1710887 (Refugee)

1710887 (Refugee) [2022] AATA 1199 (22 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710887
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Louise Nicholls
DATE:22 February 2022.
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 February 2022 at 10:53am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – member of the Awami National Party (ANP) – limited involvement – involvement in the Village Defence Committee/ lashkar – fear harm from the Tehrik-e-Taliban Pakistan (TTP) – Pashtun ethnicity – racial and ethnic profiling – parent of a seriously disabled child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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

The applicant claims to be a citizen of Pakistan and is
The applicant applied for a protection visa on 29 July 2016.
The applicant attended an interview at the Department of Immigration and Border Protection on 21 April 2017.
On 16 May 2017 a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for the visa.
This is an application for review of that decision made on 22 May 2017.
The applicant appeared before the Tribunal on 16 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant gave evidence about his background, his migration history and his claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Material before the Tribunal
The applicant provided his representative’s submissions and several documents with his application, including:
·Statutory Declaration of the applicant made on 29 July 2016.
·Pakistani Passport and Seaman Service Book.
·Seafarer’s Identity Card.
·Applicant’s North West Frontier Province Drivers Licence [dated] 2005.
·Pakistan Security Pass.
·Pakistan National ID Card & Translation.
·Letter from General Secretary of the Awami National Party (ANP), Swat District [dated] December 2016.
·ANP Membership Card – not translated.
The applicant provided his representative’s submissions dated 9 and 14 April 2021 and several documents to the Tribunal, including:
·[Mr A]’s (the applicant’s father) Pakistani death certificate.
·Statutory declaration of [Mr B] made on 13 April 2021
·Birth certificate of the applicant’s son [Child C].
·Several medical and hospital reports and photographs of the applicant’s son [Child C].
·Index to several media reports and other country information items relating to Pashtuns in Pakistan and the situation in Swat/Khyber Pakhtunkhwa (KPK).
·[Bank 1] Statement December 2020 to April 2021.
·Translated copy of membership card ANP dated 16 December 2014.
·Post hearing submissions dated 23 April 2021.
·Items of country information provided in December 2021 and January 2022.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
Background
The Tribunal has provided the following evidence about his background and circumstances.
The applicant is [age] years old, he is of Pashtun ethnicity and was born in [Village 1], Swat, KPK. The applicant lived in [Village 1] until May 2011. He previously completed his [Bachelor degree] in March 2008 and after that went to work on the family farm.
The applicant is married and his wife and three children all live in [Village 1] with his wife’s parents. He stated that it was unusual for a married woman to live with her own parents rather than the applicant’s parents. He stated it was safer for her to live with her parents.
His father had Alzheimer’s disease and has passed away. His mother lives with the applicant’s elder brother. His brother used to [work] but now is at home caring for his mother and sister and the family property. The applicant’s youngest brother is studying in [Country 1] and now has a residence permit.
In May 2011 the applicant moved from [Village 1] to Karachi where he started training at [College 1], Karachi. In May 2012 he joined [Employer 1] as an [Position 1][1] and while in Karachi lived in [Location 1].
[1] [Details deleted]
The applicant worked on the ships from 2012 until he last arrived in Australia [in] June 2016. He left the ship and later applied for protection on 29 July 2016.
In 2021 the applicant’s representative provided updated information on the applicant’s circumstances. He stated that the applicant’s father passed away in November 2019. The applicant has been sending money to Pakistan to provide support for his family. He claimed that since his father’s death he has been the main provider for the family.
The applicant’s son [Child C] has been diagnosed with “post meningitis with moderate hydrocephalus and brain atrophy likely sequalae of meningitis”. His son is unable to talk, walk, eat by himself and is bedridden. He is unable to digest food properly. He does not go to school and has a physiotherapist who visits him nearly every day to give him massages. He sees a doctor in Islamabad once every month and needs special shoes, gloves to keep his arm straight and a special chair. The costs of his medical attention are higher than any employment income that the applicant could receive in Pakistan.
The applicant stated he has been told that his immediate family treat his son well but some of his relatives and members of the community do not. People laugh, make jokes and say disrespectful things about his son. People say that his wife must have done something bad because their son is disabled and if the applicant were forced to return to Pakistan people would say the same about him. The applicant provided some photographs of his son and medical reports which support the evidence he gave regarding his son’s medical condition.
At the Tribunal hearing he stated he married in 2008. His wife is from the village but lives with her own parents. He has a son born in [year] and twins, a boy and a girl, born in [year].
His younger son has health problems. He is paralysed after a meningococcal infection which has caused brain damage. He is getting treatment and therapy and sees a doctor in Islamabad. His wife, his father-in-law and brother-in-law travel to Islamabad for his son’s medical treatment.
He explained that his son was born in [year] when he was away on the ships. When his wife came to see him in Karachi his son did not have any health problems. In 2015 he started suffering and complaining and in 2017 he became paralysed.
Country of reference
The applicant claims he was born in [Village 1], Swat, KPK and is a citizen of Pakistan. He provided a copy of his seaman’s service book and passport which was issued [in] 2014 as well as other identity documents. He has consistently claimed that he is of Pakistani nationality, he spoke Pashto fluently and he was familiar with the geography and culture of Pakistan and the Swat Valley.
Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Pakistan and that Pakistan is the receiving country for the purpose of s 36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the statutory declaration accompanying the application for protection.
The applicant discussed his claims for protection with the delegate at an interview on 21 April 2017. The applicant’s representative made written submissions on the applicant’s claims which included a discussion of the claims as well as country information.
The applicant gave oral evidence concerning his claims at the Tribunal hearing held on 16 April 2021.
Essentially the applicant claims if he returns to Pakistan he faces serious harm from the Tehrik-e-Taliban Pakistan (TTP) because he was a member of the ANP and a member of a Village Defence Committee, also known as a lashkar. If he returned to Pakistan, there would be a family obligation to join the lashkar again which would put him at risk of harm from the TTP. He also states that as a Pashtun he cannot relocate to another area of Pakistan as there is discrimination against Pashtuns in various areas and militants dispersed throughout the country. He also claimed that he would suffer stigma as the parent of a seriously disabled child.
Was the applicant a member of the ANP?
In his statutory declaration the applicant stated that he was, and still is, a member of the ANP. He stated the TTP were opposed to the ANP because it was a secular party and was critical of the TTP.
The applicant claimed he left Swat because several family members who had either been in the lashkars or the ANP had been targeted and killed.
At the interview with the delegate, when asked about his involvement with the ANP, he stated that he had assisted with putting up flyers for the ANP for the election in 2007. He was not able to give the delegate any information about his involvement in other ANP activities after that date.
The applicant provided a statutory declaration from [Mr B] who stated that he was born in [Village 1] and he has known the applicant since they were both children. He also stated he was a relative by marriage.
He stated that the applicant’s family were in the ANP and that for cultural reasons, the applicant would also have to be a member. He also stated that in 2002 he and the applicant would see each other at political gatherings, and he saw the applicant help out in a campaign.
The applicant provided a copy of his ANP membership card with an English translation. The card indicated that the applicant was a member of the ANP and the card was dated [in] December 2014.
At the Tribunal hearing the applicant stated that his relationship with the ANP dated back to his father and grandfather. He explained that in Swat, if a father belongs to a party the sons are also in the party. He claimed that in 2002 he joined the party and helped in the election campaign in 2002. He claimed that after the election he was still involved in meetings. From 2008 he was still active and made telephone calls and organised meetings, posters and banners.
The applicant agreed that in 2002 he was [age] years old. This was the first time he actively participated in the ANP and he helped make a stage for speeches, he put up posters and served drinks in [Village 1]. He agreed the ANP are mainly supported by the Pashtuns in KPK, Karachi and Balochistan.
In the 2008 election campaign he helped with meetings and putting up posters. However, the campaign could not be conducted openly because the TTP had control of Swat in 2008. He stated the situation from 2008 to 2010 was very bad for people living in Swat. Even though the ANP won all the seats in the local elections nobody could do anything because of the fighting which lasted for two years. The locally elected MP was killed around this time.
The applicant stated that after the 2008 elections the fighting continued, and no one could disclose they were in the ANP. He claimed about 450 to 500 ANP members were killed during that time.
The TTP were driven out by the Pakistani military campaign in 2009 and some of the members of the TTP went to Afghanistan and some stayed, cut their beards and changed their appearance. The applicant claimed that those people started targeting people who had helped the military.
His family were evacuated from Swat and after three months the military advisers told the men they could return to the village but not the women or children. When the men returned, they found the village had been destroyed.
The applicant moved to Karachi in May 2011 but did not have any involvement with the ANP in Karachi. He had started at the [college] and in 2011 the situation was still bad for the ANP in KPK and Karachi. He claimed he did not disclose his ANP membership while he lived in Karachi and he was not threatened or harmed in Karachi. The applicant agreed with country information that Karachi was a very large city with a high level of political and criminal violence, however, he lived in a hostel for the college and was not harmed.
The Tribunal accepts that the applicant and his family supported the ANP which is a political party with its members and supporters mainly drawn from the Pashtun population of the KPK and surrounding areas.
The evidence indicates that the applicant joined the ANP because of his family’s traditions and expectations. While the Tribunal accepts that the applicant was, and is, a member of the ANP, it considers that his active involvement has been very limited. At the age of [age] years the Tribunal accepts he assisted during the election campaign in 2002 by helping with the stage, serving drinks and putting up posters for the ANP.
With respect to the 2008 elections his evidence was not clear. On one hand he stated that he was involved in the 2008 election campaign but also stated that the situation in Swat was very bad in 2008 and no one was campaigning for the ANP due to the TTP occupation of the Swat Valley. The Tribunal finds he may have been a supporter of the ANP in 2008 but he was not actively involved in any ANP activities in 2008 or thereafter.
The applicant gave evidence, and the Tribunal finds, that the applicant had no involvement in the ANP while he was in Karachi other than for the acquisition of a membership card in 2014. Further there is no evidence of any involvement with the ANP while he has been in Australia.
The latest Department of Foreign Affairs and Trade (DFAT) report on Pakistan[2] gives some background to the history and features of the ANP. It notes:
Awami National Party (ANP)
3.73 The Awami National Party (ANP) is a secular Pashtun nationalist political party. It was formed in 1986 and enjoys strong support in Khyber Pakhtunkhwa and Balochistan. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government. Since 2018, ANP members have participated in large-scale demonstrations led by the PTM against human rights abuses against Pashtuns in the tribal regions of Pakistan.
3.74 The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and work to improve the Pakistan-Afghanistan bilateral relationship. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded 69 and killed at least 20, including prominent ANP politician Haroon Bilour. In June 2019, the Peshawar city district president of ANP, Sartaj Khan, was gunned down in Gulbahar, Khyber Pakhtunkhwa. The ANP was also the target of TTP attacks ahead of the May 2013 elections. While security operations have weakened the TTP in recent years, they retain the capacity and intent to target ANP members and leadership (see Armed Groups).
[2] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, January 2022
Overall, the evidence indicates that the applicant supports the ANP as a result of his family’s history and expectations but that he has only had limited involvement with the ANP. He appears to have acquired an ANP membership card in 2014. The Tribunal does not consider he has had any active involvement since he left [Village 1] in 2011 some 11 years ago.
He told the Tribunal if he returned to Pakistan, he would be expected to be actively involved with the ANP, however, the Tribunal does not accept this evidence. The evidence indicates that he undertook some physical tasks for the ANP in his local area in the election campaign in 2002 and that he continued to support them in later years but did not have any active involvement. He left [Village 1] 11 years ago and had no involvement while he was in Karachi.
The Tribunal does not accept that he would be required to take on a more active role in the ANP if he returned to Pakistan. He has given evidence that his elder brother has left [his employer] and is living in the village of [Village 1] and is responsible for the care of the applicant’s mother and sister. There is no evidence his brother has joined the ANP or that he or other family members have been mistreated or harmed as a result of his, or his family’s, history of support for the ANP.
Was the applicant a member of the lashkar in his village of [Village 1]?
The applicant stated in his statutory declaration that he was born and lived in [Village 1] until 2011. During that time, he completed a Bachelor [degree] in 2008 at [University 1] and after he finished his studies, he returned to assist on the family farm.
He claimed he joined the village lashkar in 2009. He referred to the influence of the TTP in Swat before 2009 and the consequent military operation against the TTP in Swat. He stated he was given a lashkar card.
He was the only person in his family to join the lashkar. He claimed that usually the oldest son in the family joins the lashkar but his older brother was [working] and as the next oldest he was obliged to join.
He claimed that as a member of the lashkar he would go to military meetings and tell the military the location of the homes of militants. He stated the military destroyed the homes of militants. He also claimed he was involved in patrols at night.
He claimed that some of his family members had been targeted and killed by the TTP. He named two cousins who had been connected with the lashkar and two other persons who were said to have connections to his family and were members of the ANP.
He stated that he feared returning to Pakistan because of his membership of a lashkar as well as his involvement in the ANP.
At the interview with the delegate the applicant stated that he and some of his father’s relatives joined the village lashkar in 2009 as a result of his uncle being killed by the TTP after his uncle had given information to the local authorities about a bomb threat. He also claimed that a number of cousins had been killed in 2008, 2009, 2011 and 2012 as a result of their membership of the ANP and the lashkar. Given the level of terrorist violence during those years it is plausible that family members in the Swat district had been killed. However, country information indicates that local lashkars were not set up until after the military operation in Swat in 2009 and there is no reliable evidence that his relatives were killed as a result of involvement with village lashkars.
He claimed that the military required that every family in his area send a strong able-bodied adult to comprise the village lashkar. He was chosen because his elder brother was [working] and his younger brother was studying. He claimed that members of the lashkar conducted searches with police and at night performed patrol and guard duties.
The applicant told the delegate he was active with the lashkar for about two to three years and went on patrol every evening. He stated the [Village 1] area lashkar had about 400 to 500 members and each local patrol had about 10 to 12 members. There was no training and members used their own weapons. Members were accompanied by police or the military. He told the delegate that members of the lashkar were able to inform the army of TTP whereabouts. People from the area knew where the TTP were located whereas the military personnel were outsiders and did not have this information.

The delegate asked the applicant why he had participated in patrols every night if there were 400 to 500 members of the lashkar. He stated he participated because he had nothing else to do. He claimed the army would select a person to be leader of the group and he had been the leader of the group.
The applicant was asked to give details about what happened during a usual patrol and he gave a vague account in response to the delegate’s questions. The applicant provided the delegate with a membership card of the lashkar.
At the Tribunal hearing the applicant gave evidence that in September/October 2009 local people began returning to the [Village 1] area. He explained that people had vacated their village due to earlier military operations in the Swat area.
In 2009 when the men returned to Swat, the military came to the village and the house. They spoke to the military about the damage to their house and farm, the military said they would form a group and members could identify TTP members and their houses.
In 2010 the military had a meeting with members of the local community and that is when the lashkar was formed. After three to four months the lashkar became active.
The applicant claimed his uncle was shot in 2008. His elder brother was [working] and his younger brother was a university student, so he joined the lashkar to represent his family. His father was too old and sick to participate. The applicant claimed he was part of the leadership group at the local level.
He explained the villagers on the lashkar could identify members of the TTP and relatives visiting from other villages and they would pass on the information to the police and military. The group operated at night. Depending on the season they would operate from night until morning and then group members would get together and go to the check points.
He was in the group from [Village 1] with about nine to 10 members. They would give the military information about the TTP as well as general community information. He claimed he was involved with this group from the end of 2009 to May 2011 when he went to live and work in Karachi.
Country information on lashkars indicates that the term “Peace Committee” is often used interchangeably with several other terms, including Aman (“peace”) Committee; village lashkar (“army”); village defence committees; local tribal militias; anti-Taliban militias; as well as any combination of these terms. The most common term used to describe these groups appears to be lashkar.[3]
[3] Mann, S. ‘Rolling back the Taliban in Pakistan’, AfPak Channel, 27 September 2011
The volunteer local militia groups were formed with government encouragement as part of the army’s counter-terrorism policy in order to assist the security forces in holding the region against the return of militancy.[4] The main activities of such groups appear to be local patrols, defending against attack, and providing the army with information pertaining to the whereabouts of alleged militants.[5] According to a 2011 Combating Terrorism Center article, lashkars have a long history among Pashtun tribes, although they were never designed to be permanent fighting forces. The article states that “lashkars were traditionally formed to resolve a dispute and then disbanded after the dispute was settled”.[6]
[4] Pak Institute For Peace Studies 2011, Pakistan Security Report 2010, PIPS website, January, p. 6 Pak Institute For Peace Studies 2012, Pakistan Security Report 2011, January, pp.10-11 ; Rehman, Z. 2011, ‘Tribal militias are double-edged weapons’, The Friday Times, vol. 23, no. 33, 30 September – 6 October ; Hasan, S. 2010, ‘Militants disrupt peace in Swat valley’, BBC News, 30 April
[6] Khattak, D. 2011, ‘The Risks of Supporting Tribal Militias in Pakistan’, Combating Terrorism Center, 1 March

An April 2010 BBC article reports on the “government-backed peace committees” which aim “to help locals ensure that their neighbourhoods are secure” and “provide information to the army in case of militant activity”. The article notes that “as such they are on the front line – and primary targets for the Taliban”, giving the example of the head of a local peace committee and another member who were gunned down in a targeted killing near the town of Mingora, Swat.[7]

[7] Hasan, S. 2010, ‘Militants disrupt peace in Swat valley’, BBC News, 30 April accessed 30 July 2012

DFAT’s latest report on Pakistan[8] notes:

Peace committees
3.83 In some conflict-affected areas, including Khyber Pakhtunkhwa and Balochistan, local communities or the Pakistani government have empowered local councils called ‘peace committees’ (aman jirga) to help oppose militant groups such as the TTP. According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees ‘are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out-of-court arbitration’. Villages may also form peace committees of their own accord. Despite their name, peace committees take many guises, ranging from ‘keeping an eye on’ terrorist activities to actual engagement against terrorist groups as armed tribal militias.
[8] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, January 2022

The applicant has consistently claimed that he joined a village lashkar in late 2009/early 2010. He stated that the lashkar was a local group which was formed at the request of the military, but its members came from local village families. He provided a copy of his membership card and a letter from a person claiming to be a member of the ANP which stated he played a role against militancy by helping security forces identify militants. He also provided a short statutory declaration made by a relative who stated that he had observed that the applicant was involved with the ANP in 2002 and had been at a meeting of members of the local lashkar in [Village 1] in 2010. However, the statutory declaration made by the applicant’s relative was limited in its observations and the letter from the person claiming to be a member of the ANP lacked detail about the extent of the applicant’s activities.

The oral evidence given by the applicant about his participation in lashkar activities was vague and generalised. The Tribunal considers that the applicant’s evidence lacked the features which would be expected of a first-hand account of the applicant’s experience, interactions and impressions. After reviewing all the evidence before it, the Tribunal considers that between early 2010 and May 2011 the applicant may have observed and been aware of the activities of the local lashkar, and possibly occasionally involved in activities. However, it does not consider he regularly took part in lashkar activities such as patrolling or pointing out the residences of militants.

The Tribunal does not accept the applicant’s claim that he had a leadership role in the lashkar or that he regularly participated in the lashkar patrols. It finds that he was not threatened or mistreated in any way because of any involvement in a lashkar from 2010 to May 2011 or at any later time. The applicant also gave evidence that his brother and other immediate family have not been threatened or harmed by the TTP despite the applicant’s claim he had been previously involved in the lashkar. His elder brother retired from [employment] and has returned to [Village 1] to care for family members.

Further the Tribunal finds that the applicant has not had any involvement in a lashkar, either by observation or occasional involvement, since May 2011, some 11 years ago. Before 2011 any involvement was minimal.

Applicant’s employment as a seaman after he left [Village 1]

The applicant stated in his statutory declaration that he left [Village 1] in May 2011 because [Village 1] was not safe for him. He stated he has not returned to [Village 1] since May 2011. He stated that in July 2011 he started training as a seaman at [College 1] in Karachi.

In May 2012 the applicant stated he was employed by [Employer 1] as an [Position 1].[9] He lived in [Location 1], Karachi.

[9] ‘[Details deleted]

He claimed that in September 2015 there was an attack on a man called [Mr D] in Karachi. He claimed that [Mr D] was the village leader of the [Village 1] lashkar and that other lashkar members had also been attacked in Karachi. This made him realise he was not safe in Karachi.

The applicant stated he travelled to Australia as a seaman about 13 times before he left the ship [in] June 2016 without returning. He stated that his captain gave his identity documents to the Department when he failed to return in June 2016.

He claimed that he left the ship and applied for protection in 2016 because the situation in [Village 1] for members of the lashkar had become extremely dangerous. He stated that there had been many targeted killings of lashkar members in [Village 1] in 2016. He claimed a person named Muhammad Khan was killed going home in the evening. He claimed the situation in Swat had deteriorated in 2016.

At the Tribunal hearing the applicant stated that he started his seamen’s course in July 2011 and received a certificate when he finished. He then started working on the ships for a shipping company. He had various duties including cleaning, general maintenance, general seaman work and later working as a helmsman. On his first assignment he spent about 14 months at sea, the second was for 10 months and the third was for eight months. He had breaks of three months between voyages. The applicant visited [Country 1], [Country 2], [Country 3], [Country 3], [Country 4], [Country 5], [Country 6] and Australia.

He claimed that after 2011 he had not returned to [Village 1] but stayed in Karachi in [Location 1] during his breaks. He claimed that his wife would come to visit for a week or so while he was in Karachi. When she visited, she stayed in a hotel but he could not remember where she stayed as it was 10 years ago. He gave evidence that her brother or their son would accompany her to Karachi.

He visited Australia about 13 times when he was working on the ships. He did not seek protection on any of his previous visits because he thought the situation in Pakistan would improve. In 2016 he decided to leave the ship because many people in the lashkar had been attacked, his friend [Mr D] was attacked in 2015, and his mother told him not to return. He stated there was a lot of violence in [Village 1] and Karachi and he felt it was not safe to return.

The Tribunal accepts the applicant moved to Karachi in May 2011, obtained seamen’s qualifications and worked as a seaman from 2012 to June 2016 when he left his ship in Australia and later applied for protection.

The applicant claims he has not returned to [Village 1] since he left in May 2011. While the Tribunal has some doubts about this evidence given that his wife gave birth in [year] and [year], the Tribunal accepts it is possible that he has not returned to the family home in [Village 1] since 2011 but remained in Karachi during the lengthy breaks between his voyages with his wife visiting from time to time.

The Tribunal asked him whether he decided to stay in Australia and apply for protection because he wanted to work and provide financial support for his family and his son’s medical costs rather than due to a fear of returning. He stated that his son did not need significant treatment in 2016. He became ill in 2015 but did not become paralysed until 2017. However, the medical reports provided to the Tribunal showing the results of neurological scans range from 2015 to 2021 which suggests there was an earlier concern.

The applicant has friends, cousins and relatives from his wife’s side living in Australia. One is living in Sydney and three are living in Melbourne.

The applicant is working for [Employer 2] and currently shares a house with friends. The cost of rent and other expenses is shared by the housemates.

Does the applicant meet the refugee criterion?

Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Pakistan now or in the foreseeable future he faces a real chance of persecution for reasons of his membership of the ANP, his previous involvement with a village lashkar, his Pashtun ethnicity or because of his son’s medical condition.

The Tribunal accepts that the applicant was, and is, a member of the ANP but does not accept he has had an active role in the party in Pakistan and there is no evidence he has had any involvement since he arrived in Australia in 2016. He was not a high-profile or well-known member of the ANP.

The Tribunal does not consider if he returns to Pakistan now or in the foreseeable future that he will become actively involved in the ANP. His early activities were minimal, and there is no evidence he took part in any ANP activities while he was working on the ships and staying in Karachi between trips. He was not involved in the ANP while living in Australia.

The Tribunal has considered the submissions of the applicant’s representative and country information provided by the applicant’s representative which consists of various media articles and other sources which outlined the situation in Swat up to 2017, the history of attacks on members of the ANP by the TTP in Khyber Pakhtunkhwa from 2010 to 2016, the presence of militants in Karachi, the various campaigns by the TTP, the country and economic situation in Punjab and Islamabad and discrimination against ethnic Pashtuns.

More recent submissions refer to updated information on Swat, and attacks by the TTP in 2018, 2020 and 2021.

The Tribunal notes the country information which indicates that some members of the ANP have been targeted by the TTP in the past 10 years. The Tribunal considers that the country information reports an improving security situation in the last 10 years, although there has been an increase in militant activity in the last year.

Country information indicates the TTP appears to be reconsolidating after a few years of disunity. The TTP was a primary target of the Pakistani military’s operations in the former FATA (now the KPK).[10] In June 2018, the leader of the TTP, Mullah Fazlullah, was killed by a US drone strike in Afghanistan,[11] and Mufti Noor Wali Mehsud was appointed as the group’s new leader.[12] Unlike Fazlullah, Mehsud has a strong tribal backing and he has used this advantage to reunify the TTP, which had become increasingly fragmented under Fazlullah’s leadership. The group’s operational capabilities have remained intact and it has extended its reach in the northern districts of Balochistan.[13]

[10] ‘Tehrik-i-Taliban Pakistan (TTP)’, Project on Violent Conflict, University of Maryland, State University of New York, June 2015

[11] ‘Who is Taliban leader Mullah Fazlullah?’, Deutsche Welle, 15 June 2018, ‘US drone kills Pakistan Taliban chief", Dawn, 15 June 2018

[12] ‘Pakistani Taliban Appoint New Leader After Mullah Fazlullah's Killing’, Radio Free Europe / Radio Liberty, 23 June 2018, ’Pakistani Taliban appoints new chief after previous leader killed in drone strike‘, Reuters, 24 June 2018

[13] ‘Pakistan Security Report 2019’, Pak Institute for Peace Studies, 5 January 2020, p.68

Since March 2020, the TTP has “unleashed a wave of attacks on the Pakistani security forces” in what commentators have seen as a response to the risk of losing havens on the Afghan side of the border. During 2019, the TTP was reportedly involved in 82 terrorist attacks, of which 69 were in Khyber Pakhtunkhwa and 13 in Balochistan; these attacks claimed 150 lives.[14]

[14] ‘Pakistan Security Report 2019’, Pak Institute for Peace Studies, 5 January 2020, p.68

In DFAT’s latest report:[15]

3.74 The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and work to improve the Pakistan-Afghanistan bilateral relationship. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded 69 and killed at least 20, including prominent ANP politician Haroon Bilour. In June 2019, the Peshawar city district president of ANP, Sartaj Khan, was gunned down in Gulbahar, Khyber Pakhtunkhwa. The ANP was also the target of TTP attacks ahead of the May 2013 elections. While security operations have weakened the TTP in recent years, they retain the capacity and intent to target ANP members and leadership (see Armed Groups).
3.75 DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The risk may be higher for ANP leaders. ANP leaders may also be at risk of official harassment due to their association with the PTM protest movement.
[15] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, January 2022

While the Tribunal accepts that there has been an increase in attacks perpetrated by the TTP in the last year, the security situation in Pakistan has vastly improved when compared to the situation 10 years ago.

100. The Tribunal does not accept that if the applicant returned to Pakistan now or in the foreseeable future, he would be targeted for harm by the TTP or any militant group because of past and present membership of the ANP. As previously noted, the applicant has not been actively involved in the ANP since May 2011 and even before 2011 his activities, at the most were minimal, and limited to physical assistance during the election campaign in 2002.
101. Further the applicant’s elder brother has moved back to [Village 1] where he lives with the applicant’s mother and other family members. There is no evidence he has been mistreated for reasons of the applicant’s political opinion. The Tribunal does not accept that the applicant’s past ANP activities will put him at risk if he returns to Pakistan.
102. The Tribunal does not consider the applicant will seek to take an active role in the ANP if he returns to Pakistan. He was only minimally involved with the ANP up to May 2011 and has not been involved since May 2011. While it accepts that the applicant’s family have supported the ANP in the past, the applicant has not taken any steps to become more involved in the past 10 years and it does not accept he will do so if he returns to Pakistan now or in the foreseeable future. He has not taken any steps in Australia to become involved with the ANP or to continue any association with them.
103. The Tribunal accepts that a lashkar was set up in the [Village 1] district in late 2009 or early 2010. This is consistent with country information available to the Tribunal.
104. The Tribunal does not accept that the applicant was a leader of a patrol group within the lashkar. It also does not accept that the applicant regularly participated in lashkar patrols or that he provided information about TTP militants to the military. The Tribunal accepts he was aware of the lashkar and may have occasionally participated when he lived in the village from the group’s inception in 2010 to May 2011, however it does not accept he had a high profile or was a leader of the group or that members of the TTP would identify him as a member of the lashkar.
105. The applicant stated that his elder brother has returned to [Village 1] and has not been mistreated as a result of the applicant’s previous involvement in a lashkar.
106. The Tribunal has considered the country information on the targeting of lashkar members by the TTP. Country information indicates that members of peace lashkars or peace committees remain targets of anti-state groups, however they have benefited from an improved security situation across Pakistan in recent years. In February 2020, a peace committee member was killed in the Swat district of Khyber Pakhtunkhwa province in a targeted shooting for which no one claimed responsibility. Reportedly, the victim was also a local leader of the opposition Pakistan Muslim League-Nawaz (PML-N) and the bureau head of an Urdu-language daily newspaper, and several members of his extended family had been killed in the past due to their involvement in peace committees.[16]

[16] ‘Member of Anti Militant Group Killed in NorthWestern Pakistan’ Radio Free Europe/ Radio Liberty 26 February 2020.

With respect to terrorist incidents generally, since 2014 military and judicial efforts to reduce terrorism have led to dramatically fewer attacks. The National Action Plan (NAP) was formed as a 20-point plan to combat terrorism after a major terrorist attack in Peshawar in December 2014.[17] The NAP’s points of focus have included the formation of a special anti-terrorism force and military courts, anti-terror financing measures, counter-extremism measures, rehabilitation of people displaced by military operations, disruption of militant communication networks, and prosecution of sectarian terrorism.[18] Some counter-extremism actions taken under the NAP – and ongoing campaigns by the security forces and police counter-terrorism departments – appear to have been effective in reducing the numbers of terrorist attacks and related casualties.[19]
[17] 2019 Annual Security Assessment Report Pakistan Institute for Conflict and Security Studies 9 Jan 2020 p.56
[18][18] 2019 Annual Security Assessment Report Pakistan Institute for Conflict and Security Studies 9 Jan 2020 p.56
[19] 2019 Annual Security Assessment Report Pakistan Institute for Conflict and Security Studies 9 Jan 2020 p.56; Pakistan Security Report 2019 Pak Institute for Peace Studies 5 January 2020 p. 21

108. Against a trend of decreasing violence in recent years, 2020 experienced a modest increase in violent attacks. In the period since 2015, there has been a long-term trend of decreasing violence in Pakistan, including a substantial reduction in overall incidents in 2019.[20] While the Center for Research and Security Studies recorded a 12 per cent “aggregate drop in violence” during 2020, reporting varies somewhat between sources. The Pakistan Institute for Conflict and Security Studies reported that, despite fewer casualties in 2020, a 16 per cent increase in the number of militant attacks points to “an upward trend of violence”.[21] The Center for Research and Security Studies reported 600 fatalities from terror and counter-terror activities during 2020, compared to 678 such fatalities in 2019. The worst-affected provinces were Khyber Pakhtunkhwa (313), Balochistan (138) and Sindh (92).[22]
[20] CRSS Annual Security Report Special Edition 2013-2018 Center for Research and Security Studies March 2019 p. 15; 2019 Annual Security Assessment Report Pakistan Institute for Conflict and Security Studies 9 Jan 2020.
[21] Anti State Violence increased human losses decreased in 2020 PICSS Report. Pakistan Institute for Conflict and Security Studies 28 January 2020.
[22] CRSS Annual Security Report 2020 Center for Research and Security Studies 11 February 2021
109. DFAT[23] notes that in 2021:
[23] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, January 2022
2.34 Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, genderbased issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

110. The Pakistan Institute for Peace Studies (PIPS) report[24] discusses the political and security situation in Pakistan in 2021. In 2021 there was an increase in terrorist attacks by the TTP in Khyber Pakhtunkhwa but also intensified terrorist violence by Baloch insurgent groups mainly in Balochistan. Meanwhile, Islamic State Khorasan (IS-K) province also emerged as one of the key actors of violence and instability in Afghanistan and Pakistan during the year:
[24] Pakistan Security Report 2021; PIPS Jan–June 2022; Sr2021FinalWithTitles.pdf (pakpips.com)
Compared to 17 in the year before, the terrorists hit diverse targets of over 22 types in their attacks in 2021. However, they targeted security forces quite frequently. Out of the total 207 terrorist attacks recorded in 2021, as many as 137, or over 66 percent, targeted personnel, vehicles and posts of security and law enforcement agencies. Civilians were apparently hit in 16 attacks. Meanwhile, the terrorists targeted pro-government tribesmen and peace committees’ members in nine attacks; political leaders/workers in seven attacks; government officials, institutions, and state symbols in another seven attacks; polio vaccination workers and their security escorts in six attacks; and non-Baloch workers and settlers in Balochistan in five attacks. CPEC/Chinese workers were also targeted in four attacks. A combined total of three attacks targeted Shia and Sunni community members.

111. PIPS[25] notes:
[25] Pakistan Security Report 2021; PIPS Jan–June 2022; Sr2021FinalWithTitles.pdf (pakpips.com) p.20
For the second time since the year 2009, the number of terrorist attacks posted an upsurge in the year 2021; the first such exception happened in 2013. Otherwise there has been a gradual decline in the incidence of terrorist violence and consequent casualties since 2009. (See Chart 3 and Table 4) The continuous operational and surveillance campaigns by security forces and police’s counter terrorism departments (CTDs) and some counter-extremism actions taken under the National Action Plan (NAP) had apparently been contributing to the declining trend in the terrorist violence. But the reversal of this declining trend in 2021 suggests the militants have once again increased their presence and activities in Pakistan.
…
Terrorist attacks against civilians in KP fell significantly indicating militants’ changing tactics and targets; they preferred to hit security forces, pro-government tribal elders and political leaders, etc., more frequently, apparently thinking that targeting civilians could earn them more public wrath.

112. In 2021 KPK witnessed the highest number of terrorist attacks although the majority were in the twin Waziristan tribal districts and Bajaur tribal area. There was only one violent incident in Swat during the year, in contrast to the number of incidents in Waziristan, Bajaur and Peshawar.
113. Taking the findings made on the applicant’s history and profile and the country information on attacks on lashkars, the Tribunal finds that if the applicant returned to Pakistan now or in the foreseeable future he would not face a real chance of serious harm by way of targeted attacks by members of the TTP or any other terrorist group for reasons of previous involvement in a lashkar.
114. For reasons set out earlier, the Tribunal considers the applicant’s involvement in a lashkar, at the most, has been minimal and took place over 11 years ago. While country information indicates there has been an uptick in terrorist attacks in the KPK, that increase in incidents has mostly taken place in tribal areas of Waziristan, Bajaur and Peshawar. According to PIPS in 2021 there was only one incident in Swat.[26] Further the information indicates that the tactics of the TTP have changed in that they now appear to focus their attacks on government and security officials, pro-government elders and political leaders.
[26] Pakistan Security Report 2021; PIPS Jan–June 2022; Sr2021FinalWithTitles.pdf (pakpips.com) p.45
115. The applicant’s elder brother has moved back to [Village 1] and has not been threatened or harmed as a result of any family association with a lashkar. There is no evidence he has joined the lashkar and the Tribunal does not accept that the applicant will be obliged to join the lashkar if he returns. The Tribunal considers if the applicant returns to [Village 1] he will not face a real chance of serious harm for reasons of his previous activities.
116. The applicant claimed that despite having at least 13 trips to Australia in 2014 to 2016 that it was only in 2016 that he decided that the situation in [Village 1] had deteriorated to the extent that he decided to leave his ship and apply for protection. However, country information indicates that the number of terrorist attacks was decreasing significantly from 2014 to 2020[27] and does not support the applicant’s evidence. The Tribunal does not accept that he chose to leave the ship in 2016 and apply for protection because of increased terrorist incidents in [Village 1] and Swat Valley.
[27] Pakistan Security Report 2021; PIPS Jan–June 2022; Sr2021FinalWithTitles.pdf (pakpips.com) table 4 p21.
117. The applicant has lived for lengthy periods in [Village 1] and Karachi and, for reasons set out in this decision, the Tribunal does not accept that the applicant would face serious harm in either of those locations if he returned to Pakistan.
118. The applicant’s representative has made submissions on relocation, but it is unnecessary for the Tribunal to make findings on whether relocation is available to the applicant and whether such relocation would be safe and practical in all the circumstances.
119. In the context of his submissions on relocation, the applicant has raised the issue of discrimination against Pashtuns in other parts of Pakistan, and the Tribunal has addressed this issue as a possible claim arising from the material.
120. Muhammad Mushtaq, an academic from the University of Multan Pakistan, provided the following information on the ethnic diversity of Pakistan:
Pakistan is a multi-ethnic state. Each of its provinces is associated with a certain linguistic group; Punjab with Punjabis; Sind with Sindhis; Balochistan with Balochs; and North Western Frontier Province (NWFP after here) with Pashtuns. However, there are ethnic and linguistic divisions within every federating unit. Sindh is the most ethnically diverse province of Pakistan. Mohajirs form the majority in urban Sindh. Sindhis – sons of the soil – dominate the rural Sindh. Still, Pashtuns, Punjabis and Baloch also live in Sindh. Balochistan is the home province of Balochs and Pashtuns. There is also a considerable number of Siraikis and Sindhis in Balochistan as well. Punjab and NWFP [North-West Frontier Province] are also no more homogenous provinces. A considerable number of Siraikis are residing in southern part of the Punjab and NWFP hosts Hindko speaking and Siraiki populations as well.[28]
[28] 14 ‘Managing Ethnic Diversity and Federalism in Pakistan’, Muhammad Mushtaq, EuroJournals Publishing, 2009.

121. DFAT discusses the situation for Pashtuns in its most recent report:[29]
[29] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, January 2022
Pashtuns
3.13 The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair-skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns may also wear distinctive clothing, such as the red-and-black ‘Pashteen hat’, which has reportedly become a symbol of the Pashtun Tahafuz Movement (PTM). Pashtun culture emphasises tribal and family relations, as well as customary norms known as Pashtunwali. Pashtuns speak an Eastern Iranian language called Pashto. Most, but not all, follow Sunni Islam (see Turis, Bangash).
3.14 There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
3.17 Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan.
3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns (see Turis, Bangash).

122. The Tribunal accepts the country information which suggests that there is a significant level of racial profiling and stereotyping of Pashtuns in Pakistan. Various media reports have highlighted issues of anti-Pashtun sentiment and institutional racial profiling against Pashtuns within Pakistan.[30] As most members of the TTP are of Pashtun ethnicity, many Pakistanis see Pashtuns as potential terrorists.
[30] ‘Racial profiling: Constructing the “violent Pashtun” in our collective imagination’, Balach Khan, The Correspondent PK, 12 May 2021; The Diplomat is an international online news magazine covering politics, society and culture in the Indo-Pacific region and is based in Washington, D.C; URL: ‘Pakistan Declares War on Pashtun Nationalism’, Kunwar Khuldune Shahid, The Diplomat, 01 May 2019; ‘Pashtuns End Protest in Islamabad, Vow to Reconvene if Demands Not Met’, Nazrana Ghaffar and Madeeha Anwar, Voice of America (VOA), 09 February 2018; ‘Lawmakers protest “racial profiling” of Pakhtuns’, Express Tribune (Pakistan), 06 March 2017.
123. Notwithstanding, country information indicates that Pashtuns are represented at all levels of society and there are large Pashtun communities in the north west of Pakistan and in other areas of Pakistan. In 2019 DFAT[31] provided the following information on Pashtuns in their country report on Pakistan:
[31] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, s 3.28
Pashtuns comprise an estimated 15.4 per cent of the population of Pakistan, making them the second largest ethnic group in the country after Punjabis. Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, although many have migrated to urban areas. The largest Pashtun communities live in Karachi [located on the coastline of Sindh province], which hosts the largest population of Pashtuns in the world followed by Peshawar. Pashtuns also live in Balochistan, Islamabad, Lahore and other urban areas.

124. While the Tribunal accepts that members of the Pashtun community may be subject to racial and ethnic profiling the Tribunal does not accept that it necessarily follows that the applicant will be subject to targeted conduct which amounts to serious harm for reasons of his Pashtun ethnicity. He is not, and has not been, a member of any Pashtun terrorist group which would bring him to the attention of security authorities. His brother and other members of his immediate family live in [Village 1] and there is no evidence or claims that they have been mistreated or harmed due to their ethnicity. Prior to 2016 the applicant was working as a seaman with his base in Karachi. Further the applicant has lived in both [Village 1], Swat (KPK) and Karachi and country information indicates that both locations have large Pashtun populations. He also has family members in [Village 1] and the evidence indicates they would provide him with family support on his return.
125. The applicant also provided evidence regarding his son’s medical condition and his medical needs. The evidence before the Tribunal indicates that the applicant’s son has been receiving satisfactory medical treatment and therapy and supportive care from his immediate family. He also stated that while the immediate family treat his son well, that other members of the community have made derogatory comments about his son and his wife due to his son’s condition and he fears he would be treated the same way if he returned to Pakistan. If the applicant was subjected to such treatment the Tribunal considers it would be unkind and unfair, but the Tribunal does not consider it would amount to serious harm. Further he could provide much needed family support to his wife and family if he returned.
126. Having considered the claims, evidence and country information before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
127. The Tribunal is not satisfied that the applicant meets the refugee criterion. It must now consider whether there is a real risk the applicant will suffer significant harm if he is removed from Australia to Pakistan. “Significant harm” means that a person will be arbitrarily deprived of his or her life or suffer the death penalty or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
128. As set out above, the Tribunal has made findings that the applicant is an ethnic Pashtun male, that he was a member of the ANP, may have had some involvement in the [Village 1] village lashkar before 2011 and has a son in Pakistan with a disabling medical condition.
129. The applicant does not claim he engaged in any conduct which could give rise to a criminal charge in Pakistan. The Tribunal considers that the applicant has not engaged in any conduct which would result in him suffering the death penalty or be subjected to torture in Pakistan.
130. Country information indicates that Pakistan’s security situation has vastly improved over the last 10 years but has suffered a deterioration since the middle of 2021. Despite this, the number of terrorist incidents has significantly decreased since 2013[32] and remains much lower than levels of terrorist violence experienced in 2013 and 2014. If the applicant returns to Pakistan the Tribunal considers that the level of violent conflict in Pakistan is not such that there is a risk he will be arbitrarily deprived of his life.
[32] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, January 2022, Fig 1 p.14.
131. The Tribunal has found that the applicant had minimal involvement in the ANP and the village lashkar in Pakistan. He has not lived in [Village 1], Swat since May 2011 and has been working on commercial ships from 2012 to 2016 and during that period has lived and worked in Karachi. His family have lived in [Village 1] since 2011 and have not been mistreated by the government authorities or terrorist groups. Taking these findings into account the Tribunal does not accept that he would be subjected to cruel or inhuman or degrading treatment or punishment by either state authorities or by members of any militant groups operating in Pakistan.

132. The applicant claims that he may be subject to derogatory comments by members of his community due to his son’s medical condition. The Tribunal does not accept that such conduct would fall into the category of inhuman, or degrading, treatment or punishment.
133. The Tribunal has considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out in this decision, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk the applicant will suffer significant harm.
Conclusion
134. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION

137. The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT A
CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
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). 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).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…
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.
…
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 of 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 of persecution would not exist if it were assumed that the fear of 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.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…

[2022] AATA 1199

22 February 2022.

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal