1725586 (Refugee)

1725586 (Refugee) [2022] AATA 2495 (3 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Barbara Osafo-Kwaako (MARN: 1571377)
CASE NUMBER:  1725586
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Scott Clarey
DATE:3 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 3 May 2022 at 3:41pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion and politics – fear of harm from extremist groups – work on infrastructure projects in remote areas, affiliation with political party and assistance to internally displaced persons – threats, attacks and extortion attempts – inaction by local police – voluntary returns – country information – recent political instability – state protection not effective and relocation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1), (4), 36(2)(a), 65
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 October 2017 to refuse to grant [the applicant], a citizen of Pakistan, a protection visa under s 65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 19 October 2017, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
[The applicant] appeared before the Tribunal in Melbourne on 11 May 2022 to give evidence and present arguments. [The applicant] was represented by Mrs Barbara Osafo-Kwaako. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
In [the applicant]’s protection visa application, he stated that he is a [Age]-year-old Pakistani national born in [Village] [District 1], Khyber Pakhtunkhwa, Pakistan, on [Date]. He is a Sunni Muslim and claims to be of the Yousafzai ethnic group. He was married [in] 1993 in Rawalpindi, Punjab province, Pakistan. [The applicant] stated his father is deceased and his mother resides in Pakistan. He stated he has [siblings], one sister currently in Pakistan and [brothers] residing in Australia. As per [the applicant]’s protection application, he stated he was a director of a [company] in Pakistan prior to his arrival in Australia. At time of protection visa application, [the applicant] stated he was unemployed.
[The applicant] first arrived in Australia [in] March 2015 on a Visitor visa (Subclass FA-600) granted to him on 3 February 2015, valid until 23 April 2015. [The applicant] first departed Australia [in] April 2015 returning to Australia [in] January 2016 on another visitor visa. He then departed Australia once more [in] May 2019 returning into Australia [in] July 2019, which was the last arrival of [the applicant]. On 31 March 2016, he lodged the protection visa application that is the subject of this review and was granted an associated bridging visa.
On the basis of the copy of [the applicant]’s passport provided to the Department, I accept that he is a citizen of Pakistan and that his identity is as he claims it to be. I accept that Pakistan is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims and evidence
Evidence before the Department
[The applicant] submitted the following statement (signed and dated 31 March 2016) alongside his protection visa application (unedited):
Introduction
I was born on [Date] in [Village] [Tehsil] [District 1] in the province of Khyber KakhtunKhwa (KPK) Pakistan.
I am married to [Ms A] and together we have [children]. My family members currently live with my mother in Rawalpindi Pakistan.
I am a Pashtun and Sunni Muslim.
I arrived to Melbourne Australia [in] January 2016 on a Tourist Visa Subclass 600.
The Country to which I fear returning
I fear to return back to Pakistan.
Why I left that Country
I left Pakistan due to threats from the terrorist group Tehreek e Taliban Pakistan (TTP). We were targeted to Taliban due to our work in Telecome Industry and our political affiliation with Awami National Party (ANP).
Following my father in politics, I joined ANP in about 1990 and since then I have actively participated in ANP activities. I joined ANP because it is the only party who stood for the rights of Pashtun. I have campaigned for ANP during elections and have taken part in other activities organised by the party.
The situation in Pakistan was stable and there was peace in Pakistan until 9/11 when United States attacked Taliban in Afghanistan. Pakistan share more than 2200km border with neighbouring Afghanistan. It was not possible for Pakistan to secure the whole border with Afghanistan and many Taliban freely flee Afghanistan and crossed the border to neighbouring FATA and into our Province KPK. Taliban are currently working under the leadership of Mula Fazullah in Pakistan and are actively targeting Government employee, Police, Army, Political people and anyone who disobeyed their orders.
Due to our contract work from Telecom companies our work was based in remote areas installing mobile tower. In about September 2008 when I was installing a mobile tower with my brother [Mr B] and our team a group of Taliban approached us. They were very rude and angry and asked us to stop building these mobile tower sites as it spreads evil in the society and helps the security agencies to trace their calls. When my [brother] started arguing with them they started kicking us and beat us with their gun butts. They left with a warning that if we continued building these towers they will kill us. After this incidence we temporarily stopped working Malakand Division due to fears from Taliban.
The situation in PKP was becoming out of control as Taliban have killed many innocent people especially the Police force, Amy, Political people and People who disobeyed their orders. Taliban have destroyed many Police stations, Government Infrastructure and Schools PKP. Our party ANP tried their very best to negotiate with Taliban but were not successful to persuade them to bring them to Table talks to find a solution and bring back the peace. Finally our leaders from ANP requested the Federal government to launch an Army operation against Taliban. Since the Army began an Army operation against Taliban they have targeted many of our leaders, party workers and their family members.
The Army started an operation from Malakand Division and further extended the military operation to FATA and North Waziristan. Local people of these areas were forced to leave their home as Internal Displaced Peoples (IDP’s). Many of such families came to our village and we provided them shelter, food, clothing and other necessities of life. Our leaders from ANP supported us in this great cause. We tried our very best to help as many people as possible and to provide them the basic needs for their day to day life and our party provided us all the financial support.
In May 2010 when we were in our [village] my brother [Mr B] received a threatening letter from the Taliban that he along with his other family members support ANP which is a secular party. They ordered us to stop supporting ANP and instead support their organisation. They ordered us to pay 3 million rupees in extortion or they will target our children. For our family safety we went to Karachi with our children to live with our in laws.
Due to the nature of our business we got some contracts from Telecom companies to built mobile towers in Karachi Sindh province. Karachi is the biggest city of Pakistan and people from different ethic groups including Pashtun and Mohajir lives here. Due to military operation in KPK and FATA, many Taliban left those areas and they came to Karachi from where they continued their activities. They started abducting people for extortion and target killing to support their organisation stance. In Karachi there is a strong hold of our political party ANP and I continued my activities for ANP in Karachi along with my brother [Mr B]. We had good relationship with our ANP Sindh Province [official] [Mr C] who is well known to our family. I would frequently visit our party leaders in Karachi and would participate in party activities.
I continued my work for ANP along with my brother [Mr B] and in about December 2012 my brother [Mr B] received a call from an unknown caller. The person claiming to be a member of Taliban told my brother “that we install Mobile tower and the mobile sites helps spread the vulgarity/nudity and evil through social media. The caller also told him that we also participate in ANP events and activities. He ordered him to abandon our work for mobile companies as well as ANP or they will make an example for others”. [In] January 2013 when my brother [Mr B] was returning home in the evening, he was approached by two motorcyclists who open fire towards him. He managed to escape from them unharmed. After this incidence we left Karachi and went back to Rawalpindi Punjab for our safety.
We started our own [company] in Rawalpindi and I took the position of Director in our Company. My brother [Mr B] becomes the Chief Executive of this company. We deployed many mobile sites in our province Khyber PakhtunKhwa. In about August 2015 my brother was threatened by Taliban over the phone by saying that despite their previous demands we haven’t yet assisted them financially. The caller told him that he knew that we lives in Rawalpindi and we should immediately stop our mobile tower installation work and withdrew our support for ANP. They threat him that they will kill him very soon if we continued to spread the evil in society. After this treat we hired a private guard to accompany us whether we go for our safety. At this point of time I advise my brother [Mr B] to leave the country. He then applied for a Tourist visa to Australia.
[In] November 2015 my brother was on his way to our field at [Location] KPK his car was fired by unknown gunmen. The gunmen were on a motorbike and our private guard also open fire towards them. The attacker drove fast and disappears. Luckily no one was injured but a bullet hit the window of our car. The matter was reported to the local police who began an investigation but nothing has yet happened. My brother visa to Australia was granted and he left for Australia [in] December 2015.
After my brother departure I continued my work for our company as well as for our political party ANP. [In] January 2016 I received a call from an unknown caller. The caller told me that he is a member of Taliban and despite their previous calls we havne’t yet provided the 3 million rupees they previously demanded for. He told me that we have disobeyed their orders in the past and are still working for mobile companies and supports ANP. The caller told me that they knew that my brother has left the country and they will very soon kill me so no one can disobey their order in future. During this time my tourist visa to Australia was granted and I arrived to Melbourne Australia [in] January 2016.
What I fear may happen to me, by who and why, if I return to that Country
I fear I will be killed by TTP due to our political affiliation with ANP. They are attempted to kill my brother on two occasions but he survived from their attacks. Taliban are very powerful and their organisations have intelligence throughout the country and they have the power to target anyone anywhere including government employee, ruling Politician, Army personnel and they can even target our International Airports. They have assassinated our political leaders including ex Prime Minister of Pakistan Benazir Bhutto so it will be very easy for them to target me. We have disobeyed their orders and failed to pay them the ransom amount. We also continued our work for Telecom companies and ANP despite their threats as we want our country to be prosperous and for these reasons we have been targeted to Taliban.
Did I experience harm in that country
Before coming to Australia I have been threated by Taliban over the phone that they will make an example for others as we failed to pay them the ransom amount and were working for our company and political party who are against their organisation. My [brother] [Mr B] was twice attacked by Taliban due to our work and political affiliation with ANP but he was lucky to survive from their attacks.
Did I seek help within the country after the harm?
In September 2008 we were beaten by Taliban we reported matter to security agencies in Malakand Division but they advise us to be cautious as Taliban are very powerful. When my brother was attacked in Karachi and [District 1] he went to local police station there to lodge a formal complaint but as the perpretator were unknown they refused to file the report and asked us to be careful. They advise us that there is a big operation going on around the country against insurgents and the cannot look into specific complaints against unknown persons.
Did I move or try to move to another part of that country to seek safety
We moved to other parts of the country including Karachi and Rawalpindi for our family safety. Taliban are widely spread throughout the country and they easily find out our movement. We have tried to change our contact details including our office but due to their strong network they find out about our where about. I fear if I was sent back to Pakistan Taliban will easily find out about my return and they will target me no matter which part of the country I move to.
Do I think I will be harmed or mistreated if I return to that Country
I fear I will be harmed or mistreated by Taliban and their allies. Taliban are part of a strong organisation and they are against our work for mobile coverage extension and our political activities for ANP. I believe if I was sent back to Pakistan Taliban will try to harm me.
Why I think the authorities of that Country cannot or will not protect me if I were to go back to that Country
There is a country wide operation going on against Taliban in our KPK and FATA. Due to these operations Taliban are out of scene but are actively involved in target killings. They have killed many members of our party and people who have disobeyed their orders or failed to pay ransom. We have been to the police and Army to report our matters to them against Taliban but they failed to lodge our report. The authorities back home are helpless against Taliban and they are targeted by Taliban on a daily basis throughout the country. Taliban still carry out major attacks against the military and public. The authorities cannot provide me proper protection against Taliban to which I am entitled to. I am a common business man and Taliban can target me anywhere in the country including the military bases and our international airports. Due to the status quo culture Police are usually only deployed with senior government officials. It is very hard to for Police to protect the life of a common man from such barbaric terrorists who kill in the name of religion and their outfits are motivated by religion. We have hired a private armed guard but my brother was still targeted by Taliban in his presence.
Why I think relocation to another area in my country is not a reasonable option
I cannot safely relocate to other area of the country as Taliban network is spread throughout the country. We have previously relocated to Karachi and Rawalpindi where my family members still live now but Taliban find out about our where about. I fear if I was sent back to Pakistan Taliban will find out about my return and they will find me in any part of the country where I move.
I therefore humbly request to The Honourable Australian Government to help save my life from the ongoing cruel treatment of Terrorists by granting me a Protection visa. We are all human beings and could die of any natural reasons however if I’m killed by Taliban on my return to Pakistan it will not only devastate the lives of my children but will also leave an unrepairable damage to my upcoming generations in the form of a long lasting hate.
Evidence before the Tribunal
In addition to a comprehensive legal submission (dated 3 May 2022), I note that a significant amount of new information was provided to the Tribunal by [the applicant]’s representative prior to the Tribunal hearing on 11 May 2022. I note that much of this evidence was new information that had not previously been provided to the Tribunal or the Department. This new evidence included:
·     Copies of [Airline] return airline tickets from Melbourne to Islamabad issued 16 August 2019, departing [Day] August 2019.
·     Accountant records for [the applicant] dated 17 January 2021.
·     Insurance by [named WorkCover insurance] for [the applicant] dated 1 April 2021.
·     Reference letter from [Mr D] dated 29 April 2022.
·     Reference letter from [Mr E] dated 21 April 2022.
·     Reference letter from [Mr F] dated 21 April 2022.
·     Reference letter from [Mr G] undated.
·     Untranslated medical records from [Mr H] dated 22 October 2018.
·     Handwritten medical records by [Clinic] dated 15 April 2022.
·     Photograph of [the applicant]’s flight itinerary from Melbourne to Islamabad.
·     Passport scan of [Mr I]’s passport with Pakistan entry stamp.
·     Undated translated letter from the Taliban Movement of Pakistan.
·     Undated translated letter from the Tehreek-e-Taliban Pakistan (TTP).
·     Untranslated Marriage Registration Certificate.
·     Translated (Urdu to English) Marriage Deed dated 22 October 2021.
·     Reference letter by [Mr D] dated 29 April 2022.
I note that a letter, (undated but translated in April 2022) from the ‘Tehreek-e-Taliban Pakistan North Waziristan and Bajaur Branch’ addressed to [Mr B], stated:
It is informed that you, [Mr B] son of [Mr J] resident of Rawalpindi, have been repeatedly conveyed through different means to stay away from the mishran [local elders] and functions of the Awami National Party but you have paid no heed. Now this is being finally informed you that our men who are fighting against the crusade forces for the sake of divinity of divine religion, will take you to task. You would be yourself responsible for any loss.
I note also that in another letter, (undated but translated in April 2022) from the ‘Taliban Movement of Pakistan and Afghanistan’, stated:
You have been warned many times to stop supporting infidels; The Awami National Party is helping the infidels and harming Islam and Muslims. You are still installing infidel mobile towers on which the Pakistani army is spying on our Mujahideen and harming the Mujahideen. You should pay a fine of Five Million Pakistani rupees to Tehreek-e-Teliban Shura. And if you do anything further to harm the movement when wash your hands from your life.

I note that in a signed witness statement (dated 29 April 2022), [Mr D] stated (unedited):
…[the applicant] is a very hard working and dedicated person and always look for innovation and service excellence. In early 2000’s with introduction of telecom industrials projects, [the applicant] commenced contracting works with multinational telecommunication companies, where the projects he was involved in was to install infrastructure related to communication towers and associated civil works.
To best of my knowledge through [Mr I] who settled in Australia later, [the applicant] whilst doing well in Telecom sector contracting works had rough times in undertaking works in the remote area due to his and his late father’s political affiliations and other extremist Islamic opponents.
At the Tribunal hearing on 11 May 2022, I discussed at length with [the applicant] various aspects of his claims and specific details of the issues he claimed to have faced in Pakistan. I note that [the applicant] gave oral evidence that was largely consistent with his previous accounts of these claims and issues, and also the written submissions that have been made by him and on his behalf. [The applicant] said he was born and grew up in [District 1] in the [Division] of Khyber Pakhtunkhwa province, Pakistan. He is a Sunni Muslim and a Pashtun. He has [brothers] and one sister. His father has passed away and his mother is still alive. [The applicant] stated that he completed schooling up to Year [grade], before working in the construction industry. [The applicant] said he was involved in the construction of mobile phone towers, including owning his own business as a contractor to the telecommunications industry. [The applicant] was married in 1993 and has [children], all of whom are currently living in Rawalpindi, Pakistan.
I asked [the applicant] to provide further information about his work in the construction industry relating to his claims for protection. He said he started working in the Swat district in 2008 constructing mobile phone towers. He said that he was approached by members of the Pakistani Taliban (TTP), who had a strong presence in the area, and told to cease doing this work because they were opposed to the construction of the towers. [The applicant] said that they were opposed to the tower construction because they believed the technology was one means through which the authorities tracked their activities and movement, and because it also helped spread information (via the internet and mobile phones) to young people in the region that they believe to be Islamic and immoral. He said that on one occasion when he was constructing the base of a tower in the Swat district, he and his workmate were approached by a number of men and told to cease their work. [The applicant] said he did not initially realise the men were from the TTP, so he got into an argument and began to physically fight with them. He said that they produced weapons, and that he was hit in the head with the base of a tool. He said similar incidents happened on a number of occasions, and they eventually stopped working on the towers. [The applicant] said that in 2010 he received a letter and a phone call from the TTP telling him to stop work on mobile phone towers in the Swat district. He said the TTP men also knew about his affiliation with the ANP political movement. [The applicant] said he was so spooked by these threats that he and his family fled to Karachi. I note that [the applicant] has provided a copy of this letter from the TTP (accompanied by an accredited English translation) that appears to confirm these claims.
[The applicant] stated that after he had established himself in Karachi, another incident occurred in 2012 when he and his brother were attacked by the TTP. He said that he and his brother were fired at from a car that then sped off. He said that after this he moved to Islamabad in 2013 but that he was again targeted and threatened over the phone by the TTP. He said that he was also attacked again by armed assailants, and his car got shot at. He said that the attacks were related both to his work constructing mobile phone towers and his affiliation with the ANP in the Khyber Pakhtunkhwa province. [The applicant] stated that these attacks coincided with a major Pakistan military operation targeting the TTP in the Swat region. He said that at the time, the ANP were in power in Khyber Pakhtunkhwa. He said that in addition to these political motives, the TTP were also trying to extort money out of him to help fund their cause, and he was asked to hand over approximately 2 million rupees.
I questioned [the applicant] about his relationship with the ANP political movement. He said his father, and his grandfather before him, had been card-carrying members of the ANP and were actively involved in their activities. [The applicant] said that he himself had become been introduced to the movement by his father and become involved while he was still alive, and continued his activities after his father’s death. I asked [the applicant] if he was a member of the ANP. He said that he was not, but he was actively involved in their work. I asked [the applicant] specifically about what party activities he had been involved with in Pakistan. [The applicant] stated that he had primarily been involved with [certain] work that was organised and funded by the ANP. He said that many Pashtuns had been displaced by the military operations in the Swat region, and he had been second in charge of an office that helped these internally displaced people (IDPs), including providing medical assistance, clothing, food and shelter to them. He said he was also involved in campaigning activities for the ANP during elections. I asked [the applicant] why he thought he was (or would be) specifically targeted by the TTP, out of all of the people who are affiliated with the ANP. [The applicant] said he would not be the only one, that many people, including other friends and colleagues, were targeted, but that his charitable work with IDPs had made him particularly visible to the TTP.
I asked [the applicant] why, if his life was at risk as he claimed, he would voluntarily choose to return to Pakistan after his trip to Australia in 2016. [The applicant] said that in 2016, he had travelled to Australia to attend [an event]. He said that prior to 2016, he had the energy and patience to move around Pakistan and re-establish his life to try and avoid the threats he faced from the TTP. He said that in 2016, all of the threats became too much for him and he decided to leave and seek asylum in Australia and never return to Pakistan. When I asked [the applicant] what harm he feared if he were to return to Pakistan in the foreseeable future, he stated that he feared he would be killed by the TTP for the reasons he had discussed. I asked [the applicant] why, after so many years had passed since he had lived in Pakistan, he thought he would still be on the TTP’s radar and a target. [The applicant] stated words to the effect that once you were on their hitlist, you would always be targeted.
In summary, at the end of the hearing, [the applicant] stated that his only reason to come to Australia was to seek asylum to escape the threats he faced from the TTP. He said his mum was very ill and he had been unable to travel back to Pakistan to see her. He said that [some] of his daughters had married in the time he had been away, but he had been unable to attend their weddings. He said that he was not an economic migrant as his earning capacity had significantly suffered by coming to Australia, and that he earned much more while living in Pakistan.
[The applicant]’s representative told the Tribunal that the political and security situation in the Khyber Pakhtunkhwa region had recently significantly deteriorated. He reiterated the chance of serious harm [the applicant] faced if he were to return to Pakistan.
Country information
Background on the Taliban/TTP in Khyber Pakhtunkhwa province
Country information indicates that the Taliban in the Khyber Pakhtunkhwa province emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989.[1] Maulana Fazlullah assumed control of the TNSM in 2001[2] and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands.[3] When Tehreek-e-Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007, Fazlullah was named emir (leader) of the Swat Taliban. Although the TTP and TNSM were not operationally linked, they were allied, and TNSM militants in Swat were also referred to as the Swat Taliban. Maulana Fazlullah subsequently became leader of the TTP in 2013 until he was killed in a US drone strike in eastern Afghanistan in June 2018.[4]
[1] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289–313. See especially pages 291–294
[2] Ibid
[3] Ibid; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November
[4] ‘Pakistan Taliban leader Mullah Fazlullah killed in U.S. airstrike in Afghanistan’, The Washington Post, 15 June 2018, <>
TNSM attacked targets in the Khyber Pakhtunkhwa province which it deemed to be un‑Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, and artists[5] and used beheadings to advertise its strength.[6] The Khyber Pakhtunkhwa provincial government entered into a number of ceasefire agreements with the TSNM from 1994,[7] 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[8] and displacement of the local population.[9] 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.[10] 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 in the month after the offensive commenced.[11]
[5] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28
[6] Mustafa D and Brown K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; ‘Taliban behead two government officials in Swat’ 2009, Dawn, 3 May
[7] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York
[8] Ibid
[9] Ibid, pp.289–313, especially page 302 for reference to a, so-called, ‘Taliban Police Station’
[10] Siddique, Q. 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November, pp. 39–43 < Kronstadt, K.A. 2010, ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June, p.19
[11] Macey, J. 2009, ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June >
Independent information before the Tribunal indicates that, following the defeat of Taliban militants in Swat by the Pakistan armed forces in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military in Swat continued.[12] A May 2014 report by the Voice of America on Pakistan military operations targeting Taliban strongholds in the neighbouring Buner district noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014 were a ‘clear indication of militant presence in the region’.[13] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[14] who stated that the Taliban in the Khyber Pakhtunkhwa province were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region. Cloughley characterised the Taliban in Swat as being ‘down but … not out’.[15] The Taliban’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House (in 2013) that the Taliban have become active in Khyber Pakhtunkhwa province again.[16]
[12] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at Jan, S, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May 2014, < >
[14] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Cloughley, B, ‘It’s Time to Strike’, The News International, 19 May 2014, < ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’, Pakistan Today, 17 September 2013, <>
The Pakistan Institute for Conflict and Security Studies Annual Security Assessment Report for 2015 comments that the security situation in Khyber Pakhtunkhwa improved substantially during 2015 with an almost 70 per cent reduction in militant attacks compared with 2014, returning to the status of 2007/08 when this wave of militancy picked up momentum. The report comments that the substantial improvement is directly linked to military operations in FATA as well as measures adopted under the National Action Plan (to counter terrorism) (NAP). The report notes, however, that incidents of target killings continued to occur in Khyber Pakhtunkhwa province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015.[17]
[17] Annual Security Assessment Report 2015, Pakistan Institute for Conflict and Security Studies pages 26-29
A July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence had been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the Village Peace Committees (VPCs). The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that ‘the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces’.[18]
[18] ‘Restoring Swat’s lights’, The Friday Times, 29 July 2016, <>
A Center for Research and Security Studies report for the period April to June 2016 stated that police officials appear to be the main target of violence in Khyber Pakhtunkhwa, followed by political activists belonging to the Awami National Party and pro‑government VPC members. It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[19]
[19] Security Report: April - June 2016, Center for Research and Security Studies, 28 July 2016, CIS38A80121410, p.18
In its 2019 Country Information Report DFAT states that Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, including the TTP. The report comments that while militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. Khyber Pakhtunkhwa is mentioned as having recorded the highest number of terrorist attacks (125 attacks killing 196 people).[20]
[20] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.69
The 2019 DFAT Country Information Report on Pakistan indicates that:
·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), 3,684 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.[21]
·Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti-Shia sectarian groups). While ISIL was responsible for attacks with the largest death tolls, the TTP and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti‑Pakistan Sunni groups and Anti-Shia sectarian groups).[22]
·The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.
·Although counter-terrorism operations have succeeded in suppressing terrorism‑related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller‑scale attacks (albeit at a reduced tempo).
[21] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.68
[22] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.71
I note the following relevant information regarding the increased militant activity and rise in violent attacks, including in the Khyber Pakhtunkhwa province, drawn from the updated DFAT Country Information Report published on 26 January 2022:[23]
Following improvement over recent years, the security situation in Pakistan has deteriorated since mid‑2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, genderbased issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. See also Armed groups.
Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).
Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.
A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.
Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan. See also Race/Nationality and Religion.
[23] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.34–2.41

I note the following relevant information from a Brookings Institute report[24] regarding the resurgence of the TTP and related instances of politically motivated violence in Pakistan:
Alongside the Taliban’s takeover of neighboring Afghanistan, 2021 in Pakistan was marked by a clear resurgence of Tehrik-e-Taliban Pakistan (TTP), a terrorist group closely affiliated with the Afghan Taliban and responsible for killing tens of thousands of Pakistanis between 2007 and 2015. The Afghan Taliban’s rise to power — considered a “strategic win” for Pakistan and publicly welcomed by several politicians and officials — provided an unmistakable boost to the TTP. As the TTP has resurged, the Pakistani state has shifted its narratives and policies toward the group, while details on the TTP’s attacks have remained frustratingly opaque.
According to the Pakistan Institute for Peace Studies (PIPS), 207 terrorist attacks took place in Pakistan in 2021 — an increase of 42% relative to 2020. 335 lives were lost in these attacks. PIPS notes that the TTP alone was responsible for 87 attacks, an increase of 84% relative to 2020. The TTP itself claimed 282 attacks in 2021 and said that it had killed more than 500 law enforcement personnel; it claimed an additional 42 attacks in January 2022.
Both sets of numbers are low relative to the number of terrorist attacks during the height of the TTP insurgency (2,586 terrorist attacks and 3,021 fatalities in 2009, according to PIPS data). After the Pakistani military began its Zarb-e-Azb operation against the group in 2014, attacks declined sharply. Yet the increasing violence in 2021 compared to 2020, when the TTP began to regroup, is clear.
[24] Madiha Afzal, ‘Pakistan’s ambivalent approach toward a resurgent Tehrik-e-Taliban Pakistan’, Brookings Institute, 11 February 2022. Accessed at: >
I also note very recent developments in Pakistan, including the highly volatile and fluid political situation that resulted in the ousting of Pakistan’s Prime Minister on 10 April 2022.[25] I note also that human rights groups, including Human Rights Watch, have voiced concerns that the political instability currently being experienced in Pakistan could result in increased violence and unrest throughout the country, and noted several explicit threats of violence voiced by politicians.[26] I note also country information that highlights a surge in political violence including religiously motivated terrorism in recent weeks. For example, a suicide attack took place on 7 March 2022 at a cultural festival in Sibi, Balochistan, killing several members of a local police force, and a bomb was detonated at a Shia mosque in Peshawar on 4 March 2022. Country information suggests that this violence is evidence of a resurgence of militancy across the country that is seeking to take advantage of the political instability and leadership vacuum related to the recent political crisis.[27]
[25] BBC NEWS, ‘Imran Khan ousted as Pakistan’s PM after vote’, 11 April 2022. Available at: Patricia Gossman, ‘Pakistan’s No-Confidence Vote Should Respect Democratic Process’, Human rights Watch, 16 March 2022. Accessed at: The Associated Press, ‘Pakistan says 4 troops killed in attack claimed by Taliban’, 25 March 2022. Accessed at: and reasons
I accept that [the applicant] is a Sunni Muslim man of Pashtun ethnicity who was born and raised in [District 1] in the [Division] of Khyber Pakhtunkhwa province, Pakistan, and who has lived for periods in a number of other Pakistani towns and cities, including Karachi and Islamabad/Rawalpindi. Considering the totality of the evidence provided, including information and documents on the Department’s file, and new information provided to the Tribunal that includes threatening letters from known militant groups to [the applicant], I accept that [the applicant] was targeted by members of a militant group because of his and his family’s affiliation with the ANP political movement and because of his work constructing mobile phone towers in Khyber Pakhtunkhwa. I accept that [the applicant] has been directly and indirectly threatened by members of the TTP militant group operating in the Khyber Pakhtunkhwa province.
I held some concerns regarding some of the evidence presented by [the applicant] in relation to his case and claims, including relating to specific claimed incidents of past threats/harm, [the applicant]’s profile in his home area and why [the applicant] had chosen to return to Pakistan in 2016. I discussed these and other concerns with [the applicant] at both hearings and I’m satisfied with the responses provided. I accept that [the applicant] was threatened by the TTP as claimed and I also accept that many threats and atrocities occurred during the period when the TTP and affiliated groups effectively acted with impunity in the area.
Having considered the available country information and [the applicant]’s specific circumstances, particularly (as detailed above) the information relating to the activities of militant groups in his home area and the increasing prevalence of violence, I am satisfied that in these circumstances [the applicant] would face a real chance of serious harm from militants – groups and/or individuals that include the TTP – if he were to return to his home area for reasons relating to his (actual or imputed) political opinions, namely that of people who hold anti‑Taliban political beliefs and because of his (and his family’s) association with the ANP political movement in Pakistan, as required by s 5J(4)(b) of the Act, in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also consider that [the applicant]’s (actual or imputed) political opinions are the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his (actual or imputed) political opinions.
Pursuant to s 5J(6), I am satisfied that the reasons [the applicant] faces a well-founded fear of persecution relate to behaviours and/or conduct that was not engaged in by [the applicant] in Australia for the purpose of strengthening his claim to be a refugee.
Relocation
In SZATV v MIAC (2007) 233 CLR 18, the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country if, under all the circumstances, it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.
I am satisfied that [the applicant], as a citizen of Pakistan, has the right to relocate within Pakistan. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[28]
[28] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453]
In considering [the applicant]’s circumstances and the ‘reasonableness’ of him relocating within Pakistan, I have considered advice in the DFAT Country Information Report that while many Pashtuns have migrated to urban areas, including Islamabad and Lahore, and community leaders had told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country, DFAT is also aware that members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty in obtaining identification, and that since the commencement of Operation Zarb-e-Azb and the NAP, large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities – due largely to the fact that the TTP’s support base is primarily Pashtun.[29]
[29] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.3–3.6
For these reasons, I do not consider it would be reasonable to expect [the applicant] to relocate himself to another part of Pakistan where he has no family or social supports, to escape the real risk of significant harm he faces in Khyber Pakhtunkhwa province.
State protection
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit, in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non‑state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
In its Country Information Report (as outlined above) DFAT indicates that Pakistan continues to face security threats from militant groups and that Khyber Pakhtunkhwa is among the regions experiencing relatively higher rates of militant and sectarian violence, a situation that has significantly deteriorated in recent months. DFAT also comments that the underlying conditions for militancy – particularly weak judicial and law enforcement institutions and economic under-development – have not been addressed, and speculated that violence would likely increase again after a period of relative calm, and noted that there had been an increase in the frequency and severity of terrorist attacks across the country since late 2016, including in Peshawar in Khyber Pakhtunkhwa province. DFAT comments that despite the measures introduced under the NAP to curb violence across the country, successful prosecutions of those responsible for politically motivated or sectarian violence are rare, due in part to the ineffectiveness of police investigations and the effect of threats against judges, lawyers and witnesses. DFAT also assesses that state protection in Pakistan is limited by resource shortages, personal socio-economic status and, in some cases, political will.[30]
[30] DFAT Country Information Report, Pakistan, 25 January 2022
The information before me indicates that the situation in the Khyber Pakhtunkhwa province remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban and related militant/extremist groups. There are clear indications that militants are increasingly active in the area and have been emboldened by recent events such as the fall of Afghanistan to the Taliban and political turmoil in Islamabad. Country information also suggests that little is done in response to attacks on residents by militants. Given the longstanding nature and seriousness of the violence in the Khyber Pakhtunkhwa province, together with information indicating that the authorities in Pakistan are struggling to contain that violence, I find that [the applicant] could not obtain, from an authority of the country, effective state protection against the harm he faces.
Conclusion on issues related to harm in the future from the TTP and/or related groups and/or their allies and supporters
I find the country information indicates that the Taliban and other militant groups continue to launch attacks against military targets and those they consider to support the Pakistani authorities. They are attacking with increasing frequency and impunity.
Considering [the applicant]’s particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from the Taliban/TTP and/or their agents and/or affiliated groups, if he returned to his home in the Khyber Pakhtunkhwa province, Pakistan. I am satisfied that the real chance of serious harm [the applicant] will face if he returned to his home area will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces is his profile as the son of a prominent figure in his home area who may be imputed to hold anti‑Taliban political opinion due to his past history with the group and his (and his family’s) affiliation with the ANP political movement in Pakistan.
For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Scott Clarey
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.
…

[2022] AATA 2495

3 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction