1723235 (Refugee)

[2020] AATA 1514

1723235 (Refugee) [2020] AATA 1514 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723235

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Joseph Lindsay

DATE:1 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958 (Cth)

Statement made on 1 May 2020 at 1:44pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion and political opinion – secular/liberal Sunni Muslim – son killed and applicant injured by suicide bomber – leader of village defence committee – cooperation with army in anti-extremist operations – attacks and threats by Taliban – mental health – workplace accident – country information – not reasonable to relocate – application under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 28 November 2013 and the delegate refused to grant the visa on 9 October 2014.

3. The applicant applied to the Tribunal for review, and on 13 September 2016 the Tribunal affirmed the delegate’s decision to cancel the applicant’s protection visa.

4. The applicant appealed the Tribunal’s decision to the Federal Circuit Court. [In] September 2017, the Federal Circuit Court remitted this matter to the Tribunal for reconsideration.

5. In summary, the Federal Circuit Court found that there were two certificates issued pursuant to section 375A of the Act on 8 December 2014 that were not disclosed to the Applicant in the course of the review by the Tribunal, and that there was one certificate issued pursuant to section 438(1)(b) of the Act on 16 December 2014 and the existence of the certificate was not disclosed to the Applicant in the course of the review by the Tribunal. The Court found that a jurisdictional error occurred where, in the Court’s view, at least some of the documents subject to the certificates were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

6. The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

13. 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.

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

    Applicant’s claims

15. The applicant’s original claims in his 866 Form (Dept file CLF2013/294739, folios 29-26, which referred to his separate statement on folios 56-54), stated as follows:

    Q42:     I am seeking protection in Australia, so that I do not have to go back to:

    A:       Pakistan

    Q43:     Why did you leave that country?

    A        Detailed information attached to this application in my statement of claim

    Q44:     Have you experienced harm in that country?

    A        Yes. Detailed information attached to this application in my statement of claim

    Q45:     What do you fear may happen if you go back to that country?

    A        Detailed information attached to this application in my statement of claim

    Q46:     Who do you think may harm/mistreat you if you go back?

    A        Detailed information attached to this application in my statement of claim

    Q47:     Why do you think this will happen to you if you go back?

    A        Please refer to the attached statutory declaration

    Q49:     Do you think the authorities of that country can and will protect you if you go back?

    A        No. Detailed information attached to this application in my statement of claim

16. A copy of the applicant’s statement signed on 14 November 2013 was as follows:

    My name is [Name]. I am a married man born on [Date 1] in [Village 1] Swat, Khyber Pakhtoon Khwa Pakistan. I am married to [Ms A] and together we have [Number] children's [Names]. My [son] was killed [in] 2007 when a suicide bomber struck himself at [a Location] at [Village 2] Swat killing [Number] other people. I got injury [at] this incidence. I had an extensive family back home in Pakistan including my parents and [Number] siblings, [Number] brothers and [Number] sisters. My sisters are married and live with their families. My brothers are unmarried and live with my parents and family.

    I have never attended any schooling as I was not interested in studies from beginning. I got the mandatory training to work as a seaman and worked as a seaman since 2003. From 2003 till 2013 I have worked for [a shipping company] based in [Country] as [an Occupation]. I have worked on ship as a ship crew member from [July] 2003 [at various times until] October 2013. As a seaman I have visited [various countries]. In these countries we were only go to shore for a little while but then would return to the ship and work and slept there.

    Swat was a peaceful state till about 2006. In about 2006 a religious cleric Mawlana Fazal Ullah started his illegal FM radio. He used to teach the religious studies through this radio station and many people supported him initially. He and his follower then started targeting Army, Police and female education. My [daughter] was studying at a local school in our village. In about September 2007 a group of Taliban knocks on our door. When I open the door they ask me that they are here to advise me to stop sending my daughter to the school. I told them that education is important for both men and women and it has been taught to us in our wholly Book. They replied listen to us, obey whatever you have been ordered to or the consequences will be bad. After this they left. I asked my daughter to study from home. We were very upset of this decision but safety of my children was most important to me. Taliban activities were in its rise and [in] 2007 a Suicide bomber struck himself off at [a Location] at [Village 2] when I was visiting one of our relative at [Village 2] Swat which is about [Number] kilometres away from our village. I got severe injuries [and] my [son] who was only [Age] years old was killed along with [Number] other people. After this incidence my hatred against Taliban grew up and I would oppose them wherever I could.

    Taliban activities were in its rise and they would give hard time to anyone who opposed them. At the end of April 2009 when I was back home I was asked by a group of Taliban to pay them money to support their organization. I refused and upon my refusal they starting beating me. Pakistani Army started a massive operation against Taliban and they asked all of us to leave our homes and go to other cities. I took my family to Peshawar as Internal Displaced Peoples (IDPs). When we were in Peshawar we received assistance from UNHCR and received some food packages and other reliefs. Pakistani Army claim victory against Taliban and we were asked to come back to Swat. I took my family and went back to Swat. A committee was formed in our village against Taliban. This committee was known as "AMAN COMMITTEE" means Peace committee. Many people in our village and other villages have come forwarded to join this committee to tackle against Taliban. I also became a member of this committee. Most of the deployed army in Swat were from other provinces of Pakistan and were unfamiliar with the area. We helped them settle in the area to fight against extremism. One of my cousins [Mr B] also became a member of this committee. Taliban were out of scene but they started targeting those who have opposed them in past as well as who have joined these committees. My cousin [Mr B] was abducted by unknown abductees and is still missing.

    I would work for committee whenever I could. [In] January 2011 when we were performing night watches I saw two members of Taliban who were trying to go to their houses to visit their families. I informed the Army and when they came I took them to their house that were captured by the Army. In about late January 20111 received a threatening call from Taliban that I have handed over their members to the Army and they will soon target me. I asked the Army for my protection who issued me a gun license to carry with myself for my safety. [In] February 2011 when we were performing night watch a group of Taliban attack on us. They started beating me and other members of committee. When members of our committee open fire on them they left the area. My [hand] was broken in this incidence and two members of Taliban were injured who were then arrested by the Army. I took medical assistance and was not able to fully cooperate with the Army. I went to the ship and came back from the ship in about May 2012.

    When I came back I continue my work for the committee. Taliban continued their target attacks and have killed members of the committee including [Mr C] of [Village 3], [Mr D] of [Village 3] and many others. [In] July 2013 I received a call from unknown caller who threatened me that despite their previous threats I still work for the committee. They ordered me to discontinue my support for committee which I refused and upon refusal they threatened that they will soon kill me. After this threat I went to Karachi and started applying for a shipping job. I finally joined the ship [in] September 2013 and we arrived to [Australia] [in] October 2013. I deserted the ship in [Australia] [in] October 2013.

    My life is in danger from Taliban. I have previously opposed their organization and helped the Army capturing their members. Taliban are out of scene but they are involved in target attacks. They have killed many members of committee formed in other cities of Pakistan. I cannot safely relocate to other parts of the country as I am uneducated and will face serious financial problems. Also Taliban are active throughout the country and they kill their targets whenever they found them. They have killed many members of the committee who fled Swat in fear of persecution from Taliban including [Mr E] who was targeted in [Village 4] Punjab in March 2013, [Mr F] head of [Village 5] who was killed in Karachi, [Mr G] who was a seaman like me and member of peace committee [Village 6] was target killed in Karachi. The authorities back home cannot provide adequate protection to me as they themselves are targeted by member of Taliban on a daily basis. I therefore kindly request the Australian government to accept my application for protection and save my life from further persecution of Taliban.

    The applicant then supplied further information about his claims. The applicant claims to be from [Village 1], Swat, Khyber Pakhtoon Khwa (KPK), Pakistan. He claims that his life is in danger from the Taliban because he previously opposed them and helped the Pakistan army to capture some of their members. The applicant claims that he assisted the army in his capacity as a member of the village aman committee.

17. As indicated above, the applicant claims that, in September 2007, the Taliban knocked on his door and advised him to stop sending his daughter to school. After this, the applicant asked his daughter to study the Qur'an from home instead of attending school.

18. The applicant claims that [in] 2007, his [son] was killed in a suicide bombing at [a Location] at [Village 2] Swat. The applicant claims that [Number] other people were killed in the bombing and that he himself was present and suffered [injuries].

19. The applicant claims that in April 2009 he was asked to pay the Taliban money to support their organisation. He claims to have been beaten when he refused.

20. The applicant claims to have stayed in an IDP camp in Peshawar while the army took military action against the Taliban, and to have joined his village's aman committee (peace committee) on return to Swat.

21. The applicant claims to have received a threatening phone call from the Taliban in late January 2011. The caller stated that he had handed over their members to the army in the course of his work for the aman committee, and that as such they would soon target him. The applicant claims that a month later, he was attacked and beaten by the Taliban due to his association with the aman committee. He claims to have suffered a broken [hand] in this attack.

22. The applicant claims to have received a threatening phone call [in] July 2013 from an unknown caller due to his continuing work for the aman committee.

23. The applicant claims that his cousin, [Mr B], was abducted by unknown persons approximately four years ago and is still missing.

    Written submissions

24. The Tribunal notes the written submission dated 23 August 2019, in part as follows:

    [The applicant]’s matter has a lengthy history. As the Tribunal will be aware, he applied for a Protection (subclass 866) visa on 28 November 2013 and the delegate refused to grant the visa on 9 October 2014, finding that his fear of returning to Pakistan for reason of being killed by the Taliban was not well-founded. On 13 September 2016, the Tribunal affirmed the decision under review (referred to hereafter as the ‘First Tribunal’). [The applicant] sought review of that decision in the Federal Circuit Court and, by orders made [in] September 2017, the Court quashed the decision of the previous Tribunal and ordered that the Tribunal re-determine the case according to law. [The applicant] has, since then, been waiting for his hearing to be constituted and heard by the Tribunal.

    The First Tribunal made a long and detailed decision, ultimately assessing that the applicant faced a real chance of serious harm upon return to his home area of [Village 1] but that internal relocation within Pakistan would be reasonable within all the circumstances. We submit that the appropriate course is for this Tribunal to accept that the Applicant faces serious harm upon return to Pakistan, as the First Tribunal did, and to turn its mind to relocation, taking into account new and updated evidence regarding the Applicant’s physical and psychological health.

    Relocation is addressed later in this submission, but we submit broadly that [the applicant], as an entirely uneducated father of [Number] children, who lost a child to a suicide bomber, and has struggled in Australia with poor mental health, culminating in a recent workplace accident in a factory in 2018, and subsequent inability to maintain work, is not able to reasonably relocate to an area outside of Swat valley. He is unable to return to his work as a crew man, having deserted his ship to seek asylum in Australia, and finding and maintaining a job sufficient to rebuild his life, while living with deep subjective fears of violence from the Taliban or other groups, and permeating anxiety and depression, with no family outside Swat valley, is neither realistic, nor, in the legal sense, reasonable. Accordingly, [the applicant] must be found to be owed protection obligations.

    Background

    [The applicant] s personal history is presented in detail in the statutory declaration enclosed herewith.3 [The applicant] has also an earlier statement dated 14 November 2013, and to the extent that this statement is incomplete or inaccurate, [the applicant] seeks to clarify those matters in the more recent statutory declaration.

    In brief, [the applicant] fears harm on return to Pakistan due to his previous activities against the Tehrik-i-Taliban (TTP) and associated risk profile, his actual and imputed support of the Pakistani army through his work with the Village Defence Committee (VDC) and his actual and imputed political opinion against the TTP, as well as the risk of harm attracted by his future work for the VDC, should he return. [The applicant] also fears harm as a member of the two social groups; secular/liberal residents of Swat Valley and returnees from Western countries to Swat Valley.

    [The applicant] is a [Age] year old Sunni Muslim man, born and raised in the village of [Village 1], in the Swat Valley district of the Khyber Pakhtunkhwa (KPK) Province of Pakistan. He is of Pashtun ethnicity.

    [The applicant] grew up in [Village 1] with his [Number] siblings and his parents, [Mr H] (d.o.b. [Year]) and [Ms I] (d.o.b [Year]). [The applicant] has never attended schooling.

    [The applicant] is married to [name deleted], born [Date] and they have [Number] children together, called [Names]. The couple sadly lost their [son] when he was killed [in] 2007 by a suicide bomber in [Village 2], Swat.

    [The applicant] was a sea crew member by trade prior departing Pakistan, from about July 2003 onwards, for a [Country]-based [company]. As a result of this work, [the applicant] travelled widely, visiting [Countries] and elsewhere.

    As Mawlana Fazal Ullah’s radio sessions grew in popularity, and he and his followers gained power in Swat, [the applicant] came into direct contact with the Taliban in two distinct ways. In September 2007, the Taliban knocked on his door and advised him to stop sending his daughter to the school, as under their rule, girls could not attend school. [The applicant] resisted this, telling them that the Qu’ran teaches that education is important for men and women. They responded that he should listen to them and obey them, otherwise he would have to face the consequences. After this, [the applicant] asked his daughter to study from home, to keep her safe.

    In December 2007, [the applicant] and his [son] were going to visit some of their relatives in [Village 2], and they stopped at a shop to buy [products]. A nearby suicide bomber detonated himself with no warning. [The applicant]’s [was] injured and his son was killed instantly. [The applicant]’s opposition to the Taliban and their ideology (cemented) into hatred and a deep-seated opposition to the organisation.

    [The applicant] joined the peace committee in [Village 1] in early 2008, but at this time, it was operating underground and discretely, because it was too dangerous to operate out in the open.

    In or around April 2009, the Taliban asked [the applicant] to pay them money to support the organisation, when five or six members visited his home. When [the applicant] refused, advising that he had young children, and had to look after them, and could not give them money, the group of five or six men beat him, and one of them advised the others that they should leave him, and come back another time.4

    In May 2009, [the applicant] relocated his family to Peshawar while the Pakistani army led an operation against the Taliban in Swat. When he returned with his family, the Village Defence Committee (“VDC”) was stronger and operating in the open. [The applicant] started working for the VDC as often as he could, undertaking night watches and assisting the Pakistani army.

    [The applicant]’s cousin, [Mr B], was kidnapped in around March or April 2009, and remains missing. [Mr B] worked with [the applicant] as part of the VDC.

    [The applicant] received approximately four threatening telephone calls from the Taliban before leaving Pakistan:

    -    Late January 2011: This call came from a man who told [the applicant] that he had handed their members over to the army, and that they would target him soon.

    -    April 2011: This man said something to the effect of, one day we will find you, you cannot hide yourself, we now have this number.

    -    April 2011 (or thereabouts) with a very similar message; and

    -    July 2013: This person referred to the fact that [the applicant] was still working for the VDC despite previous threats and ordered him to discontinue his support for the committee and [the applicant] refused. The man retorted that he would soon kill him.

    In January 2011, [the applicant] was attacked by the Taliban when they came to his home and asked him for money, in a group of about four men.

    In February 2011, [the applicant] was targeted by the Taliban while he was on a night watch, and a group of Taliban descended upon him and his friend sitting around a fire. They began to attack them with sticks, and started beaten, kicking and punching [the applicant] and his friend. In the process, [the applicant]’s hand was broken. [The applicant] and his friend began to scream to raise the alarm, and another friend within sight called the army. Two Taliban were injured and arrested by the army.

    Around the end of 2012, the Taliban put a list on the wall of a shop in their local market, and [the applicant]’s brother advised him that his name was on the list, and his father warned him that it was time to leave.

    After receiving the threat in July 2013, [the applicant] decided that it was time to leave Pakistan, and managed to join a ship [in] September 2013. After arriving in [Australia] [in] October 2013, [the applicant] deserted the ship [in] October 2013.

    [The applicant]’s [brothers] are much younger than him, and were under eighteen years of age when [the applicant] joined the VDC. [The applicant]’s father and uncles were supporters of the Awami National Party. [The applicant]’s family now moves around the different villages in Swat valley to avoid danger. [The applicant] is the eldest brother, and, if he returned, would be obliged to join the VDC to continue their work, both due to his own conscience and because of pressure from the Pakistani army.

    [The applicant] disputes the finding of the previous Tribunal that he was not a ‘leader’ in the VDC, and explains why he did not raise his claim to be a senior member or leader earlier in that process;

    1. I understand that the Tribunal was concerned that I was not a ‘leader’ in the Peace Committee. I was the third ranking person in my peace committee, and there were about four of us, and about thirty or forty active members. When I travelled in and out of Pakistan for my job as a crew member, other people stepped up and filled the leadership position. Accordingly there was some flexibility with my responsibilities. Also, it was only when I returned from Peshawar that I became one of the four leaders. Before that, I was lower in the hierarchy.

    2. The Tribunal mentioned that I said I was a manager in the Peace Committee. In Pashto, the words for Manager and for Leader are largely interchangeable. I understand that the Tribunal thought that I would have raised my leadership role earlier in my immigration process. I did not realise the importance of explaining these kinds of details at the time and I wish that I had have known to say as much as possible in my first statement of claims. I was assisted by a person called [Mr J], who worked for [name] Migration Services. I was not trying to later exaggerate my claims for protection. [Mr J] did not ask me about my seniority within the organisation and I did not think to raise it.

    3. The Tribunal was also concerned that I did not mention the death of Bahre Karam in my protection visa interview. I find explaining my case stressful and have ever since the process started. If I had have been asked about him directly, I believe I would have been able to answer the questions. I have always known who he was. He is very famous among the Peace Committee members and was very active. Everyone in Swat knows him.

    We submit that the above explanations are credible, and should be accepted. It is clear that a two-page statement of claims for a complex case does not ‘cover the field’ in terms of the details of his claims. Further, no accredited interpreter was used, and rather [the applicant]’s friend assisted him to prepare it at no charge.

1. The written submission dated 23 August 2019 made comment on the previous Tribunal decision of 13 September 2016 as follows:

   The First Tribunal made a multitude of adverse credibility or general adverse findings regarding the Applicant’s evidence, and I make the following submissions by way of response.

   The First Tribunal did not accept that the Applicant’s cousin was abducted by the Taliban because he was a member of the Peace Committee

   The First Tribunal found that the Applicant’s cousin was kidnapped prior to the establishment of the Peace Committee. In his recent statutory declaration, the Applicant explains that he and his cousin worked with the committee prior to 2010, but that it operated discreetly in the first months. When the Applicant returned from Peshawar in 2009, the Committee was operating more openly, and in 2010, the Applicant was promoted within the VDC.

   Accordingly, we urge the Tribunal to accept the Applicant’s evidence that [Mr B] was abducted by the Taliban around March or April 2009 by the Taliban. To suggest that it is ‘unclear’ why he was abducted, in the socio-political context of Swat valley in 2009, when he was engaged in anti-Taliban activity, is a finding bordering on naïve or irrational. Similarly, the Tribunal’s finding that there has been ‘no apparent follow-up’ lacks logic – [Mr B] has not returned and is presumed dead. What sort of ‘follow-up’ the Tribunal was suggesting, ten years later, is unclear. On the balance of probabilities, it should be accepted that [Mr B] was kidnapped by the Taliban, and was killed, on the basis of his activities and imputed political opinion.

   Inconsistencies in the Applicant’s oral and written evidence as to when his family were displaced/trips in and out of Pakistan

   The First Tribunal noted that there were inconsistencies in the Applicant’s written and oral evidence as to when he was in Swat over the relevant period. [The applicant] does his best to clarify these dates in his statutory declaration. However, we note that he no longer has his old passport or seamen Service Book to clarify the dates as a matter of certainty. We urge the Tribunal to accept that taking into account the nature of the Applicant’s occupation, combined with trips to Peshawar in 2009 and 2010 to seek safety, he is only able to provide his best recollections. However, there is nothing inconsistent about the notion of the Applicant travelling over this dangerous period and, upon return, working with the Peace Committee, and being elevated to a leadership role.

   Elevation to leadership role within the VDC

   The First Tribunal took the view that the Applicant raised his claim to have become a leader in the committee ‘late’. We refer once again to the Applicant’s statutory declaration which explains the circumstances of the first statement being drafted, and urge this Tribunal not to give weight to this matter. Further, the applicant’s ‘failure to mention’ Bahre Khan until the Tribunal hearing is also addressed in that statutory declaration – the Applicant asserts that he has always known who he was. In my submission, the Tribunal ought not to give undue weight to the Applicant’s failure to answer questions that he was not asked.

   Inconsistencies regarding various threats from Taliban

   The First Tribunal dedicated considerable time to identifying issues with the Applicant’s evidence regarding the timeline and content of threats he received. Rather than engaging with each adverse finding, we invite the Tribunal to consider the Applicant’s claims as a whole, and to test his evidence, bearing in mind the effluxion of time since the threats took place, [the applicant]’s mental health, and the fact that this is the third time [the applicant] has been interviewed about his case.

   First Tribunal’s conclusions

   The First Tribunal accepted that the applicant faced a real chance of serious harm from the Taliban for a convention reason, and accepted that the applicant may resume his support to the VDC upon return to [Village 1]. This finding was reached despite the Tribunal declining to accept that the applicant was particularly active in the peace committee, or held a leadership position, or that he was ever threatened or harmed by the Taliban, or that he was on any hit list as a result of his involvement with the committee. Rather, the Tribunal reached her conclusion on the basis that [the applicant] was simply a member of the peace committee, citing extensive country information between paras 35 and 48 of that decision.

2. The written submission dated 23 August 2019 suggested that the applicant was a member of several particular social groups, including:

   -    VDC members of Swat Valley;

   -    Known activists against the Taliban;

   -    Secular/liberal residents of Swat Valley;

   -    Returnees from Western countries to Swat Valley.

3. The submission suggested that the applicant feared harm on account of political opinions actually held by him, or which may be imputed to him by his persecutors, as described below:

   -    Pro-military and pro-Pakistani government political opinion;

   -    Anti-Taliban political opinion (also informed by his involvement with his local VDC).

   -    A pro-government and pro-military stance by virtue of his status as a returnee from the West.

4. The submission provided a significant amount of country information suggesting that Swat was still a dangerous place. The submission suggested that the applicant would not be able to access state protection and that he would be reasonably able to relocate within Pakistan. In addition, it was suggested that Pakistan’s health system was not adequate to be able to properly assist the applicant in regard to his mental health care.

5. The Tribunal notes the statutory declaration signed by the applicant on 23 August 2019. In this statutory declaration, the applicant essentially repeated his previous claims and made clarifying remarks to concerns raised in the previous Tribunal hearing. The reference to his previous claims are as follows:

   Involvement with the Village Defence Committee

   14.We enjoyed relative peace in Swat until about 2006 when Mawlana Fazal Ullah commenced his illegal radio sessions to spread his religious studies. He obtained a large following initially. However, he and his followers then started targeting the army, the police, and women's education. My [daughter] was studying at a local school in our village. In about September 2007, a group of Taliban men knocked on our door, and told me that they were there to advise me to stop sending my daughter to the school. There was a group of at least five of them. They told me that girls, under their rule, could not go to school.

   15.l told them that education was important for both men and women and this is taught to us in the Holy Book, the Qu'ran. They told me to listen to them and to obey them otherwise l would have to face the consequences. Then they left.

   16.After this, I asked my daughter to study from home, so that she would be safe. I was unhappy about this but wanted to protect her. I believe that education is very important. She has been so depressed and upset about this recently that she has missed, out on her education. My daughter studies the Koran at home. At some point, I think it was in 2009, the local school was destroyed or burned. This was a very dangerous time. There was frequent bomb blasts in the village and it was very dangerous There were also curfews,

   17.After my [son] was killed, when a suicide bomber blew himself up in [Village 2] in 2007 and he was struck in the blast, and I was injured, I developed a strong hatred for the Taliban. I had previously opposed them but this was different. I had lost my son through an act of violence from a person who I believe was Taliban.

   18.At the end of April 2009, a group of Taliban asked me to pay them money to support their organisation, and I refused. I was then beaten by them. I was going out of my home for some fresh air and they were waiting for me. There were five or six of them and they asked me for money. I said no, I have young children, I have to look after them, I cannot give you money. We started fighting. They started beating and kicking me and then one of them said, leave him now. We'll come next time. I went inside and I told my dad and he said, don't leave the house, stay inside the house.

   19.In May 2009, the Pakistani army led a huge operation against the Taliban in Swat, and we were all told to leave our homes and go to other cities. Like many others, I relocated our family to Peshawar as Internally Displaced People, or IDPs. When we were in Peshawar, we received some help and assistance from the UNHCR including food packages. After the army declared victory against the Taliban, in around June or July 2009, we returned to Swat.

   20.There had already been a peace committee, or Village Defence Committee ("VDC") operating in Swat before we left. But after we came back, from Peshawar, many people came forward from my village and others to join the committee to fight the Taliban in the open. Many of the other deployed army in Swat were from other regions of Pakistan and were unfamiliar with the area. We helped them settle in the area to fight the Taliban. I joined in early 2008 but at this time, the committee operated underground, or secretly, because it was too dangerous to operate out in the open.

   21.One of my cousins, [Mr B], also became a member of the committee. The Taliban started targeting those who opposed them in the past and those who joined this committee. My cousin, [Mr B] was kidnapped by unknown people in or around March or April 2009. He remains missing.

   22.I started working for the committee as often as I could. We would do night watches. My father and my uncles were also supporters of the Awami National Party but l was not fussed about the party. I support the aims of the AMP but was not active myself in support of the party. However, my family was associated with the AMP which also makes us all at risk from Taliban.

   23.On that point, I confirm that my family did not stay in the same house in [Village 1] from 2010 onwards. From early 2010, when we were targeted, we did move around. Sometimes we went to other villages to stay with family, like my maternal uncle, or my aunty. Sometimes we stayed for a month or more. Generally, we stayed with my relatives, who resided in [Village 1] and another village called [Village 7] in Swat, where my father-in-law's house is.

   24.[In] January 2011 when we were performing night watches, I was watching a particular street, and I saw a few members of the Taliban go into a house, and I called the army, and said a few Taliban went to that house. The army came, and I was still on night watch. I knew that they were Taliban because they were covering their races with a type of traditional scarf. They did not want to show their faces. The army came, and captured them.

   25.I also had to go from house to house in the village, telling people whose turn it was to undertake watch duty, and I had regular meetings with the army. I would update them as to which houses had Taliban members living inside. The Taliban realised that we were working on night watch.

   26.I was in communication with the Peace Committee while I was overseas, at sea, and they would tell me what was going on. I would call my friends on the telephone and ask them what was going on and they would tell me that their lives were at risk but the army was helping them, and it was still not safe.

6. The Tribunal notes the applicant’s submissions in respect to the previous Tribunal hearing as follows:

   The previous Tribunal findings

   27.The Tribunal accepted that my son was killed in [2007], but he did not accept that it was a personal attack. I wish to clarify that the other people killed at the [Location] were also villagers from my town. I accept that my son and I were not specifically targeted, but the Taliban later accepted responsibility for the attack, they announced this on the television news that they had done this. My son's death inspired me to join the Peace Committee to oppose the Taliban formally in early 2008, but I was not very active because I had long stints overseas because of my employment on the ship. It was not until 2010 when i became a more active member, and was promoted to a higher-ranked member, or leader.

   28.I wish to address an issue raised in para [17] of the Tribunal decision. [Mr B], my cousin, was very involved with the army, helping them, hut he was abducted in the evening about nine pm one night in March or April 2009. My cousin’s neighbours reported that some people had come to the door asking for his help with a generator repair, as there was an electricity problem in the area. They pretended to be harmless. It was only later after he'd gone with them that we realised they were Taliban, because he never came back. It has become clear that he was kidnapped. The Taliban are the only logical group who would have had a reason to target him,

   29.He was already working for the Peace Committee. He used to tell the army where Taliban members were located. The previous Tribunal said that at my first hearing, I gave evidence that the Peace Committee was established in early 2010. I wish to clarify that from at least 2008, before we went to Peshawar as Internally Displaced Persons, the Peace Committee was operating underground, not in the open, because it was too dangerous. The Taliban was in total control at that time, and would shoot anyone dead who opposed them. When we came back from Peshawar, the Peace Committee was operating in the open, no longer underground. Accordingly, my cousin was kidnapped, in my opinion, as a result of his work for the Peace Committee. He was active against the Taliban. He is still missing.

   30.I wish to address the concerns of the previous Tribunal regarding my dates in and out of Pakistan. I told a friend called [Mr J] about my claims and he helped type them up for me in the statement signed 14 November 2013. I indicated to the Tribunal that I had been in Peshawar and [Village 1] from late 2009 until around mid-2010. This is a bit vague, but it is accurate as best I recall. I was in Peshawar for two to three months and then returned to [Village 1]. The Taliban was still targeting people when I came back to [Village 1] in early 2010 from Peshawar. Additionally, it is correct that I travelled in and out of Pakistan as a seaman as a ship crew member between October 2009 and October 20l0. Sometimes, there was no work. It was not a constant trip for the entire twelve months but rather multiple trips.

   31.I understand that the Tribunal was concerned that I was not a `leader' in the Peace Committee. I was the third ranking person in my peace committee, and there were about four of us, and about thirty or forty active members. When I travelled in and out of Pakistan for my job as a crew member, other people stepped up and filled the leadership position. Accordingly there was some flexibility with my responsibilities. Also, it was only when I returned from Peshawar that I became one of the four leaders. Before that, I was lower in the hierarchy.

   32.The Tribunal mentioned that l said I was a manager in the Peace Committee. In Pashto, the words for Manager and for Leader are largely interchangeable. I understand that the Tribunal thought that I would have raised my leadership role curlier in my immigration process. I did not realise the importance of explaining these kinds of details at the time and I wish that I had have known to say as much as possible in my first statement of claims. I was assisted by a person called [Mr J]. I did my best to tell [Mr J] everything, and I thought I told him about that attack. However, it was a long time ago, and I did not speak or read English. I had to trust him to write everything down. He was helping me as a friend and did not charge me money. I was not trying to later exaggerate my claims for protection. [Mr J] did not ask me about my seniority within the organisation and I did not think to raise it.

   33.The Tribunal was also concerned that I did not mention the death of Bahre Karam in my protection visa interview. I find explaining my case stressful and have ever since the process started. If I had have been asked about him directly, I believe I would have been able to answer the questions. I have always known who he was. He is very famous among the Peace Committee members and was very active. Everyone in Swat knows him.

   Telephone threats

   34.I seek to clarify regarding the number of calls from the Taliban as addressed in para [22] of the Tribunal’s decision. I received approximately four telephone calls from the Department before leaving Pakistan. One was in late January 2011, one in April 2011, and another one around the same time. Then on or around [July] 2013, they called me again, but from a different number. Each call sounded like a different person calling. I used to leave my number around the area on notice boards in case people needed help to call me, in case the Taliban bothered them. People would call me, and then I would call the army. But this made life more dangerous for me as the Taliban could also call me. It was known that I was a prominent member of the VDC.

   35.As I explained in my first statement of claims, the first phone call was from a man who told me that I had handed their members over to the army, and they would soon target me. After this phone call, I asked the army for my protection, and they gave me a gun licence, so I could carry a gun with me for my safety.

   36.I also received a threatening phone call in April 2011. He did not introduce himself. He said something like, this is your number, one day we will find you, you cannot hide yourself. He did not say he was Taliban, but I assumed this as there is no one else it could have been. The second call was very similar in content but do not know if it was the same person.

   37.[In] July 2013, the person who called referred to the fact that I was still working for the committee despite previous threats. He ordered me to discontinue my support for the committee and I refused. Then he said he would soon kill me, or something to that effect. After this particular threat, I went to Karachi, and started applying for a shipping job, as I was concerned that the threats had escalated and that I would soon be killed.

   April 2009 attack from Taliban

   38.The Tribunal was concerned that I did not mention the incident about being beaten up in April 2009 in my first hearing, and that l did not mention the visit to our house where we were asked for money in my first statement of claims. To my best recollection, I was not asked directly about the April 2009 beating in my first hearing. The Taliban used to come to everyone's house. I maintain that I was attacked by the Taliban in April 2009. However, it happened a long time ago.

   January 2011 attack from Taliban

   39.I was attacked again by Taliban in or around January 2011 when they came to my house and asked me for money. There were four of them. The Taliban targeted people who had worked in [Countries] or elsewhere. They thought I would have money because I worked.

   40.The phone call threat I referred to earlier in this statement occurred first. Then this attack occurred. After that, I was attacked at the fire, as detailed below. I saw this as an escalation and was clearly becoming a target.

   February 2011 attack from Taliban

   41.In terms of the date of the attack from the Taliban, I seek to clarify that I believe my best recollection took place in or around [February] 2011. I believe that when I gave my answer at the Tribunal last time, indicating that it was in April 2011, I made an error. However, in response to the Tribunal's concern that the Taliban had the opportunity to kill me, after making a death threat and then chose not to, which the Tribunal did not believe, I confirm that people started firing on the Taliban. I thought at the time that they were trying to kidnap us, and it is correct that my friend and I were on a night watch sitting around a fire. Five or so Taliban came with sticks and started beating us, kicking us, and punching us. In the process, my [hand] got broken. When the army arrived to back us up, after we started screaming, and after other people on a watch raised the alarm, most of the Taliban ran away. The army started shooting at the Taliban. Two members of Taliban were injured and arrested by the army. As I told the last Tribunal, a friend who could see us, called the army on his mobile.

   Taliban ‘hit list’

   42.I refer now to the Tribunal's concerns about the ‘hit list’ which I was on. They did not ask me about it at the Protection visa interview. The Tribunal had some doubts about the quality of my evidence regarding the hit list. As I explained to the previous Tribunal, the list was put up on the wall of a shop in our local market, around the end of 2012. My brother told me that my name was on the list, and then my father told me to leave this place. He said that I had a lot of responsibility, that a lot was on my shoulders - if I was killed, it would be a big loss for the family. He told me that no one could look after the family.

   Hearing on 27 August 2019

1. On 27 August 2019, the applicant attended a hearing at the Tribunal to discuss his claims and evidence. The applicant was represented.

2. The applicant was made aware that the Tribunal could consider all of the information he had given to the Tribunal including information previously provided to the Tribunal about his protection review application.

3. He indicated he was illiterate, and he could not read or write in any language. He said he only ever did [Number] years of school in his life because his family was very poor and just worked on the farm growing [crops] in Swat, Pakistan. He said the farm is still there and his father is running the farm.

4. He said he was a Sunni.

5. He said he was a merchant mariner and his duties were to [do a job task] at sea, where he served aboard ships involved in transporting [goods] at sea. He indicated the [goods] would be transported to [Countries]. He has also travelled to [Country]. He has travelled by sea from [Country] to [Country] transporting [goods]. He said he did come to Australia by sea multiple times in connection to transporting [goods] at sea. He said his sea service was from 2003 until 2013. He said he came ashore in Australia multiple times, and for the last time at [Location] in October 2013. After he went ashore in [Location], he came to [another city] and applied for protection.

6. The Tribunal noted that the last hearing before the Tribunal was some time ago but asked if all the information he had given to the Tribunal in 2016 was the same, and in response he indicated that all of the information was the same and that there was nothing different about the information he had given in 2016 that he wanted to correct. He indicated that all the information he had given to the hearing in 2016 was correct in every detail.

7. The Tribunal asked the applicant if he went back to Pakistan where would he go and asked if he would go back to his father on the farm.  In response he said he could not go there. He said he could not go anywhere in Pakistan or he would be dead.

8. When asked why he thought that, he said that he was illiterate. When asked again why he thought that, he said he was against the Taliban and for that reason he is a target.

9. He said he lived in Pakistan but that he never lived anywhere else, but that he would go to Karachi to board the ship. He said he had not ever lived in Karachi. He said he had a wife and [Number] children and they lived with his father in [Village 1] in Swat – [Number] kilometres from Mingora. He said that his children sometimes visit his wife’s father.

10. When asked why he feared going back to Pakistan, the applicant said he witnessed beheadings of people by the Taliban and he feared they would do the same to him. He said there was bomb blasts in the mosques. He said the situation has not improved in Swat.

11. When the Tribunal asked the applicant what he did to attract the adverse attention from the Taliban, he said he was cooperating with the army and that’s why he was targeted. When asked whether he was at sea (at the relevant time), he said was at sea for 6-7 months and then came back home. He said his son died and was sending his brother to school.

12. When asked what cooperation he did with the army, he said when the hatred against the Taliban increased, the army did not know where they lived so he pointed out houses of where the Taliban lived. He said he was bullied by the Taliban. 

13. When asked what he did with Taliban that they wanted to kill him and still want to kill him if he went back, he said he was showing Taliban houses to the Army, and also he was ordered by the Pakistani Army to look for the Taliban in the paddocks. When asked where he was looking, he said he was walking around fields looking for the Taliban because the Army was not familiar with the environment.

14. When asked if there was anything else he did, he said he was always in the service of the Army, and would always follow the Army’s instructions. When asked for an example of such instructions, he said if the Army had a raid that he would go along with the Army and help the Army, but he himself would not ever go on the raid with the Army. He said he just pointed out locations of the Taliban, and the Army would do the raids. He said the Army gave him a weapon and while he has fired the weapon he never shot at a person. He said the Army gave him a rifle for self-protection but he never needed to use it.

15. When asked why the Taliban would want him dead, he said he undertook activities against them. The Tribunal asked the applicant what communication he got from the Taliban that made him think they wanted him dead, and he said they threatened him 2-3 times over the phone and also on the fence wall of the mosque. He said the threat on the mosque wall happened when he was in Pakistan, but he could not recall the exact date the threat was put on the mosque wall, maybe January-February 2011.  He said he saw the list, as did everybody in the mosque including his father. 

16. The Tribunal discussed a number of the incidents raised by the applicant in his claims.

17. The Tribunal questioned the applicant as to why he did not go ashore when his ship came into port in Australia in 2012, but chose to return to Pakistan at that time. The applicant gave evidence that he simply remained in hiding for about 15-16 months when he went back to Pakistan but that he still feared for his life when he was there. He indicated that he continued to work at sea when he could but that in 2013 he decided he wanted to go to Australia, and so he decided that he would go ashore when he got to Australia and seek protection in Australia. The applicant spoke about how much he missed his family. 

18. When asked if there had been any further threats or incidents of harm since he left Pakistan in 2013, he indicated that people with covered faces went and asked his father when he was coming back, but that this happened about five years ago and there had been no further threats since then, and no threats to his wife, children or any other family members. The applicant spoke about his mental health.

19. The Tribunal discussed country information with the applicant indicating that the security situation in Swat had improved. However, the applicant indicated that he still thought that there would be a danger to his life if he returned to Pakistan.

20. The applicant’s representative then made oral submissions addressing country information and the applicant’s risk profile.

    Written submissions

21. The Tribunal has received a significant amount of written submissions and documentary evidence post the hearing. The Tribunal was requested further time in which to provide further information and that time was provided.

22. The Tribunal has been provided:

    -    a psychology report [dated] [January] 2018,

    -    copies of the applicant’s prescriptions for his antidepressant medication,

    -    documentation in respect to the applicant’s claims regarding a work related injury from [May] 2018.

    -    a copy of the Certificate of Capacity for his work-related injury [in] May 2018.

    -    A psychology report from [a second psychologist] dated [September] 2019.

23. Written submissions were provided dated 10 September 2019 and 21 April 2020 that included further country information.

    Country Information

24. The Tribunal has had regard to the DFAT Country Information Report for Pakistan dated 20 February 2019. The following paragraphs are relevant: 

    SECURITY SITUATION

    2.66  The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.

    2.67  Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

    2.68  Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).

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

    ……

    Security Operations

    2.75  The Pakistan armed forces (see Military and Intelligence Services) 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 (NWA), 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 (see Police, Frontier Corps and Rangers and Military and Intelligence Services).

    2.76  In December 2014, the APS attack (see Education) 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. The NAP ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2.

    2.77  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. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel.

    2.78  In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province.

    2.79  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.

    …

    2.84  Despite official disruption efforts, the TTP and its affiliated networks remained the greatest security threat to Pakistan, with the highest overall number of attacks in 2018. TTP is the largest banned group in Pakistan and was responsible for 79 terrorist attacks across the country, resulting in 185 fatalities and 3336 injuries in 2018 (compared to 70, causing 360 fatalities and 360 injuries in 2017). The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into several separate groups reflecting Operation Zarb-e-Azb, leadership tensions and the rise of ISIL. Nevertheless, in early 2017, a number of these splinter groups re - joined the TTP or pledged support for its leader. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned. TTP's level of cohesion waxes and wanes depending on the leadership. Even when TTP undergoes cyclical splintering, the disparate networks remain dangerous and willing to break any short -term agreements they may reach with the Pakistani state.

    Findings

25. The Tribunal has carefully considered the applicant’s claims and evidence as detailed above.

26. The Tribunal is conscious that the applicant’s credibility has already been the subject of significant discussion by the Tribunal. The reasons for such discussion and the concerns raised about the applicant’s account of what he claimed actually occurred to him in Pakistan are entirely appropriate and valid.

27. The Tribunal notes that in the four years since the Tribunal initially heard the matter, further information has been provided in an endeavour to address the Tribunal’s concerns. Having regard to these issues, the Tribunal makes the following findings.

28. The Tribunal finds that a) the applicant is [Name] born [Date 1], b) the applicant is a citizen of Pakistan, and Pakistan is his receiving country.

29. The Tribunal finds that the applicant is from [Village 1] Swat, Khyber Pakhtunkhwa, Pakistan and that he has a wife and children who are currently living in [Village 1], as is his father. 

30. The Tribunal accepts that the applicant’s ethnicity is Pashtun and that he is a Sunni Muslim.

31. The Tribunal accepts that the applicant worked on the family farm but then he worked in merchant shipping as a crew member whose primary duties were [job tasks].

32. The Tribunal accepts that the applicant worked in merchant shipping from 2003 until he went ashore in Australia in 2013 in order to apply for protection.

33. The Tribunal accepts that the security situation in Swat deteriorated from 2006 onwards but that the security situation has improved in recent times.

34. The Tribunal accepts that one of the applicant’s children, his [son], was killed [in] 2007 by a suicide bomber in [Village 2], Swat.

35. The Tribunal accepts that the applicant joined the “peace committee/Village Defence Committee (VDC)” in [Village 1] in early 2008.

36. The Tribunal accepts that at the end of April 2009 the applicant was beaten up by some members of the Taliban for not giving them money.

37. The Tribunal accepts that the applicant and his family went to Peshawar in May 2009 and then subsequently returned to Swat.

38. The Tribunal accepts that the applicant’s cousin, [Mr B], was kidnapped in around March or April 2009 and remains missing. The Tribunal accepts that [Mr B] worked with [the applicant] as part of the peace committee/VDC.

39. The Tribunal accepts that the applicant received approximately four threatening telephone calls from the Taliban before leaving Pakistan – one in late January 2011, two in April 2011 and one in July 2013.

40. The Tribunal accepts that in January 2011 the applicant was again attacked by some members of the Taliban when he refused to give them money.

41. The Tribunal accepts that in February 2011 the applicant was attacked by some members of the Taliban when he was on night watch.

42. The Tribunal accepts that around the end of 2012, the Taliban put a list on the wall of a shop in their local market, and [the applicant]’s brother advised him that his name was on the list, and his father warned him that it was time to leave.

43. The Tribunal accepts that the applicant used to go on night watches and help the Pakistani Army.

44. The Tribunal accepts that the applicant does not like the Taliban and is opposed to the Taliban.

45. The Tribunal accepts that the applicant father and uncles were supporters of the Awami National Party (ANP).

46. The Tribunal accepts that the applicant is an illiterate, [Age] year old man, who has physical health issues and ongoing mental health issues.

47. The Tribunal accepts that the COVID-19 pandemic situation is currently underway throughout the world. It is a global event.

48. In all the circumstances above, and having due regard to the country information above, the Tribunal has concerns about the fragility of the current security situation in Pakistan, but in particular to the applicant’s home area of Khyber Pakhtunkhwa in Pakistan.

49. Indeed, it is possible that the applicant could return to [Village 1] and there may be a chance of him being harmed by an extremist because of his previous activities in opposition to the Taliban many years ago, including the applicant’s family who still live in their home area of [Village 1]. It appears that Swat is a place where people can go skiing and to which tourists can travel to marvel at as the “Switzerland of Pakistan” but at the very same time is also a place that is not free from the adverse influence of extremists that seem to be ever present and can flare unexpectedly. There is however no question that, from the time of the worst circumstances in Swat only a few years ago, the Pakistani government has made significant gains in terms of increased security in Swat and Khyber Pakhtunkhwa as a whole.

50. In consideration of the above information, the Tribunal is not satisfied that the security situation has sufficiently improved to a situation where the Tribunal could reasonably find that there is not a real chance of serious harm to the applicant, given his circumstances and risk profile as identified, should he return to Pakistan in the foreseeable future. Accordingly, the Tribunal accepts that the applicant does have a well-founded fear of persecution from individuals in the Taliban who would remember his previous involvement in opposing the Taliban. The Tribunal accepts that the applicant is a member of a particular social group, that group being a former VDC member of Swat Valley and also he was a known activist against the Taliban. Therefore, the Tribunal finds that there is a real chance of serious harm to the applicant, given his circumstances and risk profile as identified, should he return to Pakistan in the foreseeable future.

51. Based on the country information in Part 5 of the DFAT Country Information Report for Pakistan dated 20 February 2019, the Tribunal is not satisfied that the applicant would receive effective protection from the Pakistani authorities, considering the report states that that DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.

52. In addition, the Tribunal is not satisfied that the applicant would reasonably be able to relocate within Pakistan, given his current mental and physical health problems, together with his age, and poor education level.

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

    DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958 (Cth).

   Joseph Lindsay
   Member