1714363 (Refugee)

1714363 (Refugee) [2021] AATA 2508 (25 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1714363

COUNTRY OF REFERENCE: Pakistan
MEMBER:Tania Flood
DATE:25 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 May 2021 at 10:55am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Awami National Party member – peace committee member – opposition to the Taliban – race – Pashtun – kidnapping – fear of killing – claims of apostasy – party membership cards – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, 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 dependents.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 14 September 2015. The delegate refused to grant the visa as the delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Pakistan, on the basis of his claims to be a high profile member of the Awami National Party (ANP) who is wanted by the Taliban.
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 (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-LA, 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), which are extracted in the attachment to this decision.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Pakistan for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to the information contained in his application for a Protection visa, the applicant is [an age]-year-old citizen of Pakistan. He was born in [Village 1], Swat, located in Khyber Pakhtunkhwa, Pakistan. He lived at a single address in [Village 1], Swat District, in Khyber Pakhtunkhwa until 2009. He moved around various locations in Swat from 2010 to 2012. From February to December 2014, he lived in Rawalpindi, then returned to Swat until he came to Australia. He is of Pashtun ethnicity and a Sunni Muslim. He is devout and prays five times a day. He does not know where his mother and father are currently living in Pakistan. He has no family in Australia. He has no siblings and has never married or been in a de facto relationship. He completed primary and secondary school and college in Pakistan. He has not worked in Pakistan.
He arrived in Australia [in] July 2015 as the holder of a [Student] visa. On 14 September 2015, he applied for a Protection visa. On 28 June 2017 a delegate of the Department refused his Protection visa application.
In a Statutory Declaration dated 11 September 2015 and attached to his Protection visa application forms, the applicant made the following claims:
In March 2009, he and his family became Internally Displaced Persons (IDPs) because of a war between the Taliban and the army in his village. The Taliban was targeting members of the Awami National Party (ANP). His [Relative A], was a Member of the Provincial Assembly (MPA). His father was an ordinary member of the ANP but was close with the MPA and MNA, especially after his [Relative A’s] death.
His family fled to [a town in] Mardan, where the UNHCR assisted them and gave his father a card. In January 2010 they moved to his father’s friend’s house in [Village 2], Swat.
In August 2010, he and his family returned to their home village after the government had announced that it was safe to return. A few days after he returned, he became a member of a Lashkar in Swat, described as a ‘peace committee that tries to prevent the Taliban’. He went approximately eleven times with the Lashkar to search for the Taliban. When they would find Taliban houses, they would burn and destroy them. He would carry an AK-47 but he never used it.
The Lashkar finished in 2011 because the army left his Union Council, because it was safe. Once the army left, the Taliban returned to his village.
In May 2012, his [Relative A], was shot and killed by the Taliban in Karachi. He was killed because he was a member of the ANP and was an elder of the peace committee.
In October 2012, the applicant’s neighbour joined the Taliban. He told his neighbour that he should not join them, nor kill people. His neighbour told the Taliban about him.
In December 2012 he was kidnapped by the Taliban. Three jeeps came up to him at a cricket ground and asked for him by name. When he told them his name, they blindfolded him, put him in the jeep and took him back to a place they had converted into a jail. He was tied to a chair, fed food and water and had to ask to use the bathroom. They would ask him to join the Taliban and he would refuse. They beat and harmed him. They put wet cloths over his mouth to stop him from breathing and burned things in the room that made him cough. They told him that they knew he belonged to the ANP, that he had been a member of a Lashkar, and that he had told his neighbour not to join them. They also told him that he was [a specified number], and “when your number comes, I will cut your throat myself”.
On his third night he was able to escape. He did this by breaking one of the chair legs against the wall. He removed his blindfold, escaped and recognised he was in an abandoned [school] in his village. He was aware of the stream behind the school, and he followed the stream to [Village 3]. He stayed with his relatives in [Village 3] for two nights. He then went to [Village 4] for one night, [Village 5] for two nights, a hostel in Peshawar for one week, stayed with relatives in Peshawar for two weeks, went to Mardan for about nine days, and then back to [Village 3] for one year.
Fifteen days after he had escaped the Taliban, he was informed that his family home was destroyed and that his parents had fled to different places after what happened to him. He does not know where his parents are living and is unable to contact them.
He continued to move in fear that the Taliban would find him and kill him. He told his College what had happened, and they helped him finish his schooling. He attended one or two days a week to meet privately with a tutor and would wear a burqa to avoid being recognised. He completed College in May 2013 and applied for an ID card and passport.
In September 2013, he went though a consultant to try and obtain a student visa to Australia. He was staying with friends at a hostel in Rawalpindi at the time. In mid-2014, he found out the consultant never applied for the visa. The consultant admitted that he had never applied and gave him his money back.
About a month later he applied to two institutions, [named Australian institutions], to complete tertiary education in Australia. and was refused.
In December 2014 he moved to Peshawar where he lived in a hostel where other friends were living.
In early March 2015, he was approved to attend [a named] College in Australia.
In March 2015 he moved to [Village 4] where his aunty lives. He mainly stayed in the house like he did in [Village 3], Rawalpindi and Peshawar.
In his initial student visa application, he gave incorrect information about his migration and education history. He submitted bogus documents which changed the dates he finished school to one year later than what was on the original documents. He also submitted bogus property documents. He did this because he felt that he had no other choice and it was his only way to get to Australia.
He is unable to return to Pakistan because he was kidnapped by the Taliban, and because of his membership to the ANP and a Lashkar. He fears returning because of his membership of ANP and a Lashkar, and because he destroyed Taliban houses that they will find him and kill him.
He cannot relocate to FATA, Balochistan, and Karachi due to the strong Taliban presence. He cannot afford to live in Islamabad and cannot relocate to Lahore as he could not renew his identity card. In addition, he cannot live in Punjab as the Punjabis hate and harass Pashtuns.
Documents submitted to the Department
The applicant’s representative made a submission dated 15 September 2015. It was submitted that the applicant has a well-founded fear of persecution on account of his religion, imputed political opinion, and membership of the particular social groups of ‘ANP Members’, and ‘Lashkar Members’. The representative also provided country information published in 2014-2015 and extracted from sources including DFAT, the US Department of State, and the Asylum Research Consultancy. The information relates to ongoing violence and targeted attacks against ANP members and Lashkar members. In addition, the representative submitted country information from UNHCR and DFAT indicating that it is not safe for the applicant to relocate to the areas of FATA and Balochistan, Karachi, Lahore, and Islamabad.
The following documents were attached to the submission:
·Copy of a letter from the [an official] of the Awami National Party dated [in] July 2015. The letter states that the applicant and his family were compelled to leave their home for three years due to terrorism in the area and received threats from ‘unknown terrorists’ upon their return. The letter further states that the applicant went to Australia.
·Untranslated copies of the applicant’s identity documents, including his passport, National Identity Card, Lashkar Security Card and an Awami National Party membership card.
·Copy of the applicant’s Family Registration Certificate listing the names of the applicant and his parents.
·Copies of photographs of his [Relative B] and his home that has been destroyed.
The applicant’s representative made a further submission dated 17 April 2016. The submission refers to country information and extracts from sources including DFAT, the United Kingdom Foreign and Commonwealth Office, the Government of Canada, the Awami National Party and various news websites. The information notes that the security situation in Swat and the Khyber Pakhtunkhwa region is poor. Additionally, that members of the ANP have been subject to violence and it notes various incidents where members of peace committees or the ANP have been killed. The submission also provides information relating to the risk of harm faced by a Lashkar member or Pashtun migrant locating to Karachi or Punjab.
The following documents were attached to the submission:
·An email from the applicant’s representative to the Departmental officer, providing updated information about the applicant’s claims. The email states that the applicant’s [Relative B] was kidnapped from a mosque and killed by the Taliban in February 2016. The applicant claims the motivation was to ‘give the location of me and my father’.
·Translated news article (unnamed and undated publication) reporting on the abduction and murder of [Relative B] and mentioning the applicant.
·Photograph purported to be of the applicant’s [Relative B].
·Translated copy of the applicant’s security pass.
·Translated copy of the applicant’s Awami National Party Pakhtunkhwa membership card.
·Translated copy of a National Identity Card issued by the Government of Pakistan to ‘[Relative B]’.
·Copies of maps showing the Swat region of Pakistan.
·Translated copy of the applicant’s National Identity Card issued by the Government of Pakistan [in] 2013 and listing his address as ‘[specified in Village 1], Swat District’.
·Copy of a letter from [name], [an official] of the Awami National Party dated [in] April 2013. The letter states that a person named [Party Member A] and his family were compelled to leave their home for three years due to terrorism in the area and received threats from unknown terrorists upon their return. That person then relocated to Australia.
·Copies of the applicant’s secondary school records from Pakistan.
·Copy of a card titled ‘Government of Pakistan International Certificate for Polo Vaccination’ issued to the applicant.
·Untranslated copy of an identity card.
Protection visa interview
On 19 April 2016, the applicant attended an interview with the Department. The interview was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was given additional time after the interview to provide further information to support his claims. Following the interview, the applicant’s representative submitted the following documentation:
·Copy of a letter from the [an official] of the Awami National Party dated [in] April 2016. The letter states that the applicant’s [Relative A], was elected for a core position in the party before he was assassinated in 2012. After this, the applicant’s father joined the ANP until the applicant was kidnapped by the Taliban. The letter states that the family home was doomed and the family was separated and went into hiding.
·An untranslated document claimed to be a ‘death report’ related to the applicant’s [Relative A] who was killed in Karachi in May 2012.
·Copy of a photograph of the applicant’s [Relative A].
·Copy of an undated, translated news report from an unnamed source. The translated document states that extremists in [Village 1], Swat, entered a mosque and questioned [Relative B] about [the applicant and his father] ‘who were wanted by the Taliban’. It further states that when [Relative B] failed to provide the information, he was abducted and killed.
Submissions to the Tribunal
On 19 March 2021 the applicant’s representative made a submission to the Tribunal repeating the applicant’s claims to fear persecution due to his religion, political opinion (as an ANP member) and membership of particular social groups of ‘ANP Members’ and ‘Lashkar Members’. Additionally, the representative submitted that the applicant would be targeted on account of his imputed political opinion arising from his ‘family’s politics’. The representative stated that the applicant is now in contact with his mother and father. His mother resides in [Town 1], but his father moves from place to place, [between two named places and] Peshawar, and [Village 4].
It is accepted that the letters of support for the applicant’s membership of the ANP do not state that he was a member. However, it is submitted that his membership card, country information and written and oral claims are consistent with his membership of the ANP.
The representative provided extracts from the 2019 DFAT Report to support the claim that ANP members are the target of politically motivated violence from militant groups, and that ANP members ‘face a moderate risk’ of terrorist related violence.
It is noted that the delegate accepted the applicant’s membership of a Lashkar for a five-month period in 2010-2011. It is submitted that it is plausible the Talib would continue to bear a grudge against the applicant for his involvement in the Lashkar including involvement in destroying houses of the Taliban with the Army.
With reference to information from online sources outlining the average cost of living in Islamabad, the representative stated that the applicant cannot afford to relocate to Islamabad because it is very expensive and employment opportunities are limited. The representative referred to guidelines published by the UNHCR indicating that it is not reasonable to expect a person to relocate to an area in which they would face economic destitution. The submission also refers to information from online news articles published in 2017 and the 2019 DFAT Report which indicates that it is not safe for Pashtuns to relocate to Karachi, Lahore, Punjab, and Islamabad, due to ethnic profiling, harassment and official discrimination.
The representative also submitted a large number of news articles to the Tribunal. The articles are dated variously between January 2016 and March 2021 and published online by news sites including Reuters, Dawn, Al Jazeera, and Pakistan Today. The articles report on terrorist attacks including attacks targeted at anti-Taliban political leaders in Swat and Khyber Pakhtunkhwa, as well as ethnic bias, profiling, and targeting of Pashtuns in Pakistan, particularly in Punjab and Lahore.
Tribunal Hearing

The applicant appeared before the Tribunal on 26 March and 5 May 2021 to give evidence and present arguments in support of his case. During those hearings the Tribunal discussed with the applicant his background in Pakistan, the claimed events and past harm he said took place in Pakistan, his reasons for leaving Pakistan and his claimed fears of returning to Pakistan. His testimony is summarised as follows:
The applicant testified that he was born in [Village 1] in SWAT, Pakistan. He said that he last resided at his aunt’s house in [Village 4], SWAT from March to July 2015. As to the whereabouts of his parents he initially said his mother is residing in [Town 2] and his father moves between [a named place], [Village 4 variant] and Peshawar. When the Tribunal stated it appeared from his submissions that his mother is residing in [Town 1] he corrected his evidence and said that she used to live in [Town 2] but now lives in [Town 1] with her brother. He said that [Town 2] and [Town 1] are closely situated.
The applicant was asked why his father is residing separately to his mother and he said that the Taliban are still present in the area where his mother is living and it is dangerous for his father to be there. He said that his mother has had a number of [surgeries] so she cannot move around like his father.
The applicant testified that his father is old and is unable to work anymore. He said he cannot afford a secure place to live and is in hiding from the Taliban which is why he moves from place to place. He said his father is supported by friends and sometimes he goes to [Village 4 variant] where his aunty lives. The applicant said that he and his mother’s brother assist his father financially.
The applicant testified that his father previously worked in [Country 1] for many years and only settled back in Pakistan permanently after [Relative A’s] death in 2012. He said his father had a heart condition which made it difficult for him to continue working in [Country 1]. He said that during the years he worked in [Country 1] his father came back to Pakistan to visit them for two to three months each year.
The applicant testified that he is an only child. He said he has [aunts] in [Village 4] and Peshawar and [an] uncle in [Village 1]. He said his mother has [relatives] who live in [Village 3] and [Town 1]. He said he has two deceased [specified relatives]. [Details removed of these families].
The applicant testified that he completed his college education in Pakistan in May 2013 at [a named] College, in [Town 3], SWAT.
The applicant testified that he did not complete any study in Australia. He said initially he was supported by friends but later started working in a [business]. Currently, he said he is working as an [occupation 1] earning a gross salary of $1,500 to $2,000 per week. He said he has amassed savings of between $10,000 and $15,000.
The applicant testified that he obtained the passport he travelled to Australia on from the passport office in [Village 4], SWAT. He said he personally travelled to the passport office to have his photographs taken.
The applicant testified that he obtained a National Identity Card when he turned [age]. He said the card was issued in [Town 3], SWAT.
As to why he fears returning to Pakistan the applicant stated that the Taliban are still present in SWAT and in the whole of Khyber Pakhtunkhwa Province. He said he will not be safe anywhere because the Taliban know he assisted the army to identify dozens of Taliban houses and passed on information to the military such as the names of Taliban families. He added that he and his family members were also ANP members. He said that after his [Relative A] was killed he quarrelled with a neighbour and told him the Taliban were oppressing people. He said the neighbour informed the Taliban of this and if they find him they won’t forgive him for that. He said that according to the Taliban he is considered to be a person who has left the religion.
As to his family’s involvement with the ANP he said that when his father was working in [Country 1] he didn’t have much time for politics. He said that in the beginning he just provided some support during elections but after his [Relative A] was killed and he left [Country 1] he joined the party in 2012. He said [Relative A] won an election at the union council level and was elected to the Provincial Assembly. He said local people frequently came to his family’s guesthouse to discuss their issues with [Relative A]. The applicant was asked if his father held any position in the ANP. He said that there was discussion of him running for election but he didn’t do that because he didn’t have the financial means to hire security and in any event their house was destroyed and he was hiding from the Taliban.
As to his own involvement in the ANP, the applicant said that it was a gradual progression from childhood. He said that during elections he used to put up ANP banners and flags and gave out caps to people. He said after his family was displaced and they later returned home he increased his involvement with the ANP. He said that he fully joined the party in 2010. When asked to describe his political activities the applicant said that he worked with the army to identify Taliban houses. He said he went with his father and [Relative A] to ANP leaders houses for meetings. He said that Union Council meetings took place in their own guesthouse. He said he also encouraged people to join the ANP and attended other political events.
The applicant was asked if he is still a member of the ANP. He said he hasn’t shown any interest in politics since arriving in Australia and has not continued in his membership. When asked if he would renew his interest in ANP politics if he is required to return to Pakistan he said he would not because it would be difficult to show support as he doesn’t have the means to obtain security for himself. He said however that he supports the ANP because it protects the rights of Pashtuns and supports a secular political system. He added that his family have supported the ANP since his childhood. The applicant was asked if he or his father encountered any harm prior to 2012 because of their affiliation with the ANP and he said they did not.
The applicant stated that there are three villages in local union council area of which [Village 3] and [Village 1] are two. He said his union council is surrounded by mountains and when the Lashkar ended the Taliban moved to the mountains. He said the military established checkpoints in front of the union council and went on regular patrols. He said local people in groups of ten were also recruited to provide security. He said that when the military removed the checkpoint in 2011 and moved to [Town 3] the Taliban returned to the area.
The Tribunal put it to the applicant that all the evidence provided prior to the hearing indicates that he and his father joined the ANP after his [Relative A’s] death in 2012 whereas he has now claimed he joined the party in 2010. He replied that he provided support to the ANP since he was a child but it was only after his [Relative A] was killed that the party issued membership cards to him and his father.
The Tribunal put it to the applicant that the membership card he has provided as evidence raises some concerns because it has no issue or expiry date. He replied that this is how it is in his area. He said a family joins the party and that membership is for life. He said the party issues a card with a stamp and signature of the party leader.
The Tribunal discussed with the applicant some concerns in respect of the 3 letters of support he has provided from the ANP. The Tribunal pointed out that the letter which is dated [in] April 2013 appears to have been written for a [named Party Member A]. He replied that [Party Member A] is an ANP member who currently lives in Melbourne. He said [Party Member A] advised him to contact the party leader in his area to get a letter similar to his.
The Tribunal pointed out to the applicant that the letter dated [in] July 2015 makes no mention of his or his father’s membership of the ANP and furthermore is worded exactly the same as the letter written for [Party Member A] despite being signed by a different person. He replied that he sent a letter to his cousin asking him to get someone to issue a letter in the same format as the letter written for [Party Member A].
The Tribunal also pointed out to the applicant that the third letter of support from the ANP which is dated [later in] April 2016 refers only to his [Relative A’s] and father’s membership of the ANP and makes no mention of his own claimed membership of the ANP. He replied that he has a party card despite that the letters don’t say he was a member of the party. He added that the letter shows his family were involved.
The Tribunal also put it to the applicant that his written statement of claims suggests that his father and [Relative A] were members of the ANP at the time war broke out between the Taliban and the army in 2009 whereas it is now claimed his father became a member in 2012. The Tribunal also pointed out that he had earlier said his father didn’t have time for politics while he was living in [Country 1] up until 2012. He replied that in March 2009 the army launched its operation in SWAT and everybody was displaced to other areas. He said there were some areas in SWAT where people remained and where union council was located. He said in January 2010 his family returned to [Village 2], an area which had been cleared of the Taliban. He said other people returned to different areas of SWAT.
The Tribunal asked the applicant why the party only saw fit to issue him and his father membership cards in 2012. He said his [Relative A] was the family member at the forefront of the party. He said after his [Relative A] was killed the party told his father that he would be the leader and his son would work with him for the union council.
As to his membership of the Lashkar, the applicant said he moved from [Village 2] to [Village 1] in 2010. At this time the military came and gathered the leaders of the union council to assist them to identify the Taliban. He said one member from each household was nominated to join the Lashkar to undertake this work. He said it took five months to identify the Taliban houses but he was not involved in Lashkar activities every day. He said he only got involved when called upon by the military which was about ten times to identify the houses to be demolished and once when he was asked to assist to transport military goods to posts in the mountains. He said he was [age range] years old at the time. He confirmed he came to no harm while performing his Lashkar duties.
The Tribunal referred to the security card provided by the applicant as evidence of his involvement in the Lashkar. The Tribunal noted that the Identity Card number of that card is different to the Identity Card number which appears on his National ID card and the ANP membership card. The applicant replied that he was underage at the time and his father’s number was used on the security card.
The applicant was asked where his father was born and he replied in [Village 1]. The applicant was asked if it is correct that the first 5 digits of the CNIC number related to the district of the person and he agreed. The applicant was asked why the first five digits of his and his father’s CNIC are different then. He replied that [Number] which is the number on his father’s card is the number that was used before. He said it later changed to [Number plus 1] and then [Number plus 2]. He said this might have had something to do with population growth. After the hearing the applicant submitted that the first 5 digits for everyone in [Town 3] was [Number]. He said that these digits were changed to [Number plus 2] and therefore all young age card numbers are [Number plus 2] while their parents are [Number]. He said he obtained this information from Nadra. The applicant also provided a translated copy of his father’s CNIC card.
The applicant was asked about the claimed kidnapping incident in 2012. The applicant repeated his testimony about arguing with a neighbour over the Taliban. He said that his neighbour informed on him and in December 2012 he was kidnapped from the cricket ground. He said he was taken to a place where he was tied to a chair and detained for 3 days. He said he was tortured in different ways. He said they burnt hay in the room to create smoke, put wet towels on his face and tried to convince him to commit a suicide attack on the military. He said that they told him they would kill him if he didn’t do it. He said that on the third day he managed to release himself and was fortunate that nobody was around at the time. He said he broke the chair and when he removed his blindfold he realised he was in a [school] which has previously been destroyed by the Taliban. He said he knew the school because he previously played [a sport] there. He said he followed a stream behind the school and walked to his [relative’s] house in [Village 3]. He said he stayed with [this relative] for 2 nights and then went to [Village 4 variant] and to other places, including [Village 5] and Peshawar before returning again to [Village 3]. He said he remained living with [this relative] in [Village 3] for one year where he managed to complete his studies. He said his [relative] arranged a tutor for him and informed the college about his situation. He said he went once or week or less often to the college to collect study notes.
The Tribunal asked the applicant why he didn’t go immediately to report the incident to the military. He said that the military had already finished their work in the area and he would not have been able to get support in [Town 3]. He said his [relative] informed the military about what happened and they said they could not provide him with security. The Tribunal put it to the applicant that on the contrary the military, whose aim it was to rid the area of the Taliban, might have been very interested in his experience. He replied that when his [relative] contacted the military they went out and carried out a search but couldn’t find the perpetrators because they left and went to the mountains.
The Tribunal put it to the applicant that it is concerning that he only mentioned the involvement of the military at this point in the proceedings. He said that he mentioned the things relevant to him and the Taliban told him that because he has left the religion he would go to hell unless he agreed to do the suicide attack. The Tribunal pointed out that his evidence in respect of the suicide attack appears illogical as terrorists generally recruit suicide bombers from within their own ranks rather than attempting to persuade their opponents to carry out such actions. The applicant agreed but said they were preaching to him about making that sacrifice. He said he was young and they were trying to brain wash him.
The Tribunal noted that following this event he decided to remain in [Village 3] to complete his education which is very near to where the kidnapping occurred and suggested this might have been very risky in the circumstances. The applicant agreed it was very risky but said he didn’t have another option. He said other people were not willing to help him whereas [this relative], who had also lost family members, was willing to do so. He said he mainly stayed in his room for that entire year. He repeated his testimony that he travelled to the college and back disguised in a burqa. The Tribunal asked the applicant how he was able to pull off that disguise given he is a rather tall man. He said he was mostly sitting in the car and entered the college through the staff parking lot. He said he was accompanied by his [relative] most of the time. Noting his claim to have had a private tutor to assist him to complete his studies the Tribunal asked why it was necessary to go to the college at all. He replied that he only went there to get some notes or assessments. The applicant confirmed that his [relative] paid for the tutoring and all his expenses.
The Tribunal asked the applicant what happened to his family home. He said the Taliban mined the house and destroyed it. He said his [Relative A’s] guesthouse was also destroyed. The Tribunal advised the applicant that it is not possible to ascertain from the photographic evidence he has provided whose house it was and/or whether it was demolished in the manner claimed. The applicant agreed.
The Tribunal asked the applicant why his father was forced to go into hiding at that time. He said his father was linked to his politically active brother and to him. He said the Taliban told him his whole family were infidels. The Tribunal noted that his evidence is that he had family in nearby [Village 3] and asked why they were not targeted by the Taliban. He replied that the Taliban were looking for him and that [relative’s] family.
The applicant was asked why the Taliban were not able to locate him in [Village 3]. He replied that they must have looked for him on the streets and roads but did not know he was at [this relative’s] house. He repeated his testimony that he stayed confined to his room for a year.
The applicant testified that he left [Village 3] in February 2014 and moved to Rawalpindi because he was suffering from depression. He said his [relative] arranged for him to stay in a hostel with other young boys who were there studying. He said he stayed in his room and only socialised with three other boys who knew about his situation.
The applicant testified that he engaged an agent to assist him to obtain a visa to come to Australia. He said he paid the agent 1.1 million rupees but he later heard from people that the agent had not ever applied for the visa and he took back the case. He said he then applied to [two Australian institutions] but his applications were refused. He said he then applied to [a named] College and was offered a place. He said he secured a visa and came to Australia.
The applicant was asked how he managed to locate not one but two agents while living in hiding and he said that he was assisted by his [relative] and his friends in the hostel. He said it was his friends who found out that the first agent had never lodged the application. The applicant confirmed that he personally met with both agents and travelled to Islamabad to have fingerprints taken. He said he travelled by taxi.
The Tribunal asked the applicant how he obtained the family registration card which he provided in submissions. He said he got it from an office in [Town 3] where they issue identity cards. He said he applied for it at the time he went to get his ID card and his [relative] later collected it for him. The Tribunal pointed out that the ID card and the family register document were issued two years apart. He replied that he submitted the application an when the need arose for the visa his [relative] went to get it.
When the applicant appeared before the Tribunal on 5 May 2021 he expanded on the reasons why he will still be of interest to the Taliban in Pakistan. He said that through his [Relative A’s] connections he had access to the army and therefore he was considered of use to the Taliban. He said when they captured him in 2012 they tried to cultivate his support for this reason. The Tribunal stated it is difficult to accept the Taliban thought they would be able to persuade a person from a family who openly opposed them to come over to their side. The applicant replied that he was underage at the time and the Taliban tried to brainwash young people.
In addition, the applicant stated that he was personally involved in helping the army to identify approximately [number] Taliban houses which were subsequently destroyed. He said the army arrested many Taliban people and some were even killed. He said even some innocent family members were affected. He said those families continue to bear a grudge against him and will try to get revenge if he returns.

Noting the submission of a translated copy of his father’s CNIC card after the first hearing the Tribunal asked how the applicant had obtained the evidence. He said that he had a colour photocopy of his father’s ID card since the time when he was applying to get a visa to come to Australia. The Tribunal put it to the applicant that the card was issued in 2014 some two years after his father supposedly went into hiding. The applicant replied that his relatives assist his father whenever documentation is required to be renewed. He said that it is not necessary to present in person to obtain a renewed ID card.
As to his movements in Pakistan before coming to Australia the applicant stated that he moved from Rawalpindi to Peshawar in January 2015. He said that was because the friends he was living with in Rawalpindi went away on holidays and he could not afford to remain living in the accommodation alone. He said that from Peshawar to moved to stay with his aunt in [Village 4 variant] from March 2015 until he departed for Australia.
When asked he encountered any problems in either Peshawar or [Village 4] the applicant said he did not because he was always in his room. He confirmed that [Village 4] is just 20-25 kms from his home village. When asked why he took a risk to return to an area so close to his home village he said that his [relative], who had supported him all along, advised him to do that. When asked what reason his [relative] gave him he said that it was considered best to go there in case any other documents needed to be obtained for his travel to Australia. The Tribunal put it to the applicant that it might have been safer to remain in Peshawar and only return in the event that was necessary rather than move to [Village 4] on the off chance that further documents might be needed. He replied that he had to follow the advice of his [relative].
The Tribunal discussed with the applicant the circumstances of the deaths of his two [specified relatives]. He said that his [Relative A] who was active in ANP politics was shot dead in Karachi in 2012. He said they didn’t know who was responsible for his death but when he was captured by the Taliban they told him they had killed his [Relative A] and he would be next. The Tribunal asked why they wouldn’t have immediately killed him if that was the case. He said they told him they had a list of persons to be killed and when his number came up they were going to kill him. He said that they tried to persuade him to join them by saying he could avoid dying an unbeliever.
The Tribunal asked the applicant if he has any independent evidence to verify his [Relative A’s] position in the ANP and/or the circumstances of his death. He said he had tried to find some news articles but was unable to.
The Tribunal referred to the evidence produced by the applicant in respect of the murder of his other [specified relative]. The Tribunal notes that the evidence is a translated news report from an unnamed and undated source. The Tribunal indicated that it was not a very strong piece of evidence and noted that country information about fraudulent documentation in Pakistan mentions falsely written news articles. The Tribunal put it to the applicant that it might not afford weight to the evidence. The applicant agreed with the Tribunal’s observation. He said that the family of his murdered [relative] think that he and his father are responsible for his death and have not assisted him to provide other evidence.
The Tribunal also put it to the applicant that it is difficult to understand why his [Relative B] was targeted in 2016 in connection with his and his father’s activities and not in 2012 when the problem arose. The applicant replied that people had been harassing and threatening [this relative] all along. The Tribunal stated that it is difficult to accept his [Relative B] was targeted in this way for such a long period of time and he again referred to the profile he developed through his work with the Lashkar.
The Tribunal put it to the applicant that his evidence is that he lived for a long period of time with his [relative] in [Village 3] and with [an aunt] in [Village 4] and yet the Taliban didn’t threaten those relatives. The applicant said that in [Village 4] he stayed with his [one specified relative] whereas in [Village 3] he lived with his [another relative]. He said that the Taliban must have looked for him on the roads and streets but because he was living in hiding they did not find him. He said the situation in [Village 4] was a bit more secure because there was an army base nearby. He said he was nevertheless scared everyday that he remained in Pakistan.
The Tribunal put it to the applicant that he was just one young member of the Lashkar and not a leader and asked him why the Taliban would target him for this involvement. The applicant stated that the problem is because of his relationship with his [Relative A]. When the Tribunal pointed out his [Relative A] is long dead he again referred to his claimed fear of harm from the affected families whose houses were destroyed with his help.
The applicant stated that his [Relative A] and two other elders were the leaders of his Lashkar. When asked what has become of the other two elders he said that one has moved to [a named country] and the other is a rich person and has a lot of bodyguards to protect him.
The Tribunal asked the applicant what he knows about the other ordinary Lashkar members and he said there were hundreds of them and they came from all over SWAT. When asked if these members had been similarly targeted by the Taliban he said that the Taliban were interested in the leaders. He referred to a recent killing of a Lashkar leader in [Village 4 variant].
The Tribunal discussed with the applicant country information which indicates the situation in SWAT and Khyber Pakhtunkhwa Province has changed considerably since he departed Pakistan in 2015. The Tribunal pointed out that the government has reclaimed more control over the province since he left and that the Taliban splintered and many fled to Afghanistan. The Tribunal noted that while sporadic attacks do occur against political and policing figures the number of incidents has reduced in keeping with the pattern across the country. The Tribunal stated that the majority of attacks which do occur now appear to be against security and law enforcement agencies. The Tribunal also pointed out that in recent years, there have been very few incidents reported in SWAT and that a survey of security incidents based on SATPs monthly monitoring reports over the last 18 months shows just 3 events in SWAT. The Tribunal also referred to a recent news article from 2020 which talks about the changes which are taking place in SWAT and heralds the SWAT valley as a success story in Pakistan.
The applicant responded that he agrees with much of the Tribunal’s analysis. However, he asked whether it is possible to say that the security situation is now 100% safe and secure. He said that even so the families whose houses were destroyed will still seek to harm him if he returns home.
The Tribunal also discussed with the applicant a 2020 PIPS report which indicates only 9 attacks against pro-govt tribesmen/elders and peace committee members, none of which occurred in SWAT. The applicant responded that an elder of [Village 4 variant] Lashkar was killed last year and in recent months the police captured Taliban members operating in SWAT. He said there are confirmed reports that the Taliban are regrouping in the area. He undertook to provide further evidence of these events after the hearing.
The Tribunal discussed with the applicants DFAT’s reporting on the situation for ANP members. The Tribunal pointed out that DFAT assesses that there is a moderate risk of harm for ANP members in terror related violence and a moderate to high risk of harm for ANP leaders. The Tribunal stated that the risk of harm to ANP members appears to be dependent on an individual’s political profile. The Tribunal put it to the applicant that it has been several years since he last engaged in any support for the ANP and it therefore appears he would not have a political profile which is likely to result in him being harmed. The Tribunal added that it is also difficult to accept his father has a high political profile given he was absent for so many years in [Country 1] and has supposedly been living in hiding for 7-8 years.
The applicant responded that he agrees he was not a high-profile member of the ANP in Pakistan as he was quite young. He said however that because of his [Relative A’s] role his family is closely associated with the ANP.
The Tribunal aske the applicant whether the people whom he fears in SWAT would be able to find him in other parts of Pakistan. He said that Pashtun culture encourages an interest in other people’s affairs and backgrounds. He said that Pashtun people ask for background information during conversation and through this talk can easily get to know where each other are from. He said that if he attempted to move somewhere else in Pakistan people would know with ten days where he is from.
The Tribunal put it to the applicant that his response appears to be at odds with what he claimed occurred in Pakistan in that he appears to have lived for three years under the nose of the Taliban before moving to Australia and his presence was never revealed. He said this is because of the way he was living, without contact with anybody outside of his family.

100. The Tribunal put it to the applicant that it is difficult to accept that a young boy of [age range] years of age lived such a secluded life for three years. Furthermore, the Tribunal pointed out that his own evidence suggests that he moved to various locations and made return visits to SWAT and even went to Islamabad to obtain documentation needed to leave the country. The Tribunal noted that his movements in Pakistan appear to undermine his claimed level of seclusion.
101. The Tribunal discussed with the applicant the possibility of him relocating to other parts of Pakistan in order to avoid potential harm from the Taliban and/or Taliban families in SWAT. The applicant stated that the only safe area to live in Islamabad is the red zone which is upper class and very expensive. He said he could not afford to live in that area and would be forced to live in rough conditions in other parts of the city. He said that because he is Pashtun the police will harass and torture him and ask him for bribes. The Tribunal stated that it is difficult to accept that all Pashtuns living in Islamabad are tortured by the police. He agreed that Pashtuns are living in Islamabad but said they are people with a high income.
102. The Tribunal put it to the applicant that his evidence is that he has between $10,000 and $15,000 in savings currently and this money would likely assist him to establish himself in Islamabad while he searched for work. The applicant responded that being a Pashtun would make it difficult for him to find work and even if he found some [occupation 1] work his salary would not support him living in Islamabad.
103. The Tribunal put it to the applicant that the city of Karachi also has a huge Pashtun population. He replied that those Pashtuns would be from [Town 3], [Village 3], other parts of SWAT. He said that if he went to Karachi to live the Pashtun community will soon start talking and the Taliban could easily come to know he is there. He said he would also encounter the same police harassment in Karachi.
104. On 12 May 2021 the Tribunal received a further submission from the applicant. The submission references five news articles in respect of killings which have occurred in SWAT District on various dates in 2019, 2020 and 2021. These include:
-    26/2/20: a journalist and member of a peace committee was shot dead by unidentified assailants.
-    4/4/20: unidentified gunmen killed a leader of the ANP in Matta Tehsil.
-    12/12/19: unidentified assailants shot dead a Pakistan Muslim League-Nawaz local leader.
-    17/3/21: suspected terrorist in an alleged terrorist attack on an army vehicle killed in Kanjo area.
-    4/4/21: Four terrorists arrested in Matta.

105. The submission also references other sources noting the targeting of ANP members by the Taliban in recent years.
106. It is submitted that several sources confirm a regrouping of terrorists in SWAT:
-    The Express Tribune, 20 May 2020: KP police chief is quoted saying militants trained in Afghanistan are reorganising in SWAT.
-    Dawn, 17 December 2020: ANP claims terrorists regrouping in areas including in SWAT.
-    Sayhoon News, 11 February 2021: ANP leader is quoted saying there are reports of militant regroupings in Buner and SWAT.

107. The submission also references EASO, Country of Origin Information Reports from 2018 and 2020 which mention the presence of the Taliban and other militant groups in Karachi and Sindh.
108. The submission further states that the applicant advises he will be a mobile phone, internet and social media as is required nowadays and therefore he will not remain anonymous in other parts of the country.
Background information on conflict in SWAT and KP
109. The Taliban in SWAT emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement which formed in 1989.[1] Maulana Fazlullah assumed control of the TNSM in 2001 and was widely known for his use of illegal FM radio stations in SWAT to broadcast TNSM demands.[2] When Tehreek-e-Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA), in 2007 (now part of KP), Fazlullah was named emir (leader) of the SWAT Taliban. Although the TTP and TNSM were not operationally linked at that time, they were allied and TNSM militants in SWAT were also referred to as the SWAT Taliban.
[1] Khattak DK 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.
[2] Ibid; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organisation and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies.
110. The KP Provincial Government entered into a number of ceasefire agreements with the TSNM from 1994 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 and displacement of the local population.[3] 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.[4] 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 4,000 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 (IDPs) in the month after the offensive commenced.[5]
[3] Khattak DK 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.
[4] Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organisation and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies.
[5] Macey, J. 2009, “Desperate Swat Valley Situation Revealed’, ABC news, 1 June
111. Since then, DFAT reports that the Pakistan armed forces have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan, former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups. An attack in December 2014 led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. Local observers, including officials in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.
112. The TPP reportedly fragmented into at least four groups in 2014, and more since, with the defections reported to have left it lately described as “beleaguered” and in disarray.[6] A rump of the splintered TTP was reportedly forced to move out of KPK province and into Karachi by 2015.[7] Pakistan Today, reporting on 30 May 2018, gave a positive view of the merger of FATA into KPK province, with particular reference to the benefits that the rule of law would bring over time based on observations about the success of the process since taking back the province from the grip of Taliban influence in 2013-2014.[8]
[6] “Isis ascent in Syria and Iraq weakening Pakistani Taliban”, The Guardian, 23 October 2014
[7] “Back from the brink”, The World Weekly, 22 October 2015
[8] “Greater KPK”, Pakistan Today, 30 May 2018
113. With the Pakistani government having reclaimed more control over KP province, the splintered Pakistani Taliban reportedly had to seek refuge in Afghanistan, although not without sporadic attacks on political and policing figures. A 2018 news article published in the Diplomat reports:
“The operational capacity of the TTP [Tehreek-e-Taliban] is, today, a lot more limited than what it was before the military operation was launched," says Simbal Khan, an Islamabad-based security analyst.
"Zarb-e-Azb has succeeded in eradicating bases within Pakistani territory, where they had networks, support and logistics."
The Pakistani military says it has now reclaimed the tribal districts from the Pakistan Taliban's grip, re-establishing the writ of the state and pushing the Tehreek-e-Taliban's fighters across the border into eastern Afghanistan, where they are suspected to be based out of Nangarhar and Kunar provinces.
Hakeemullah Mehsud's successor as Pakistan Taliban chief, Mullah Fazlullah, was killed in a United States' drone attack in Afghanistan's Kunar province in June. The group has since installed Noor Wali Mehsud as its new leader.
"Pakistan has repeatedly shared both information and intelligence with Afghanistan as well as [NATO] authorities regarding [the Tehreek-e-Taliban's] presence/safe havens inside Afghanistan," the military said in a statement emailed to Al Jazeera. "They are living there due to small presence of force on ground owing to lack [of] capacity."
The shift across the border, analyst Khan says, has limited the group's ability to attack government and civilian targets as frequently as it used to, forcing it to change its tactics.”[9]
[9] “Pakistan’s Anti-Taliban Party on the Hit List Again,” The Diplomat, 12 July 2018
114. As elsewhere in Pakistan, KP province has recorded an overall gradual decrease in the attacks caused by extremist groups. For example, a comparison of Pak Institute for Peace Studies (PIPS) reports for KP province reveal that in 2012 there were 844 terrorist attacks (causing 1,032 deaths and 2,176 injuries) whereas in 2020 there were 79 attacks (causing 100 deaths and 206 injuries). In 2020 the majority of the attacks (50) targeted security forces, while as many as eight attacks hit civilians, and a combined eight attacks were directed against tribal elders and political leaders/workers, while the Shia religious community was hit in four attacks, and a single attack targeting a madrassa claimed eight lives.[10] Both PIPS and the Fata Research Centre (FRC) reported that the bulk of incidents in 2020 continued to occur in one specific district: the former FATA area of North Waziristan.[11] A survey of security incidents based on South Asia Terrorism Portal’s (SATP’s) monthly monitoring reports January to December 2020 shows just three security incidents occurred in SWAT. Two peace committee members were killed in one incident in KP.

[10] PIPS, “Pakistan Security Report 2012” January 2013; PIPS, Pakistan Security Report 2020, January 2021
[11] PIPS, “Pakistan Security Report 2020”, January 2021; FRC “KP Tribal Districts Annual Security Report 2020”.
115. A 2020 news report describes how the SWAT Valley went from being a basket case to being on the mend. Reporting on the situation in the town of Mingora, the author describes how an area once known as “bloody intersection” is now bustling with new development funded by the provincial and federal government, international NGOs and agencies such as the US Agency for International Development and the government of the United Arab Emirates. Muhammad Faruq, the director of a school is quoted as saying “These days, all signs of the Taliban have disappeared”. It used to be the case that fear, and a Taliban-imposed curfew, confined people to their homes after 8pm. A decade later, nights in Mingora are alive, loud, and brightly lit by streetlights, neon signs, and storefronts. Markets and restaurants stay open late. Musicians and dancers have returned. Families stroll down the winding paths of the Fiza Gatt park which stretches along the river. “Swat is unrecognisable now” quotes a local schoolgirl interviewed by the author. The report nevertheless notes, that there is still a permanent military base on the outskirts of the city and the targeted killing of a local politician in December by unidentified gunmen, the first in four years, is a reminder that the security situation is still, in some ways, tenuous.
FINDINGS AND REASONS
Country of reference
116. The applicant produced his Pakistani passport when he appeared before the Tribunal. It confirms his claimed identity and nationality. Based on this, and in the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Pakistan.
ANP involvement
117. The ANP is a secular Pashtun nationalist political party with a strong political base in Khyber Pakhtunkhwa[12]. Given the applicants background the Tribunal is prepared to accept his family have likely supported the ANP in their local area. Despite the lack of verifiable evidence, based on the consistency of his claims and the strength of his oral evidence, the Tribunal is also prepared to accept the applicant’s [Relative A], was an elected ANP representative at the union council level and that his death in 2012 might have been connected to his political profile and role in the Lashkar.
[12] DFAT Country Information Report, 20 February 2019
118. While the Tribunal accepts the applicant and his father were likely supporters of the ANP it considers his claims in respect of his and his father’s membership of the ANP have not been consistent and are not strongly supported by the documentary evidence which has been provided.
119. For instance, the applicant’s statutory declaration dated 11 September 2015 indicates that his family was displaced in March 2009 which is consistent with country information. The Tribunal’s reading of the applicant’s statement is that both his father and [Relative A] were members of the ANP at that point in time. In his oral evidence to the Tribunal the applicant said that his father only joined the ANP after his [Relative A’s] death in 2012. As to himself, the applicant said that he was involved in ANP activities since childhood but he only became a full member in 2010.
120. In support of his claims the applicant provided a letter from the ANP, written and signed by Muhammad Zaheen Khan, President of the ANP in [Village 4] Union Council, on 30 July 2015. This letter states the applicant and his family were displaced due to terrorism in the area and that they received threats from unknown terrorists upon their return. The letter further states that the applicant went to Australia.
121. As discussed with the applicant during the hearing the wording and content of this letter is problematic in that it is identical to another letter which was provided to the Department in his submission dated 17 April 2016 but which was written by another ANP official for a person named [Party Member A]. During the hearing the applicant explained that [Party Member A] lives in Melbourne and advised him to ask the ANP for a similar letter to provide to the Department. The Tribunal accepts the applicant may have been advised to produce evidence of his claimed ANP involvement by another person along the lines of [Party Member A] and that he was given an example letter.   However, the identical wording used by the author of the letter dated [in] July 2015 causes the Tribunal to think that these types of letters are freely issued by the ANP, without regard to fact, to lend support for persons seeking to obtain a visa to remain in Australia. The Tribunal is not satisfied that the information outlined in the letter dated [in] July 2015 provides a reliable account of the applicant’s claimed experiences in Pakistan and the Tribunal has placed no weight on the letter. In any event, the Tribunal notes that this letter provides no support for either the applicant’s or his father’s claimed membership of the ANP.
122. Following the protection visa interview with the Department the applicant provided a further letter from the ANP dated [in] April 2016 which is also signed by [Leader A]. This letter states that the applicant’s [Relative A], was a member of the ANP and that his father joined the ANP after [Relative A’s] death in 2012. The Tribunal acknowledges that this letter lends some support for the father’s claimed ANP membership but the abovementioned observation about the manner in which these letters appear to have been provided by [Leader A] remains of concern to the Tribunal.   Also, the Tribunal notes the information appears to be at odds with the claims made in the applicant’s statutory declaration dated 11 September 2015 in respect of the date of his father’s membership of the ANP.
123. Relevantly, as discussed with the applicant, the letter dated [in] April 2016 does not provide support for his own claimed membership of the ANP. In his response the applicant stated that his ANP membership card provides the required proof of his membership.   The Tribunal put it to the applicant that it also seems unusual the membership card he has provided has no issue or expiry date. He responded that this is how the cards are issued in his area and that when a family supports the ANP it is for all of their lives.
124. Given the claimed generational support of his family for the party the Tribunal asked the applicant why he and his father’s membership cards were then only issued after [Relative A] was killed in 2012. The applicant said that it was because the party told his father he would be the leader following [Relative A’s] death.   Despite his statutory declaration indicating his father was already a member of the ANP in 2009 his earlier evidence was that his father lived and worked in [Country 1] for many years only returning to Pakistan for two to three months of the year. He said that in all those years his father had no time for politics. Even if his family had a political profile in the local area due to his [Relative A’s] position in the party the Tribunal is not persuaded that a leadership position would be offered to an ordinary member who had little to no political involvement and who had effectively spent the majority of the preceding years living outside the country and therefore divorced from the local politics. The Tribunal does not accept this explanation for why the membership cards were only issued in 2012 and is also not satisfied that this accounts for any inconsistency which might have arisen about when his father joined the party.
125. The Tribunal acknowledges the applicant’s claim that his membership card provides the necessary proof of his own involvement but even if his explanation as to why his membership card has no issue or expiry date can be believed the Tribunal can see no reason why he would only have been issued this card in 2012 if he had become a full member in 2010 as is claimed. As discussed with the applicant during the hearing document fraud is reportedly widespread for forms of documentation not issued by a competent central authority and it is also relatively easy to acquire fraudulently obtained genuine documents in Pakistan.[13] The applicant accepted this is the case. In the circumstances, the Tribunal considers the mere existence of the membership card does not overcome the abovementioned concerns.
[13] DFAT, Country Information Report, Pakistan, 20 February 2019
126. The Tribunal has considered the applicant’s claims and responses and accepts his [Relative A] was a member of the ANP and that he and his father were supporters of the ANP and may have attended some political meetings and provided some assistance during election campaigns in the past. However, in view of the concerns expressed above, the Tribunal is not satisfied that either the applicant or his father held formal membership of the ANP or that his father was put forward as a replacement party leader in 2012.
Lashkar involvement
127. The applicant claims that he was recruited to a Lashkar in 2010. He informed the Tribunal that he was [age range] at the time and that his involvement lasted five months until the Lashkar finished its work in 2011. He said that there were between 150-200 households in his village and that one person from each household was required to join the Lashkar. He said that his [Relative A] was one of three leaders of the Lashkar. In the five months of his involvement he said that he provided support on ten occasions to assist the army to identify approximately [number] houses occupied by Taliban supporters. He said those houses were destroyed and some Taliban members were killed and arrested in the course of the operation.
128. The applicant provided a security card in support of his claimed Lashkar involvement. The Tribunal accepts the explanations provided by the applicant as to why his father’s CNIC number appears on his card and for why the first 5 digits of his and his father’s CNIC numbers differ.
129. The applicant’s claims in respect of his involvement in the Lashkar have been consistent and there is country information to support that Lashkars emerged in the area in 2008 and helped the Pakistani military to fight the Taliban.[14] The Tribunal accepts the applicant was a junior member of a Lashkar for a five month period in 2010-2011. Given his age and the limited length of his involvement the Tribunal does not accept he was a high-profile Lashkar member.
[14] EASO, Pakistan Security Situation, October 2020
Claimed kidnapping, demolition of family home and years spent in hiding
130. The applicant claims that he argued with a neighbour in 2012 over his decision to join the Taliban. He claims his neighbour informed the Taliban about what he had said and that he was kidnapped in December 2012 and detained and tortured for three days before managing to escape. He claims this led to him enduring a long period of time in hiding in various locations in Pakistan before he eventually obtained a visa and made the journey to Australia.
131. The applicants oral account of these events was generally consistent with his prior claims although during the Tribunal hearing he introduced new information and claims in respect of the kidnapping which have not been raised before. This information raises some doubts in the Tribunal’s mind about the plausibility of his claims.
132. Firstly, the applicant claims that following his escape from the Taliban he travelled by foot to his [relative’s] house in [Village 3] where he stayed for a short while. He claims he then journeyed to various other locations before eventually going back to [Village 3], where he remained in his [relative’s] house for about a year. This is consistent with his earlier evidence. In view of his past association with the military, the Tribunal asked the applicant why he did not go immediately to them for help and to report the incident after making his escape instead of embarking on a perilous journey to numerous locations and thereby potentially exposing himself. He first stated that the military had already finished their work in the area and he would not have been able to get support in [Town 3]. He did not elaborate as to why that would be the case. Upon further questioning he said that his [relative] informed the military about what happened and they said they could not provide him with security. The Tribunal put it to the applicant that on the contrary the military, whose aim it was to rid the area of the Taliban, might have been very interested in his information. He then claimed that when his [relative] contacted the military they went out and carried out a search but couldn’t find the perpetrators because they left and went to the mountains. He said that he previously only mentioned the things which were relevant to him. On the contrary, the Tribunal considers the claimed enlistment of help from the military by his [relative] and the subsequent search which was undertaken to be relevant information and is troubled by the late introduction of this claim. Had these events occurred the Tribunal is of the opinion the applicant would have raised this information before and the Tribunal considers he has not provided a satisfactory explanation as to why he did not do so.
133. Having carefully considered the claims and evidence, the Tribunal is not satisfied that the applicant’s [relative] went to report any kidnapping to the military and/or that the military conducted any search for his captors. The Tribunal considers the applicant introduced this detail in response to the concerns raised about his failure to logically go immediately to the military for help. The Tribunal is of the view that his willingness to introduce false information is problematic and is of the view that this raises serious doubts about the veracity of his claimed kidnapping.
134. The applicant also mentioned for the first time during the Tribunal hearing that his Taliban captors tried to persuade him to become a martyr in order to avoid meeting his death as an unbeliever. As discussed with the applicant it is surprising that the Taliban did not simply kill him on the spot if that was their intention all along. He said that they told him his name was on the list and that he would be killed when his time came. The Tribunal found this account of events somewhat far-fetched. In any event, the Tribunal is not convinced that the Taliban would go to the effort of trying to convince a known opponent to carry out a suicide mission. The Tribunal accepts the applicant’s claims that the Taliban employ tactics to brainwash young people. However, the Tribunal considers it unlikely they would place their trust in a known opponent as this would likely place them at risk of detection. As discussed with the applicant it seems more likely that they would attempt to persuade young and vulnerable people from within their own ranks to carry out such a mission. The Tribunal considers this new information to be implausible and far-fetched and likely fabricated in a bid to further strengthen his claims.
135. The applicant also claims that he was and remains of interest to the Taliban and therefore cannot live anywhere in Pakistan because they are intent on finding him and will be able to do so wherever he goes. That said, the Tribunal finds it significant that the applicant was able to finish his college education and live for a further three years in Pakistan before departing to Australia. Given the claimed ease with which the Taliban can find him, even in far corners of the country, the Tribunal questioned why he was never previously located in [Village 3], [Village 4], Rawalpindi, Peshawar and other neighbouring areas he claims to have been hiding out in. The applicant responded that he disguised himself in a burqa when required to attend his college and lived in strict seclusion for the entire three years, virtually confined to his room.
136. As discussed with the applicant the Tribunal finds it very difficult to accept that the applicant managed to live effectively confined to his room for three years. In any event, as discussed with the applicant his own evidence appears to contradict this claim in that it is acknowledged he undertook various travels during this period including moving between [Village 3], Rawalpindi and Peshawar, returning to SWAT District more than once to organise paperwork necessary for his visa application and also travelling by taxi to Islamabad on at least one occasion to have fingerprints taken. While he claims to have gone to college and other public places disguised in a burqa the Tribunal finds this far-fetched. As noted during the hearing the applicant is a tall and well-built man and his ability to pass himself off as a woman by dressing in a burqa on multiple occasions without detection seems highly unlikely. While the applicant also claimed that he mostly stayed in the car on those occasions and was usually accompanied by his [relative] the Tribunal does not accept this. Based on his oral evidence the applicant entered his college and various other offices while disguised in a burqa and some of his travels were in and out of Rawalpindi and Peshawar when he was living apart from his [relatives].
137. In addition, the applicant claims he agreed, on his [relative’s] advice, to spend his remaining months in Pakistan, from March until July 2015, at his aunt’s house in [Village 4] which is located very close to his home village where it is said his attackers were situated. When asked why he took such a risk he said that he was obliged to follow his [relative’s] advice who thought it best that he be nearer his home district in case any last-minute paperwork was needed. As discussed with the applicant it appears he could just as easily have made a return trip to SWAT from Peshawar if the need arose given the distances involved rather than place himself at risk by living in [Village 4] for several months, effectively under the nose of the Taliban, who are claimed to have been searching for him. The Tribunal is not persuaded by the reasons given for his decision to reside in [Village 4] for several months prior to departing Pakistan and considers his decision to do so calls into question his fear of being located by his captors.
138. The applicant also stated during the hearing that he stayed with his [aunt] in [Village 4] and seemed to imply that this might have lowered the risk of him being detected because his [Relative A], with whom he associates his problems, is from [that] side of the family. He also said that he considered [Village 4] to be a lower risk location because there was an army base nearby. Notwithstanding if this is true or not, the Tribunal considers that if the Taliban were intent on finding and harming the applicant they would have gone to greater lengths to find him after his escape in December 2012. The Tribunal considers they would have taken the logical step of searching for him at his relative’s homes and would not have differentiated between his maternal or paternal relatives. The applicant claims that in his Pashtun culture everybody knows everybody which arguably would have assisted the Taliban to find him. Despite this, he has not claimed that the Taliban ever approached any of his relatives in [Village 3], [Village 4] or elsewhere in a bid to find him in the years prior to his departure from Pakistan. The Tribunal considers this also casts considerable doubt on his claims to have been kidnapped and pursued by the Taliban. Nor was his presence ever detected during any of the trips he made to organise the necessary paperwork for his departure to Australia.
139. The Tribunal finds it significant that the applicant remained in Pakistan after the claimed kidnapping for three years without encountering any harm before departing for Australia. While the Tribunal acknowledges the claimed delayed departure was in part due to him being badly represented by the first agent and that it might have taken time to get another offer of placement, for the above reasons the Tribunal is not satisfied that he was living in hiding for this period of time. That the applicant was able to remain living in Pakistan without hindrance for three years after the claimed kidnapping causes the Tribunal to seriously doubt he was ever kidnapped and/or wanted by the Taliban.

140. The Tribunal acknowledges that the letters provided by the ANP dated [in] July 2015 and [in] April 2016 lend some support for the applicant’s claimed kidnapping and subsequent need to go into hiding. However, given the concerns raised above including the manner in which these letters appear to be provided the Tribunal has afforded this evidence little weight.
141. Having carefully considered the claims and all the evidence which is now available to the Tribunal it is not persuaded that the applicant was kidnapped in December 2012 for the reason claimed or was pursued by the Taliban for any other reason. Nor does the Tribunal accept the applicant was living in strict hiding for three years prior to his departure from Pakistan. If the applicant resided at different locations prior to his departure from Pakistan the Tribunal considers it was for reasons other than those which are claimed.
142. The applicant claims that his village home was destroyed by the Taliban in retaliation 15 days after his escape and his family were forced to flee the area. In light of the Tribunal’s finding that the applicant was not kidnapped it also does not accept that his village home was destroyed by the Taliban in retaliation for his escape or that his family were forced to go into hiding for this reason.   The Tribunal acknowledges the photographic evidence produced by the applicant however this does not assist the Tribunal to determine whether it was his house that was affected or if in fact the photograph depicts a destroyed residential dwelling.. The applicant agreed with the Tribunal’s observations in this respect.
143. The Tribunal also does not accept that the applicant’s father has been living in hiding since December 2012 as a result of the applicant’s claimed kidnapping. The Tribunal has considered whether he might have been living in hiding for reason of his family’s political involvement. According to the applicant he personally suffered no harm in Pakistan in connection with his Lashkar duties and neither his or his father’s relationship with [Relative A] or their political involvement prior to the death of [Relative A] in 2012 caused them any harm. The Tribunal therefore finds it implausible that his elderly father, who it is claimed has a heart condition, would have been roaming from town to town for the last seven or eight years out of fear of harm from the Taliban for these reasons. Based on the available evidence the Tribunal considers it likely that the applicant’s parents remain living in SWAT district.
Death of [Relative B] in 2016
144. The applicant also claims that a second [relative], [Relative B], who was an [occupation 2], was killed in 2016 by the Taliban in connection with their search for him and his father. In support of this claim the applicant provided a translated copy of an undated news report from an unnamed source. The document states that extremists in [Village 1], SWAT, entered a mosque and questioned [Relative B] about [the applicant and his father] who were wanted by the Taliban. The article further states that when [Relative B] failed to provide any information he was abducted and killed.
145. The Tribunal is prepared to accept that the applicant’s [Relative B] may have been killed in 2016. However, the Tribunal does not accept, on the available evidence that his death was connected to the Taliban’s search for either the applicant or his father. The Tribunal notes the above findings and in any event as discussed with the applicant during the hearing the Tribunal is not prepared to place any weight on an undated and unnamed news publication particularly as country information indicates that falsely written news articles can easily be obtained in Pakistan[15].   Furthermore, if the Taliban were searching for the applicant and/or his father, which the Tribunal does not accept, it is logical to assume they would have approached [Relative B] soon after the claimed events in December 2012 rather than waiting four years to do so.
Is there is a real chance the applicant will suffer serious harm if he returns to Pakistan now or in the reasonably foreseeable future?
Actual and/or imputed political opinion and/or actual or imputed religious views
[15] DFAT, Country Information Report, 20 February 2019
146. It is claimed that the applicant will suffer serious harm if he returns to his local area due to his actual and/or imputed political and religious opinions arising from his and his family’s support for the ANP. In relation to the latter, the applicant claims that his close association with his now deceased [Relative A] raises his risk of being targeted by the Taliban.
147. According to DFAT’s most recent country information report for Pakistan, the ANP is anti-Taliban and TTP militants have attacked ANP members due to is secular ideology, support for the military and counter-insurgency operations in the former FATA and Khyber Pakhtunkhwa, and work to improve the Pakistan-Afghanistan bilateral relationship. ANP claims to have lost 1000 members to acts of terrorism. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded at least 69, and killed at least 20 people, including prominent local ANP politician Haroon Bilour. Bilour was a Provincial Assembly candidate for the July 25, 2018 general elections. His father, Bashir Bilour, a prominent ANP politician, was also killed by a suicide bomber in 2012. The ANP was the target of TTP attacks during the lead up to the May 2013 elections. Many of the party’s leading candidates restricted their electioneering to their houses or via skype. On 11 April 2016, militants killed an ANP leader in SWAT, Khyber Pakhtunkhwa. DFAT assesses that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship.[16]
[16] DFAT Country Information Report, 20 February 2019.
148. As noted in the above findings the Tribunal accepts that the applicant’s late [Relative A], was an elected ANP leader in his union council area and that his murder in 2012 might have been attributable to his anti-Taliban stance. The Tribunal also accepts that the applicant and his father provided some support for the ANP in the past, particularly around election times and may have hosted some meetings in their guesthouse while [Relative A] was alive. However, the Tribunal is not persuaded and does not accept that the applicant or his father were high profile supporters or members of the ANP or that his father was put forward as a replacement leader in 2012.
149. The Tribunal accepts the applicant’s [Relative A’s] role in local ANP politics might have elevated the family’s political profile in years past. However, [this relative] has been deceased for nine years and in the absence of any other reported family members taking up the mantle the Tribunal is not satisfied that the family has maintained a political profile which is likely to put the applicant at a higher risk of serious harm than any other ANP supporters.   The Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to his home area for reason of imputed political or religious opinion arising from his [Relative A’s] political profile.
150. According to the applicant he has expressed little interest himself in ANP politics since his departure from Pakistan six years ago and he agrees that he did not have a high-political profile in his area before he left the country. That said, given his family’s tradition of support for the party the Tribunal accepts he may again provide some low-level support for the ANP if he is required to return home. The Tribunal considers this support would likely be along the lines of any previous involvement which included occasional attendance at political meetings and some low-level support during election campaigns as an ordinary supporter. As this political activity did not afford him a high political profile or attract adverse attention in the past the Tribunal is not satisfied it will do so in future even if there is a lingering Taliban presence in the area.
151. Relevantly, the news reports provided in submissions prior to and post-hearing which reference the killing of political identities in SWAT involved the deaths of party leaders. The Tribunal considers this accords with DFAT’s assessment of the level of risk to leaders and party members. Based on the available evidence the Tribunal is not persuaded the applicant was or will become a member of the ANP or assume a leadership position within the party in the foreseeable future. The Tribunal considers this considerably lowers the chance of him suffering serious harm on account of his political opinions and/or activities to a remote chance.
Past involvement in the Lashkar and access to the military
152. It is claimed that the applicant will suffer serious harm on return to Pakistan on account of his previous involvement in a Lashkar. The applicant also maintained strongly during the second Tribunal hearing that he had access to the military through his [Relative A] and his Lashkar involvement and claimed that this is another reason why the Taliban targeted him.
153. The Tribunal accepts the applicant was involved in a local Lashkar for approximately 5 months in 2010-2011 but notes on his evidence that he suffered no harm in Pakistan for this reason. This is despite the Tribunal’s findings that he made return visits to his village and nearby towns and was not living in hiding for three years prior to his departure from Pakistan.
154. During the hearing the Tribunal asked the applicant whether all former members of the Lashkar in his area have or are presently being targeted by the Taliban. He indicated that there were hundreds of Lashkar members at the time and agreed that not all are at risk of harm. He said that he is at greater risk of being harmed or targeted by the Taliban for his former involvement due to his relationship with his [Relative A], who was a former leader of the Lashkar and because of the resultant access he had to the military through his [Relative A], which he argued is regarded as being useful to the Taliban.
155. The Tribunal again notes the length of time since his [relative’s] death and considers this passage of time to be significant when assessing the risk of harm to the applicant in the future for reason of this association.   Similarly, while the applicant might have had some access to the military through his Lashkar involvement and/or his [Relative A], by all accounts this ceased in 2011. In addition, the applicant has now been absent from the country since 2015.
156. The Tribunal accepts that terrorist attacks perpetrated by the Taliban continue to be reported throughout Pakistan. However, as noted above the current flashpoint for terrorist activity in KP province is reportedly North Waziristan and the majority of reported attacks in recent years have targeted security forces.   According to the country information cited above there have been very few reported terrorist attacks in SWAT in recent years and very few involving Lashkar members. The Tribunal acknowledges the suggestions contained in country information provided post-hearing that the Taliban is showing signs of regrouping in SWAT. The Tribunal considers this remains to be seen but be that as it may it nevertheless considers the bulk of the independent country information before it indicates that there has been a steadily declining incidence of terror attacks in KP province and SWAT in recent years and that any remaining Taliban presence, particularly in the SWAT Valley, is primarily focused on inflicting harm on the security forces in the area. Furthermore, the news report provided in the post-hearing submission dated 17 March 2021 indicates the military are capable of swiftly responding to any suspected terrorist activity.
157. Notwithstanding the above, the Tribunal accepts there have been a small number of peace committee or Lashkar members reportedly killed in KP province in recent years. However, as discussed and agreed by the applicant, these incidents are relatively few and plausibly the elders or leaders of the Lashkars are more likely to be targeted by the Taliban. The Tribunal acknowledges the information provided in the post-hearing submission includes information about the killing of a peace committee member in SWAT albeit by unidentified assailants as recently as February 2020. The Tribunal accepts this but notes the applicant is claiming he will be targeted and killed for his involvement in a Lashkar some ten years ago which the Tribunal considers is an entirely different situation to the killing of an active Lashkar member.
158. Furthermore, in light of available country information in respect of the fragmentation and dissipation of the Taliban presence in the SWAT Valley since the military consolidated control over the area the Tribunal is not persuaded that the membership of any remaining Taliban presence in his local area would have remained constant in the years the applicant has been away. Indeed, the applicant stated at hearing that many of the Taliban members who were operating at that time fled the area or were either arrested or killed by the military during the house raids facilitated by the Lashkar. The Tribunal is therefore not satisfied that the applicant’s identity and past involvement in a Lashkar would still be known to any Taliban fighters who might now be operating in the area. For these reasons and given his brief involvement in the Lashkar was some ten years ago, the Tribunal considers the chance of him being targeted on return to his area for this reason to be remote.
159. For all these reasons the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm on return to his home area for reason of his past and brief involvement in a Lashkar or because he is perceived to be a person with access to the military through his relationship with his late [Relative A].
Disgruntlement of Taliban families affected by the work of the Lashkar in 2010-2011
160. The applicant also claims that the family members of the Taliban houses which were destroyed will seek revenge on him if he returns to his home area. The applicant has not claimed that he was the only Lashkar member called upon to identify Taliban houses in his area and he agrees that not all of the hundreds of his fellow Lashkar members have suffered the fate he fears. Indeed, the applicant agreed that leaders of Lashkars continue to be most at risk of harm. This indicates to the Tribunal that there would be former junior Lashkar members, such as himself, continuing to live in the local area despite that they were implicated in the destruction of Taliban houses similar to the applicant. There is no evidence before the Tribunal to support that these members are being targeted in the manner described by the applicant. For the reasons expressed herein the Tribunal is not satisfied that the applicant will be treated any differently on return to his local area than the other former junior Lashkar members even though he was a relative of [Relative A] as is claimed. The Tribunal is not satisfied that there is a real chance the applicant will be targeted by the families of Taliban members affected by the work of the Lashkar some ten or eleven years ago.
161. The Tribunal has carefully considered the applicant’s claims both individually and cumulatively but for all the above reasons, it is not satisfied that there is a real chance the applicant will suffer serious harm on return to his local area in SWAT district for any of the reasons claimed.   Therefore, the Tribunal finds the applicant does not have a well-founded fear of persecution in Pakistan now or in the reasonably foreseeable future.
CONCLUDING PARAGRAPHS
162. 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).
163. 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). For the same reasons already articulated above 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 there is a real risk that he will suffer significant harm. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
164. 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 criterion in s.36(2).
DECISION
165. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

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

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

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.
…

[2021] AATA 2508

25 May 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing