1800966 (Refugee)

1800966 (Refugee) [2023] AATA 679 (30 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Catherine Farrell
CASE NUMBER: 1800966

COUNTRY OF REFERENCE: Pakistan
MEMBER:Justin Meyer
DATE:30 January 2023
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 30 January 2023 at 11:13am
CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Taliban – peace committee member – particular social group – music shop owner – armed assault – fear of killing – security situation in Pakistan – family dispute – mental health issues – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 29 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 24 March 2016. The delegate refused to grant the visa on the basis that the applicant would not be of adverse interest to the Taliban in Swat if he was to return there and thus did not have a ll-founded fear of persecution. Further, there were to the delegate’s mind no substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, that there was real risk that the applicant would suffer significant harm.
The applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Pakistan and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Identity
The applicant's identity is established as [an age]-year-old male, as evidenced by a Pakistani passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.
Mental health
Having noted the applicant’s claims of mental trauma over years, the Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information.
The applicant’s claims
Under cover of an email to the Tribunal dated 17 August 2022, the representative submitted a detailed submission, together with supporting evidence. A further submission was provided to the Tribunal on 30 September 2022 by the representative, enclosing a translation titled Supplementary Report (Part Two) Internal Statements under Article 161 Cr PC of this review, together with [Brother A’s] statement and its translation.
Background
According to the representative, the applicant ‘is [an age]-year-old Sunni Muslim man, born and raised in [Town 1], in the Swat Valley District of the Kyber Pakhtunkhwa (KPK) Province of Pakistan. He is of Pashtun ethnicity.’ Until 2008, the applicant was a shopkeeper, but was internally displaced during military operations by the Pakistan army against the Taliban. Between 2010 to 2016, the applicant worked as a seaman.
Around 2006, whilst running his CD and music shop, [named] in [a location], ‘a preacher by the name of Maulana Fazalullah (Fazallullah) gained prominence throughout Swat, promulgating his views using illegal FM radio.’ It is submitted by the representative that initially he preached on religious topics, but later his sermons came to represent violence or statehood.
By 2007 Swat had become unsafe. By 2008 Fazluhhah had become powerful, gaining control of the entire Swat Valley, with lots of supporters. He could not be challenged. Killings and beatings occurred in public. Shops were destroyed (by fire or bombs). In 2007 Fazlullah ordered all music shops in Swat to close or face ‘consequences’.
According to the representative, the applicant, ‘ignored the threat’ as ‘he politically opposed… Fazluhhah’s teachings, …[and] the shop provided …his only…income.’
Despite a ‘direct threat’ from the Swat Taliban in the form of a letter on his shop floor, received in January 2008, the applicant refused to close his shop as it was his only income, he opposed the teachings of the Taliban and ‘believed that he was providing a service that people enjoyed.’
Days later, armed men entered his shop, identifying themselves as the ‘people who had sent the threat letter’. The applicant again refused to comply with their demands to close his business, burn the CDs and “only sell Taliban literature”.
According to the representative, in February 2008 the Taliban set fire to the applicant’s shop using petrol and a gang of up to seven men tied him to a pole, severely whipping him around ten times because ‘of his perceived anti-Taliban activities’. The applicant was left with no option but to close his business.
The representative claims that his mother cared for the applicant’s wounds. Police assistance was not sought by the applicant as the police station has been ‘completely abandoned,…[and] the police….[were] “too afraid to wear their uniform.” ‘
In the submission to the Tribunal, the representative canvasses the applicant’s anti-Taliban activities between 2008 – 2009, which included arranging “an unofficial campaign denouncing the ideology and actions of the Taliban, with friends and cousins. The campaign included the applicant speaking out after Friday prayers against the Taliban. The applicant formed a [group], with [various friends and relatives, including] [Friend A] They conveyed their anti-Taliban campaign by visiting other villages, talking to people and handing out pamphlets.
In March 2009, according to the representative, a Taliban spokesman ([named]) broadcast the names of the applicant and [Friend A] over an unlicensed radio station, ordering ‘they be captured and surrendered to the Taliban for ‘spreading hate’.’ Fellow villagers, including his aunt, warned the applicant about this announcement although he did not hear it personally. Due to fear, he and [Friend A] escaped to Karachi seeking anonymity and immediately ceased their campaign.
Subsequently, on 5 May 2009, due to the military operation by the Pakistani government against the Taliban in Swat Valley, the residents, including the applicant’s family, were compelled to flee to Peshawar. The applicant reunited with his family in Peshawar where they stayed until October 2009.
In October 2009, it was declared by the Pakistani army that [Town 1] was free of the Taliban. The applicant and his family returned [Town 1]. But it was ‘highly militarised’. A ‘Village Defence Committee (VDC) had been created, and community members were authorised to carry weapons and detect possible Taliban sympathisers. The applicant volunteered with the VDC in [Town 1], until February 2010. During this time, the applicant provided the Pakistani Army with the details of two Taliban members ([named]).
In February 2011, on [a specified day], the applicant learned that both [these Taliban members] had been captured and killed by the Pakistani Army.
According to the representative, the applicant feared ‘backlash’, fled to Karachi and accepted a shipping contract in March 2011. He accepted subsequent shipping contracts until 2014 to avoid time in Swat. At times the applicant returned to [Town 1], partaking in VDC activities, which was dangerous as ‘militant attacks against VDC members and community leaders did not abate.”
[In] July 2014, the applicant’s friend, [Friend A], was assassinated by the Taliban. Due to their close association, the applicant feared that he would also be targeted if he stayed in Swat. He fled to Karachi, signing a shipping contract [in] August 2014 and staying at sea for eight months, until returning to Karachi [in] May 2015.
On [date] the applicant’s [child], [named] was born and so the applicant returned to [Town 1], spending a number of weeks with his family. However, he learned that [the family] of the slain Taliban fighter) were planning an attack on him. The applicant received a telephone threat to his life from people who identified themselves as the assailants in [Friend A’s] death. The applicant reported the threatening telephone call to the local army, fleeing with his family to Karachi.
In December 2015, the applicant secured another shipping contract. He then decided to travel with his wife and children by bus to [Town 1], He did not want his wife to travel alone due to risks faced by unaccompanied women.
The applicant then travelled to Islamabad. [Later in] December 2015 the applicant flew to [Country 1], and then to [Country 2]. On 2 January 2016, the applicant boarded a ship from [Country 2], ‘to Australia, where he deserted the ship in Sydney [in] February 2016.’
On 24 March 2016 the applicant lodged a Protection visa application, which was refused by the delegate of the Minister for Home Affairs on 29 December 2017.
The applicant’s claims to the Department of Home Affairs as per the decision record:
The delegate’s decision detailed the applicant’s claims for protection:
·     He is of Pashtun ethnicity and a Sunni Muslim from Swat Valley.
·     He left Pakistan due to threats against his life from the Taliban. The Talibanisation began in Swat in 2006 - 2007 under the leadership of Mullah Fazlullah who posed as a peaceful Islamic scholar but over time started to reveal his true mission. He and his followers began to beat and kill people who disobey them, and they forcibly closed the businesses they did not like.
·     In 2007 Fazlullah and his followers ordered all of the music shop owners of Swat Valley to wind up their businesses, or get ready for the consequences. Some shops closed voluntarily and some were forcibly closed. His shop was his only source of income so he continued operating. In January 2008 a warning letter from the Taliban was thrown into his shop, but he ignored it and continued operating. A few days later a number of Taliban entered his shop holding guns in their hands and he was directed to burn all his CDs and to sell only CDs or literature which supported the Taliban. He refused, saying he would not do so as their teachings were related to violence and terror.
·     He continued to operate against their orders and in February 2008 he told visiting Taliban that he had not changed his mind about selling their motivational materials. They set fire to the shop, dragged him outside, fastened him against an electricity pole and gave him 10 lashes for punishment.
·     He wanted to take revenge and started speaking out against the Taliban whenever he could. In July 2008 he spoke against the Taliban at the local mosque. The "pro-Taliban" Imam forced him to stop his speech.
·     Following this speech he was approached by villagers and after discussing issues they came to the conclusion that they needed to begin a movement against the Taliban. They formed a [group] and started to visit each village on Friday and covey their message against the Taliban. In March 2009 [name], a spokesman for the Taliban, announced their names over the unlicensed radio station and ordered that his armed group find them and bring them to be punished for teaching hate against the Taliban. They suspended their work and went to Karachi to hide from the Taliban.
·     The government commenced an army operation against the Taliban on 5 May 2009, and the residents of the District of Swat were evacuated. His family members went to Peshawar and he joined them there. In October 2009 the army declared Swat to be free of Taliban and most inhabitants returned home. After their return the army asked them for help with identifying any hidden Taliban and he provided such information and took them to their houses. With the collaboration of the army and local villagers a local committee was formed in order to keep peace in the area.
·     In February 2011, those Taliban who were arrested were killed in the custody of the army. After this their family members made plans to kill him but luckily he escaped. [In] July 2014, his friend, [Friend A], who was also a member of the peace committee, was killed by the Taliban.
·     Due to his fear he went to Karachi and managed to get a contract with his shipping company. He left Pakistan [in] August 2014, and did not return until May 2015, when he went to live in Swat.
·     Brothers of the Taliban members who had been killed in army custody told him that they could not make further attacks on him due to the presence of the army, but they had informed senior commanders of the Taliban about him who would soon make him "vanish... from the earth”. He reported these threats to the army and the brothers were arrested.
·     On 4 November 2015 he received a call from a person who claimed to be a Taliban commander and requested that he surrender himself as his killing had been planned. After this call he immediately moved to Karachi and remained inside the rented house until he joined the ship [in] January 2016.
·     He fears that he will be severely harmed or killed by the Taliban if he returns to Pakistan because he has challenged their power and helped the authorities in arresting members of their organisation.
·     The authorities in Pakistan cannot protect him against the Taliban and relocation is not a safe option as the Taliban have spread all around the country.
The applicant, accompanied by his migration agent and assisted by an Urdu language interpreter, attended an interview on Friday 27 October 2017 and provided the following information:
·     From July 2004 - February 2008 he was running [a CD and music shop] in Swat Valley. In 2007 Fazlullah and his followers ordered all of the music shop owners of Swat Valley to wind up their businesses or get ready for the consequences. Some shops closed and some stayed open. He did not take the announcement seriously and did not obey their order because he was against them. He wasn't really afraid at this time because he was still single and had no family to be concerned about.
·     In January 2008 a warning letter from the Taliban was thrown into his shop, but he ignored it and continued operating. A few days later a number of Taliban entered his shop holding guns in their hands and he was directed to burn all his CDs and to sell only CDs of literature which supported the Taliban. He refused.
·     In February 2008 they set fire to the shop, and 5 - 6 men dragged him outside, fastened him against an electric pole and gave him 10 lashes for punishment. They burned the contents of the shop
·     After his shop was shut down he did not work again until he obtained a position with [a named business], [in Country 2] in March 2010. During this time he was speaking out against the Taliban at the mosque. He and friends were running a secret campaign and in March 2009 [name], a spokesman of the Taliban, announced their names over the unlicensed radio station and ordered that his armed group find them and bring them to be punished for teaching hate against the Taliban. They suspended their work and went to Karachi to hide from the Taliban. Karachi is a big city: no-one can find him there. He went there for a short time and his family remained in Swat.
·     While he was unemployed the family lived on his father's savings.
·     On 5 May 2009 the government commenced an army operation against the Taliban and the residents of Swat were evacuated. His family members went to Peshawar and he joined them there.
·     In October 2009 the army declared Swat to be free of Taliban and most inhabitants returned home. After their return the army asked them for help with identifying any hidden Taliban and he provided information and took them to their houses. With the collaboration of the army and local villagers a local committee was formed in order to keep peace in the area.
·     The applicant submitted a First Incident Report (FIR).

The delegate’s reasons for the visa refusal are canvassed in detail by the representative’s submission and extensive material has been provided in relation to the applicant’s claims for refugee status.
It is the contention of the representative that ‘the harm feared by the …[applicant] constitutes ‘serious harm’ as defined under s 5J[4]…involving physical violence and harassment, disappearance and possibly death. These forms of harm constitute a threat to the …[applicant’s] li[f]e or liberty, significant physical harassment or ill treatment, constituting serious harm in the sense defined by the Act.’ [Emphasis added]
According to the representative, the applicant fears harm in Swat based on his membership of various social groups, namely the VDC, anti-Taliban activists, informants against the Taliban, returnees to Swat Valley from Western countries and being a party to tribal disputes in Swat Valley. These social groups, according to the representative, share characteristics and experience of persecution, uniting the members, such as ‘shared activity or employment and shared ideological opposition to and organising against the Taliban, ‘imputation of ‘western’, secular…anti-militant attitudes…and wealth.’ [Emphasis added]
The fears of the applicant, according to the representative, not only stem from his membership of various social groups, but from ‘political opinions’ that ‘he holds or might be imputed to him.’ In this regard, the representative relies on the applicant’s ‘secularism’, ‘opposition to militancy’, VDC activities and high probability that he would participate in ‘VDC and community agitation’ if returned to Swat Valley. [Emphasis added]
The current DFAT report is quoted by the representative, which maintains that ‘members of peace committees and their families are at moderate risk of violence by militant groups.’ [Emphasis added]. Reliance is placed on this DFAT report in support of the representative’s contention that the applicant faces a ‘real chance’ of danger as a peace committee member in the Swat Valley, which is both ‘obvious and immediate’, from militants. [Emphasis added]
Given the unpredictable, worsening security situation in Pakistan due to the Taliban, the representative submits that the applicant faces a ‘real chance’ of serious harm in Swat, both in the present moment and the ‘reasonably foreseeable future in Swat’. The January 2022 DFAT report and a December 2021 EASO (European Asylum and Support Office) report are quoted by the representative to support this contention, particularly in reference to rising violence directed at NGO works, human rights activists and participants in civil society who are at ‘a high risk of official discrimination and a moderate risk of violence, especially in conflict areas…’ The relevant part of the DFAT report from January 2022, referenced in the representative’s submission, is quoted below:
[3.112] Human rights activists face threats of violence and harassment from the military, government and militant groups. In September 2020, a group of independent UN human rights experts called on the Pakistani government to end the secret detention of Idris Khattak, an activist and former consultant for Human Rights Watch and Amnesty International who had investigated disappearances in Pakistan’s Federally Administered Tribal Areas. According to Amnesty International, activists, journalists and human rights defenders have been forcibly disappeared by authorities in Balochistan. Among them are Hasaan and Hizbullah Qambrani, who were picked up in February 2020 after participating in protests against enforced disappearances in Quetta. The pair were freed in May 2021 after the Baloch Missing Person’s Camp met with Prime Minister Imran Khan to plead for their release.
[3.113] DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, the former FATA and Balochistan). NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups. Harassment and monitoring by security forces can occur anywhere in the country
Reports detailing the fatalities in the region are also relied upon by the representative to support their claims in reference to the serious harm faced by the applicant, both now and in the reasonably foreseeable future. For example, the representative quotes tables from the quarter 1, 2022 Centre for Research Security Studies, supporting claims of growing violence in the areas bordering Pakistan, including the Khyber Pakhtunkhwa border. In Balochistan, Islamabad Capital Territory, FATA, Kyber Pakhtunkhwa, Punjab and Sindh here had been 153 attacks and 344 fatalities in the first quarter of 2022. This was 68% rise in violence. Kyber Pakhtunkhwa had the highest rise of 173%.
The representative submits that the country information supports a conclusion that the ‘security situation in Pakistan is complex, volatile and affected by domestic politics, ethnic and sectarian conflicts, and international disputes with India and Afghanistan.’ Should the applicant return to [Town 1], he faces ‘targeted violence’ as a perceived Taliban opponent with a profile in Swat, according to the representative.
Not only does the Taliban pose a risk to the applicant, but the representative maintains that he is at risk of harm from local [Town 1] residents due to his VDC activities and its close military association. The representative submits that the applicant is at risk of ‘harm from the family members of Taliban militants he reported directly to the army.’
Moreover, there is an increasing ‘disquiet’ throughout the Swat community about the army. Reference is made by the representative to ‘military atrocities including torture and extrajudicial killings of suspected militants’ and the harm the applicant faces by the ‘military’s excesses’, particularly given his Pashtun ethnicity and social movements advocating on behalf of Pashtun political prisoners.
Of particular relevance is the below quoted by the representative:
· In the matter of 1618713 (Refugee) [2018] AATA 913, the Tribunal, then constituted by Member Paul Windsor, surveyed the following evidence of military atrocities in Swat:
o   According to a 2009 report, an estimated 300 to 400 corpses of suspected Taliban militants, last seen alive when taken away by the Army, were found on street corners, bridges or outside homes throughout Swat and it was unclear whether the executions were perpetrated by the Army, local tribal militias or other Taliban insurgents. According to another 2009 report, “scores, perhaps hundreds” of bodies of tortured militants were found on the roads of Mingora (the main town of Swat located [distance] from [Town 1]) and in rural areas that were former militant strongholds in the aftermath of the Army offensive and local residents blamed the military.
o   The Human Rights Commission of Pakistan (HRCP) expressed concern about the extra-judicial killing of militants in Swat in its 2010 report on the state of human rights in Pakistan. The HRCP stated that:
o   In 2010, HRCP raised alarm at the large number of bodies found dumped in Swat. As many as 282 such bodies were found between July 2009 and May 2010. Locals suspected that most of these people were killed by the security forces. HRCP was not given any proof of the security forces involvement but called upon them to ensure independent investigation of all such incidents to establish the exact situation....
o   In a November 2009 cable, the US Ambassador to Pakistan noted that “a growing body of evidence is lending credence to allegations of human rights abuses by the Pakistan security force" during fighting in Swat and FATA and that:
o   Post assesses that the lack of viable prosecution and punishment options available to the Pakistan Army and Frontier Corps is a contributing factor in allowing extra-judicial killings and other human rights abuses of detained terrorist combatants to proceed. There may be as many as 5000 such terrorist detainees currently in the custody of the Pakistan Army and Frontier Corps from operations in Malakand [encompassing Swat], Bajaur, and Mohmand. As operations in these areas and other parts of the FATA proceed, this number will increase.
o   In October 2010, US government officials publicly expressed concern about human rights abuses committed by the Pakistan military in Swat. US officials were reported to have suspected that Army units had carried out extra-judicial killings of detainees and civilian supporters of the Taliban in revenge for attacks on military and police checkpoints.
o   In light of the information above, the Tribunal accepts that the Pakistan Army has engaged in extra judicial killings of captured militants and suspected civilian supporters in Swat.
·     Pashtunwali norms in Swat are an influence in the area, particularly the concept of ‘badal’ or revenge as an aspect of the culture. The representative submits that the applicant fears ‘badal’ if returned to Swat. That is, ‘[h]e fears that, as the eldest and closest male surviving relative of his brother, he would be killed as revenge for the murder of his paternal cousin.’ [Emphasis added].
·     In this regard, the following submission is made by the representative:
o   While reports of badal killing in Swat are difficult to find, not least due to the lack of effective law enforcement and the predominance of militant violence in the region, we invite the Tribunal to extrapolate the existence of such attacks from reports of ‘honour killings’ in the region. In its most recent report, DFAT notes that:
[3.96]… ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Human Rights Watch estimates there are about 1,000 honour killings in Pakistan each year. Honour killings can be carried out in response to behaviour including refusing an arranged marriage, forming an unapproved romantic attachment, or ‘immodest’ dress or behaviour, including social media posts. While young men can be targets of honour killing, most victims are female.
Once a threat of honour killing is established, the victim remains at risk even if he or she relocates. In some cases, victims have been killed years after the initial transgression. In tribal areas honour killings are sometimes ordered by traditional jirga councils.
It should be noted that a post-hearing submission dated 30 September 2022 by the representative agrees with the Tribunal comments made at the hearing, that the risk of harm to the applicant based on revenge from associates/family of his brother’s murder victim, would most easily be assessed under the complementary protection provisions set out at s 36(2)(aa) of the Act. The issue of complementary protection is discussed below.
In reference to the lack of state protection available to assist the applicant in relation to the harm he fears, the representative relies on various country and DFAT reports, to support their claims of police corruption, an ineffectual paramilitary, rising sectarian violence and Pakistani military, intelligence and Taliban links.
Further, the applicant would not be able to relocate within Pakistan according to the representative as ‘it is doubtful whether any region of the country remains entirely safe from sectarian violence’ given events in Afghanistan and the reuniting of Taliban groups in Pakistan. Given various authoritative reports quoted by the representative, ‘no part of Pakistan may be considered safe’ for the applicant and ‘the real chance of persecution should be taken to relate to all…of Pakistan.’ [Emphasis added]
In reference to the issue of complementary protection obligations under s 36(2)(aa) of the Act, reliance is placed on the poor mental health of the applicant. The representative highlights the applicant’s post-traumatic stress disorder, his ongoing psychological treatment since 2017, together with medical reports by [Psychologist A], a consulting psychologist and [Psychiatrist A], a consulting psychiatrist. It is claimed by the representative that the applicant would face adjustment difficulties and that his mental health would further decline if returned to Pakistan.
Relocation to Pakistan would place strain on the applicant’s already vulnerable mental state as he would have to ‘adjust to life, find accommodation and employment’ without family support, according to the representative.
The poor economic impact of the COVID-19 pandemic in Pakistan, including rising unemployment and his lack of skills, are factors impeding the ‘viability of internal relocation to any region within Pakistan’ by the applicant, according to the representative.
Documents submitted included:
·Further Statement of [the applicant], dated 29 July 2022.
·Letter from [Leader A], President of Village Defence Committee in [Town 1], Swat Valley.
·First Incident Report regarding the death of [Friend A], [in] July 2014.
·Application to police for exemption from post-mortem for [Friend A], made by [name].
·Declaration confirming ownership of music shop by [the applicant], made by [Mr A] and [Mr B].
·Photographs of scarring to [the applicant’s] back.
·Declaration of [Leader A], President of Peace Committee (or Jirga) dated 13 January 2021.
·Medical evidence relating to [Brother A], brother of [the applicant].
·Affidavit of [Mr B] regarding incapacity.
·Letter of [Rehabilitation Centre 1] re [the applicant] 5 August 2018.
·Letter of [Rehabilitation Centre 2] 22 December 2018.
·Medical Records of [doctor name] re [Brother A].
·Psychological report of [Psychologist A], dated 21 May 2018.
·Report of [Psychiatrist A] dated 17 August 2022.
The applicant’s evidence in the hearing
The applicant told the Tribunal the following:
·He arrived in Australia in 2016 after leaving a ship he was working on.
·His wife and children are in the same village as his in-laws in Swat, Pakistan.
·He is in regular communication with his family in Pakistan.
·He had his business in Pakistan between 2004 and 2008. He encountered his first problem with Taliban or violent people in 2007 in that store. He received warnings in 2008. I asked about the injuries to his back and when the photographs submitted of his back were taken. He said this was taken one or two years ago. He was struck with a stick made of rubber. He was fastened with rope to an electricity pole.
·I asked if he decided to comply with the demand after that attack. He said he did because they burned down his shop. There was no law enforcement and no one to complain to. The whole village and his family witnessed its burning down.
·Although he was hurt he continued to disseminate propaganda against this group. He had to take his revenge against the Taliban by speaking out against them.
·The perpetrators were usually outsiders and covered their faces.
·I asked if his speaking out against Taliban was in private or done in other ways. Collectively with some other friends they had a little movement against Taliban. They would visit small villages around his area and spread rumours and propaganda against Taliban.
·I asked an example of a rumour. The applicant said he was primarily trying to expose the brutality and expose who they were. They wrote notes to villagers exposing Taliban in that way.
·A number of people in the village were not aware that certain others were Taliban. Two people from his own village were Taliban. He gave the whereabouts of them to the military and those men are now dead. I asked for their names. He gave two names.
·In 2008 he attended mosque prayer and denounced what the Taliban had done to him. The mullah shut him down and warned him. The mullah had a younger brother taken by the military and therefore had sympathy to the Taliban. The applicant said he had no regrets about speaking out, despite the risk.
·The next threat was heard on FM radio controlled by Taliban in Swat when his name and his friend’s name were mentioned as people who should stop critcising. He was fearful and went to Karachi. This was in around 2008. Then there was a military operation to clear Swat of Taliban.
·He returned in 2009 to Swat from Peshawar. He showed two Taliban to the military who were then killed. One was killed on [a specified day].
·He was still scared in the village and eventually went back to Karachi.
·He was not in a village peace committee, but his friend [Friend A] was. The applicant used to help him by going to meetings with him. [Friend A] was shot in a mosque in June or July 2014. The applicant was not present. No one was arrested. There was no electricity in the mosque at the time and it was dark. Everyone was at the mosque that night as it was Ramadan.
·The applicant became very scared at this point and fled to Karachi and then boarded a ship. He has already been with a shipping company in 2010 and he rejoined them. He had originally trained with [a named business] in 2010. After seven or eight months of training he had taken his first assignment in 2010. He had commenced an assignment in [Country 2] and had been to [Country 1]. Between 2010 and 2015 he had made [several] trips to Australia. This was decent work to his mind and he needed to “do something”. His personal safety was not really his motivation.
·In May 2015 he went back to Swat. This was because [details deleted]. He had previously made visits home between 2010 and 2015. He would spend more time in Karachi. His visits would be for two to three weeks. He tended to remain inside the house because he was scared.
·I discussed how he kept his profile lower and whether this meant he had less risk. He stated that despite this, Taliban and militants could still target him.
·[On date] he had a baby girl and he planned to live there permanently. He took his family – wife and children - to Karachi to live.
·I asked the applicant about when he departed Pakistan for good and what he told his wife before he left. He told her that he would seek refuge in Australia, because he would be killed in Pakistan.
·The Tribunal enquired as to whether the applicant’s wife wanted to know about what she and the children would do once he had left Pakistan. The applicant said that she was concerned but told him to go ahead and depart.
·The Tribunal asked the applicant if it was his intention to bring his family to Australia. He said it was not.
·I asked the applicant about a call he received on 4 November 2015 while in Karachi. The call he said was from an unknown person and that he would spare no effort to track him. They will do the same as what they did to his friend.
·I pointed out that he had originally said that he was in Swat when he received the call. I asked if he had changed his answer. He apologised and said he on occasions could not focus. I asked if he was at his family’s home when he received the call.
·Receiving the call made him move to Karachi out of fear. He moved to his cousin’s house within two days of getting the call.
·He requested a ship assignment. His ship departed from [Country 2], and he got a flight from Islamabad to [Country 2]. The company played for the flight
·He had been in Sydney a year before from the ship he worked on. He jumped ship in Sydney in 2015. The supervisor had told him that no Pakistani including him could get off the ship in Sydney. He was upset about this. He went to Human Resources to complain. He literally jumped off the ship. He had the plan in his mind to jump ship once on the ship.
·I asked if he had told his wife that he was going to seek refuge in Australia. He said that he only told her this once he was on the ship, while on the phone.
·I asked how this timing could be correct considering that he had said to me that he told his wife before he departed that he would leave Pakistan and seek asylum. He said this was not correct because he did not know he was going to Australia when he talked to his wife in Pakistan. He made the decision to seek asylum in Australia while his ship was in [Country 2].
·He had been thinking about leaving Pakistan permanently before making the decision. He had wanted to leave his ship before, when he was in [another country] in 2015, but he had not had the opportunity.
·The Tribunal takes the submission from the applicant to be that he had a memory lapse earlier in the hearing about when he announced to his wife that he would seek asylum in Australia.
·In 2015 his brother, who was on drugs and is mentally retarded, fatally stabbed his cousin. His brother went to jail. This led to a family feud, but the cousin’s side refused to go to a mediation. The applicant said he thinks that they “will absolutely go after us.” He has been threatened.
·His wife has as a result moved to [another city] in the Khyber Pakhtunkhwa region, to live with his in-laws.
·I asked if there was any written proof of these claims, to which he said no. The Tribunal was subsequently provided with declarations post-hearing (later discussed in this decision).
·The applicant said that capital punishment was a possibility from the aggrieved side of the family.
·The applicant mentioned the recent floods in Pakistan but confirmed that he was not personally affected.
·The Tribunal discussed the most recent DFAT country report on Pakistan[1] with the applicant.
[1]   DFAT Country Information Report Pakistan, 25 January 2022
SECURITY SITUATION
2.34
Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
2.35
Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). 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.
2.36
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.
2.37
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).
[a graph is shown indicating ‘Comparison of terrorist attacks and fatalities in Pakistan (Jan 2013 to Aug 2021)’ where deaths are noted as falling from 2,451 to 293 over those years]
·The applicant said that in 2002 things were different and added that the night before the hearing there was a terrorist explosion.
·In this light the Tribunal acknowledged the following point in the DFAT report:
2.40
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 re[1]pledged 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.
·The Tribunal went on to note this section of the report:
Peace committees
3.83
In some conflict-affected areas, including Khyber Pakhtunkhwa and Balochistan, local communities or the Pakistani government have empowered local councils called ‘peace committees’ (aman jirga) to help oppose militant groups such as the TTP. According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees ‘are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out[1]of-court arbitration’. Villages may also form peace committees of their own accord. Despite their name, peace committees take many guises, ranging from ‘keeping an eye on’ terrorist activities to actual engagement against terrorist groups as armed tribal militias.
3.84
Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP). Peace committees have themselves sometimes been accused of violence or human rights abuses (see Judiciary, Cruel, Inhuman or Degrading Treatment). 3.85 DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.
·In regard to his Pashtun identity and the applicant’s claimed issues from this, the Tribunal queried why such a large ethnic group (the second largest) would be so at risk. The applicant said that he would be found if returned to Pakistan. He submitted that he might, perversely, have a pro-Taliban association because he is a Pashtun.
·He is on medication for mental health conditions – PTSD and anxiety, he said. He forgets things and cannot concentrate. Without the medication he would not be able to sleep.
Evaluation

From consistent written and oral evidence, the Tribunal concludes that the applicant’s biographical details and life narrative are as he has stated. He is [age] years old and is Pashtun, Sunni Muslim Pakistani man.
I have no reason to find that he has embellished or invented any of his account. The Tribunal respectfully differs from the conclusion of the delegate that the applicant was unafraid to live in Swat, that his anti-Taliban activities were very irregular, that he did not fear the Taliban, and that he was not specifically targeted by the Taliban. I also do not accept that there were earlier achievable opportunities to depart Pakistan and settle elsewhere because of ship assignment work. I do not accept that if the Taliban had truly wished to harm the applicant it would have done so. The Tribunal has had the advantage of examining the applicant in an extensive hearing and has seen additional evidence and declarations and other documents that the delegate did not have.
The applicant’s evidence that he is from the Swat Valley District of the Kyber Pakhtunkhwa (KPK) Province of Pakistan was plausible. I accept that until 2008 the applicant was a shopkeeper.
I accept that he had to depart his area during military operations by the Pakistan army against the Taliban.
The applicant’s shop and threats to him while there
The applicant has given information on various occasions about his running a shop.
I accept from consistent evidence that the applicant ran a CD and music shop in Swat Valley, including in 2006 (when a prominent cleric started broadcasting messages on FM radio). I note that there is corroboration confirming ownership of music shop in the form of third party declarations as earlier described in this decision.
From consistent evidence I find the applicant received a threatening letter at his shop received in January 2008 but refused to close his shop as it was his only income. The demand was to wind up businesses or face the consequences.
I accept that it is plausible that he refused to close his shop as it was his only income.
It is accepted that his shop was destroyed as a consequence and that he was beaten by the perpetrators. Considering the country information about lawlessness in Swat at this time I accept that he was unable to report to authorities effectively and did not have medical care for his injuries. The scar marks on his back are not inconsistent with his claims.
Speaking out at mosque gathering
It was apparent from the hearing that the applicant was, and is, strongly opposed the teachings of the Taliban, and in this context I find that he spoke out against Taliban on various occasions including at a mosque gathering in 2008.
I find that the applicant helped form an anti-Taliban village organisation. A pro-Taliban Imam forced him to stop his speech.
From consistent evidence, I find that punishment was ordered against him.
Assistance to a village peace/defence committee
The applicant has not claimed to have been in a village peace or defence committee, but I find that he has credibly described how he assisted his friend [Friend A] , who was a member.
I find the applicant used to help [Friend A] by going to meetings with him and that [Friend A] was shot in a mosque in June or July 2014. There is a First Incident Report submitted by his [relative] regarding the death of [Friend A], [in] July 2014 evidencing this.
I find that the applicant played a role assisting [Friend A] in an anti-Taliban campaign by visiting other villages, talking to people and handing out pamphlets.
There is a declaration from [Leader A] of 13 January 2021 confirming the applicant’s support of the community policing forum of [a named] police station in Swat district of which [this leader] was president. The declaration also confirms the closing of the CD store, and assault on the applicant.
Although there are on occasions doubts as the veracity of certain official documents in Pakistan, I have no reason to doubt this evidence on Village defence activities on the face of what is presented. It is corroborative of the applicant’s account. I find that the applicant assisted authorities to identify certain Taliban operations.
Noting the DFAT country information[2] on such committees I find that there is a real chance of harm for the applicant in this regard, as a person imputed or associated with their work:
Peace committees
3.83
In some conflict-affected areas, including Khyber Pakhtunkhwa and Balochistan, local communities or the Pakistani government have empowered local councils called ‘peace committees’ (aman jirga) to help oppose militant groups such as the TTP. According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees ‘are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out-of-court arbitration’. Villages may also form peace committees of their own accord. Despite their name, peace committees take many guises, ranging from ‘keeping an eye on’ terrorist activities to actual engagement against terrorist groups as armed tribal militias.
3.84
Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP). Peace committees have themselves sometimes been accused of violence or human rights abuses (see Judiciary, Cruel, Inhuman or Degrading Treatment).
3.85
DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.
The applicant’s claim that he exposed two Taliban members to the military who were then killed
[2] DFAT Country Information Report Pakistan, 25 January 2022
The applicant claimed in oral evidence that he exposed two Taliban members to the military who were then killed. One, he said, was killed on [a specified day].
The individuals were named by the applicant.
The Tribunal is unable to positively conclude that this took place, noting that there is very limited oral evidence to this effect only. While the applicant may believe that there is a link between his naming the individuals and their death, the little evidence which exists does not satisfy me that his actions led to the purported death of these two persons.
The alleged delay in seeking protection
The Tribunal accepts as plausible that as a Pakistani ship worker, the applicant was very restricted in which ports he could obtain shore leave. I do not accept that he had passed up feasible options to seek asylum in other countries. I find that his decision to depart Pakistan permanently took time and I accept his account that his resolve to seek protection in Australia was something that took place on his voyage to Sydney. While there were some minor discrepancies in his narrative on this point in the hearing the Tribunal gives the benefit of the doubt, given the passage of time, and certain mental or psychological conditions that he has.
The passage of time
A number of the claimed incidents occurred in a previous decade. Arguably, this diminishes the possible risk involved, as memories can fade, individuals move on and alliances can alter.
Nonetheless the seriousness of the acts against the applicant and apparent ongoing interest in him as described works against the contention. Combined with this is an apparent emboldening of local Taliban with the compete takeover of neighbouring Afghanistan by the Taliban in 2021
The Tribunal notes the following DFAT information[3] about the prominent group Tehreek-e Taliban Pakistan (TTP) along with terrorist action and violence:
[2.40]
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.
[3] DFAT Country Information Report Pakistan, 25 January 2022
I have little reason to believe that the position will change greatly in the foreseeable future for the applicant.
The level of state protection is low for the applicant, per DFAT’s report [4]:
[5.1]
Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).
5.2
Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
Cumulative consideration
[4] DFAT Country Information Report Pakistan, 25 January 2022
Bearings in mind the above findings, the Tribunal considers that on their own each aspect might not translate to a real chance of being persecuted in the reasonably foreseeable future, but when considered cumulatively the applicant is in such a position.
I am cognisant of DFAT’s descriptions that members of peace committees and their families are at moderate risk of violence by militant groups, and that human rights activists and participants in civil society are at a high risk of official discrimination and a moderate risk of violence. From this the Tribunal is unable to describe the risk he faces to the category of far-fetched or fanciful (and thus outside the scope of the legislative definition of refugee).
I find that there would be tenuous state protection for him. As terrorist and criminal organisations are broadly across the country, I cannot foresee that relocation for him is a feasible option. Relocation would be even less a prospect due to his impacted health especially given the mental conditions he suffers from.
There are diagnoses of post-traumatic stress disorder, descriptions of ongoing psychological treatment since 2017, together with medical reports by [Psychologist A] (a clinical psychologist) and [Psychiatrist A] (a consultant psychiatrist). These experts have had multiple consultations with the applicant. The applicant would face adjustment difficulties and his mental health might further decline if returned to Pakistan, and this in turn might well hinder his ability to repel danger and threats.
Therefore, I find that the applicant has a well-founded fear or persecution on the grounds that he is an anti-Taliban and / or anti extremist group organiser and/or participant, and thus on the grounds of political opinion. He holds political opinions, or those opinions might be imputed to him. He has secularist ideas and has an opposition to militancy through his Village Defence Committee activities. Cumulatively the matters raised, including his mental health, lead the Tribunal to this conclusion.
The risk he faces is a moderate risk and is a real risk now and in the foreseeable future if he is returned to Pakistan. There is no evidence he can live elsewhere in a safe third country.
The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his political opinion. On the basis of the evidence before it, including the country information cited above, the Tribunal is not satisfied that state protection is available to the applicant in Pakistan. The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Pakistan, especially bearing in mind the prevalence of Taliban throughout the country. As early mentioned DFAT notes that TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred across various parts of the country such as Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. The Tribunal struggles to contemplate how country information might identify noticeably safer areas in the country for the applicant. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Pakistan for the reasons stated.
He is not required to engage in behaviour that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic of the person. His political opinion, views and conscience and identity are deeply ingrained in his life and persona.
Assessment of claim that applicant, who was taking drugs and is mentally handicapped, fatally stabbed his cousin leading to a family feud
The Tribunal finds that this is an alleged private dispute between family members and is not a claim which attracts the definition of a well-founded fear of persecution under the provisions of 5J. These is no reason to believe that the applicant might be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion because of this claim. As the Tribunal has already found that the applicant has a well-founded fear of persecution for other reasons, it is unnecessary to assess this matter under Complementary Protection provisions as an alternative.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Justin Meyer
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.
…

[2023] AATA 679

30 January 2023

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