human Rights Watch, Country Summary, Pakistan, January 2018.

4. The US Department of State 2016 Human Rights Report for Pakistan commented that the most serious human rights problems in Pakistan included extrajudicial and targeted killings; disappearances; torture, and lack of rule of law (including lack of due process, poor implementation and enforcement of laws).  The report states there ‘were numerous reports that authorities committed arbitrary or unlawful killings’ and that security forces reportedly committed extrajudicial killings in connection with conflicts, including in KP.[58]

   [58] US Department of State, Pakistan 2016 Human Rights Report.

5. The 2017 DFAT Country Information Report also comments that there are credible reports of both militants and security forces carrying out extra-judicial killings and enforced disappearances and that reports of incidents involving arbitrary deprivation of life rose sharply during Operation Zarb-e-Azb (from June 2014).  DFAT comments that, according to the Pakistan government’s Commission of Inquiry on Enforced Disappearance, at the end of 2015, nearly half of 1,390 outstanding cases of alleged disappearance were from KP.  DFAT also comments that it understands that the government and military often restrict access to information and physical access to areas such as the FATA, border areas of KP and parts of Balochistan.   DFAT comments that restrictions on media reporting capabilities in FATA and KP may mean some incidents in those areas are not reported.[59]

   [59] DFAT Country Information Report, Pakistan, 1 September 2017, sections 2.30-2.31, 3.107, 3.120, 4.1 and 4.4-4.6.

6. Considering the above country information the Tribunal affords the applicant the benefit of the doubt and accepts that he fled Swat in December 2010 because his friends were detained by the Army and he feared he would be arrested because they orchestrated a protest against the Army dumping more bodies near [Town 1].  The Tribunal accepts that the applicant’s friends were subsequently killed by the Army.

   Likely activities on return to Swat

7. While noting that the 2017 DFAT Country Information Report indicates that the ANP’s political influence in KP is declining and that the applicant was not active in supporting the ANP after August 2008, the Tribunal accepts that the applicant has an interest in political affairs and may again become an active supporter of the ANP or another ‘progressive’ political party should he return to Swat.  The Tribunal accepts that the applicant holds anti-TTP and anti-Army views and would be likely to express these on return to Pakistan given the current security situation and ongoing abuses by both sides.  The Tribunal accepts that the applicant has previously been accused by the TTP of being an Army spy.  The Tribunal accepts that the applicant’s cousin [Relative C], who joined with the applicant in persuading [Relative C] to leave the Taliban and surrender to the Army, has fled to [another country].  The Tribunal also accepts that the applicant fled Swat in December 2010 to avoid being detained by the Army.  In this context the Tribunal also accepts that the applicant’s wife may have been assaulted by Army personnel who came looking for the applicant in December 2010, causing her to suffer a miscarriage, and that the applicant’s brother may have left [Town 1] in March 2017 after being detained by Army personnel who questioned him regarding the applicant’s whereabouts following an identity check at an Army checkpoint.  The Tribunal also accepts the applicant’s evidence that it was when he heard of the murder by the Taliban of ANP [official] [Mr B] in January 2012, while his vessel was in [Country 1], that he concluded he could not safely return to Pakistan and decided to desert his ship on arrival in Australia in March 2012.  The Tribunal is satisfied with the applicant’s explanations regarding why he did not seek protection on previous visits to Australia or in [Country 1] and for the four month delay in applying for protection after his arrival in March 2012, and does not share the delegate’s concern that the timing of the applicant seeking protection ‘raises serious concerns about the gravity and immediacy of the applicant’s fear of harm and casts serious doubts on the genuineness of his fear of harm’.

8. Considering his circumstances cumulatively, the Tribunal accepts that should the applicant return to his home in [Town 1] in the Swat district, the risk of the applicant suffering serious harm either from the Taliban or the Pakistan Army (or both) as a consequence of his actual and/or imputed political profiles of opposition both to the TTP and to the Army, cannot be dismissed as insubstantial or remote.   

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

   Availability of state protection

10. In this case, the harm that the applicant fears is both from non-state and state agents.  The applicant’s representative submits both that the Pakistan security forces are unable to provide a reasonable level of state protection to the applicant given their limited capacity to enforce law and order and to provide protection from harm carried out by non-state agents, and themselves present a direct risk of serious harm to the applicant.

11. The Tribunal notes that the 2016 DFAT Country Information Report states that Pakistan’s army and paramilitary forces regularly conduct counter-insurgency operations in the FATA and remote parts of Khyber Pakhtunkhwa to increase government control in these areas and a large number of people have been arrested on terrorism-related charges since the commencement of the National Action Plan in December 2014.  DFAT also states, however, that successful prosecutions of those responsible for politically-motivated or sectarian violence are rare and (as noted by the International Crisis Group) only a small number of those arrested under the NAP belong to extremist groups.[60]   According to a December 2014 report by Al-Jazeera, the network of military checkpoints across Swat has done little to prevent the Taliban from carrying out targeted killings or to help security forces arrest those responsible.  Khwaja Khan, a local political leader who is reported to be on the Taliban's hit list, claims that the attacks have occurred ‘in close proximity to checkpoints’ and that the response of the security forces has been ineffective.[61]

    [60] DFAT Country Information Report, Pakistan, 16 January 2016, sections 5.1-5.2.

    [61] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,

12. A recent report issued by the United States Department of State’s Overseas Security Advisory Council, states that:

    Pakistani authorities have only minimal control of many areas of KP province and FATA, including the Swat Valley and North and South Waziristan.  These areas offer terrorists, extremists, and militant groups a safe haven to prepare, train, and carry out attacks.  The FATA and Swat Valley are lawless and should be avoided.

    The presence of al-Qai’da, Islamic State (ISIL), Afghan and Pakistani Taliban elements, and other indigenous militant sectarian groups, and geographic proximity to the Afghanistan border, continue to pose a danger.  Targeted attacks against government officials, property, military, law enforcement, and soft targets (educational facilities) are common.  Consulate Peshawar receives reports that indicate IED strikes, targeted assassinations, and bombings throughout the region occur on a weekly basis:[62]

    [62] United States Department of State Overseas Security Advisory Council, 30 March 2016, ‘Pakistan 2016 Crime and Safety Report: Peshawar’

13. Based on the country information the Tribunal considers the situation in the Swat Valley region remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban.  While the security situation appears to have improved somewhat since 2009, it is clear that militants remain active in the area and that the response to attacks on residents by militants is limited. 

14. On the information before it the Tribunal finds that, apart from the direct threat the applicant faces from the security forces in Swat, the level of protection available to the applicant from the Pakistani authorities in the Swat Valley and KP province does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Therefore the Tribunal finds that the applicant faces a real chance of persecution from the Taliban and from the Pakistani Army for reasons of his actual and imputed political opinions if he returns to his home in [Town 1] or elsewhere in KP province, now or in the reasonably foreseeable future.

    Relocation

15. The Tribunal has considered relocation to a region where there is no risk of the feared persecution, away from the applicant’s home village and outside the Swat Valley and KP province.

16. Having considered the psychologist’s reports provided by the applicant, the Tribunal accepts the applicant suffers from and is receiving ongoing treatment for depression, chronic anxiety and PTSD.  The Tribunal has considered the most recent report (dated [August] 2017) by the applicant’s treating psychologist which, while noting significant improvement in the applicant’s mood, indicates that he is continuing to take anti-depressant medication on a daily basis and to attend regular psychological counselling sessions.  The Tribunal notes the comments by the applicant’s treating psychologist that a return to Pakistan would be highly likely to be traumatising for the applicant and could trigger an acute stress response which would lead to a fall back into a major depressive disorder, leaving him incapable of helping himself or his family.  The applicant’s representative submits that the level of mental health care and treatment in Pakistan is ‘wholly inadequate’ and the applicant’s feelings of ‘subjective unsafety and insecurity…would be inimical to effective treatment of his PTSD’.  The Tribunal accepts that relevant country information indicates the mental health services in Pakistan are limited[63] and accepts the applicant’s mental health condition will likely deteriorate if he returned to Pakistan.

    [63] WHO-AIMS Report on Mental Health System in Pakistan,

17. The Tribunal has also given careful consideration to submissions by the applicant and his representatives regarding the particular difficulties that he would face in seeking to relocate himself and his family in Pakistan.  These include that he speaks Urdu with an accent that would identify him as a Pashtun from Swat and his wife only speaks Pashtu.  He also would need to produce identity documents to rent accommodation and obtain employment.  These would clearly indicate that he is a Pashtun from Swat.  The applicant commented that Pashtuns from Swat have a poor reputation in other parts of Pakistan (including that they are TTP terrorists or supporters) which makes the general population extremely suspicious of them and results in difficulties obtaining accommodation and employment, as well as harassment from government authorities and the general public.  It was submitted that such factors, as well as him being a returnee to Pakistan after a long absence in the West, could result in Taliban networks or the security forces becoming aware of his presence and background, putting him at increased risk of serious harm.  At the hearing with the first Tribunal the applicant acknowledged that there are Pashtun communities in other parts of Pakistan including Punjab province but commented that they have been living there for a long time, many from before the conflict in Swat, their leaders and elders had opened the way for them and they are now well established.  He commented that these established Pashtun communities do not accept new arrivals from Swat because they are suspicious of them and see them as a threat to their own security, commenting that ‘the Taliban has caused our reputation to go’.  In this regard, the Tribunal notes that the 2017 DFAT report comments that DFAT is aware that members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty obtaining identification.  The report further comments that large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities – due to the fact that the TTP’s support base is primarily Pashtun.[64]  The applicant has also indicated that his family is of limited means and cannot afford to relocate.

    [64] DFAT Country Information Report, Pakistan, 1 September 2017, section 3.5.

18. The Tribunal accepts the applicant has ongoing mental health conditions that will adversely impact on his ability to relocate himself and his family, including his ability to find employment and housing, and will make it difficult for him to deal with any community and official discrimination and/or harassment that he might face.  The Tribunal accepts that the applicant is not from a wealthy family.  The Tribunal notes that the applicant previously worked as a seaman but considers it unlikely he would be able to resume such employment given he deserted his ship in March 2012.  The Tribunal considers that, given the applicant’s mental health issues, it may be very difficult for him to secure work outside Swat Valley where he has no family or social supports, and difficult for him to secure accommodation.  In these circumstances, the Tribunal does not consider it reasonable to expect the applicant to relocate himself and his family to another part of Pakistan to escape the harm he fears in [Town 1], Swat Valley and KPK province.

19. The Tribunal finds the applicant has a well-founded fear of persecution in his home village of [Town 1], Swat Valley and KP province, and that it would be not be reasonable to expect the applicant to relocate himself and his family to another part of Pakistan to escape the persecution he fears.

20. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan now or in the reasonably foreseeable future, for the Convention reason of his political opinion.  

21. While not determinative in this case, the Tribunal also accepts that there may be some risk of significant harm to the applicant arising from the desire of members of the family of his [Relative C] to exact revenge for the applicant’s role in convincing [Relative C] to surrender to the Army and [Relative C’s] subsequent death.  While the Tribunal notes that family members would seem to have had opportunities to take revenge on the applicant if they wished to do so in the period from [Relative C’s] death in April 2010 until the applicant departed Swat for the last time in December 2010, the Tribunal also notes country information regarding the Pashtun concept of ‘badal’ (to seek justice or take revenge against a wrongdoer).  Consistent with the applicant’s comments at the hearing that [Relative C’s]  family members are waiting for an opportunity which has not arisen yet, the information indicates that there is no time limit to when the injustice can be avenged, but if badal is not exercised, the offended man or his family will be considered stripped of honour.[65]

    [65] ‘Understanding Pashtunwali’, The Nation, 6 August 2013, >

    For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Paul Windsor
    Member

    
    
    

‘ANP leader killed in Swat’,

Dawn, 11 April 2016, policemen shot dead in Dherai’, Dawn, 12 January 2016,

‘Policeman killed and two others injured in Swat attack’, Dawn,

25 May 2016,