1800968 (Refugee)

1800968 (Refugee) [2023] AATA 675 (30 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Leske (MARN: 0960234)
CASE NUMBER:  1800968
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:30 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 January 2023 at 12:07pm
CATCHWORDS
MIGRATION – protection visa – Pakistan – fear of harm from Taliban – member of village defence committee – father killed and applicant beaten and threatened – mental health – extensive overseas travel and returns, with family remaining unharmed – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 January 2018 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, which I accept, applied for the visa on 26 March 2016. The delegate placed weight against the applicant’s claims of fearing harm on his repeated return visits to Swat, leaving his family in Swat and that despite travelling extensively as a seaman he had not sought asylum before even at times of insecurity and poor economic conditions. Overall, when considering the applicant’s profile, the delegate found that the applicant was not of adverse interest to the Taliban.
The applicant appeared before the Tribunal on 11 November 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.
Mental Health
A letter from [Organisation] was received prior to the hearing. It notes that the applicant was initially treated by staff at [Organisation] between October 2018 and January 2021 but through this period his engagement was ‘intermittent’. The submission was current in that the applicant had a further four sessions with psychologists after a home invasion he experienced in June 2022. The report notes that these sessions were focused on alleviating recurring symptoms of anxiety, high levels of traumatic stress, as well as depression. The report notes that the most recent sessions were focused on the home invasion which ‘triggered his pre-arrival trauma history.’
In post-hearing submissions the applicant provided written claims of being viciously assaulted in his home in June 2022. He provided both a report that appears to be for the purposes of law enforcement and another for the Tribunal. In the latter, he described himself as being in a ‘bad mental state’ after the attack. Although the home invasion was five months prior to the hearing he wrote that he was still having very disrupted sleep. No claims were made relating to this incident, but it is relevant in that it provides further insight into the applicant’s mental health.
While the statement detailing the home invasion and the persistent symptoms that arose from that were received after the hearing, the [Organisation] report was available before. At the outset of the hearing to facilitate the applicant’s ability to meaningfully contribute I emphasized that he could take breaks as he required in addition to the regular breaks that I would be offering. In addition, I reviewed the Tribunal’s vulnerability guidelines to ensure that the approach undertaken aligns with best practice.
In considering the applicant’s mental health status I have endeavoured throughout this decision to reflect on how it may impact his evidence including particularly his ability to recall details.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and Findings of Fact
The applicant was born in [Village 1], a village in Swat district of Pakistan. He is the fifth child of seven children, with four sisters and two brothers. One of his brothers lives in Swat and the other is a labourer in [. Country 1] He is married with two children. His wife and children live in [Village 2], another village in Swat not far from [Village 1]. They are living with the wife’s parents. The applicant’s father died in 2008 and his mother in 2020. The family home in which he was born in [Village 1] was abandoned after the death of his mother.
The applicant claims to have begun work in the merchant navy as a seaman in November 2008. He said that he chose this career to support his family financially as well as because it was unsafe in Swat. He began the process to move into the merchant navy in 2005 by undertaking the necessary training courses but didn’t seek a deployment until 2008. He said that the training offered an option for him which he only chose to pursue in 2008 in part due to a deteriorated security situation.
The applicant described the first arrival of the Taliban as being in the years 2005 and 2006. His views were that they were ‘not right’, and that they were manipulating religion for their own benefits. He didn’t personally speak up, and his father reminded him and his siblings to stay away from them and to oppose their ideology. One of the objections the applicant noted was that they would force people to pray and that was against Islam in his view.
The first confrontation the applicant had with the Taliban was in early 2008. It occurred while he was watching a movie in his guest room. He said that 10-15 Taliban came in, smashed the television and beat him. He said that the motivation for this was that the Taliban had announced over the radio that people had to stop watching television and he suspects that someone reported them.
The applicant claims that he was the only one punished. He said that it was in part because the television viewing was at his place, and he was responsible for the get together. But also because, he claims, that he begged the Taliban to not punish his guests and that as a part of the Pashtun code of honour, Pakhtunwali, he was the one to be punished. As a result, he claims that he was taken away for three nights.
He recalled being taken to a place where they stripped him and beat him at different times of the day and night. He said that he heard screams of other people being tortured in neighbouring rooms. He said that they were not asking him to confess, he just had to be punished. They said that he would be let go on the condition of helping to construct a madrassa.
The applicant said that although he committed to help build the madrassa, he never went to help. He said that he had made the commitment verbally and there was no written agreement. He said that he avoided going and that he would give excuses when confronted by officials who had at times knocked on the door of his house reminding him that his absence was known. Despite this, he was never punished for his absence. I asked if it was ever raised by anyone subsequently, he said that it wasn’t.
In another confrontation, the applicant described the situation that led to his father being killed [in] August 2008. His family were asked to provide land for a road to the madrassa, but his father refused the request. The length of the road across their land was 20m but he claimed that it was their best land as it also had irrigation. He said that his father stood against it because there was no compensation. He said that his father wouldn’t stop asking for compensation and eventually someone from the Taliban came up to him and killed his father. The applicant said that the loss of the land had snatched away their livelihood.
Eight days after the death of his father the applicant claims that he went to Karachi without a seaman’s contract and sought a deployment. In November 2008 the applicant was deployed abroad returning in October 2009.
The applicant returned to Swat and remained for two to three months which was shortly after the military operation that had cleared Swat of the Taliban.
The applicant deployed to sea again from December 2009 to November 2010. He then spent a year and one month in Swat (November 2010 to December 2011).
The applicant said that no incidents occurred during this period. It was also at this time that the Village Defence Committees were established according to the applicant. In his statement of March 2022, he described his neighbour, [Mr A], being the Mohallah (suburb/locality) coordinator. It was [Mr A] who approached the applicant along with two others and told him that he ‘had to start to perform night patrols and begin to perform other duties for the VDC—such as supervising prayers during special occasions to make sure there were not attacks.’ The applicant wrote that he was reluctant and that he had mixed feelings towards the army, but he had no choice but to agree as he couldn’t dishonour his family.
At the hearing the applicant said that as he spoke Urdu, he was able to communicate with the soldiers who were from other parts of Pakistan. This made him valuable and allowed him to establish a rapport with them.
During his stay in Swat the applicant said that he would perform night patrols three nights every two weeks ‘on the directions of the VDC’. At the hearing he explained that he would do these night patrols sometimes with the VDC and other times with the army.
I note that in his written statements the wording he used when referring to his role with the VDC would suggest that he was not a member, for example, writing that he would undertake night patrols ‘on the directions of the VDC’ or in referring to the VDC he writes, ‘they [the VDC] had asked senior members of our village to come together and coordinate every neighbourhood to perform night patrols’. At the hearing I asked the applicant if he was a member to which he responded that he was. I asked if he had a membership card. He said that he had left it on the ship from which he had absconded.
The applicant submitted a letter from a [Mr B], who is claimed to be the Vice President of the VDC in [Village 3]. In the letter the applicant is described as being a member of the VDC. It also notes that the applicant’s life is in danger as the Taliban want to target him.
I am concerned about the veracity of his claim to have been a member of the VDC. The earlier written evidence of the applicant appears to suggest that he was mobilised by the VDC to undertake night patrols. He does not mention attending meetings, resolving criminal and civil issues or coordinating with the military, as are the responsibilities of the VDC.[1] But at the hearing he claimed to have been a member and had a membership card that he had left onboard. Although he was unable to provide a membership card, he did provide a non-descript security pass. While I am vexed by some of the evidence, I nevertheless, give the applicant the benefit of the doubt and accept that he was a member of the VDC.
[1] 'The role of local institutions in conflict-affected Khber Paktunkhwa, Pakistan', Secure Livelihoods Research Consortium, 31 August 2017, p.12
The applicant deployed to sea again from December 2011 returning in late November 2012. He claims that upon his return to his village in Swat in December 2012 he saw two Taliban leaders one evening. He wrote that he wasn’t sure whether he was on patrol or not at the time, though as there were no streetlights he was concealed and could hide behind a corner. He wrote that he recognised them as [Mr C] and [Mr D], two people he had known from senior class at school. The applicant claims that he saw the houses that they entered and then he left the scene and called the Army hotline. He claims to have been told to remain where he was. The officers arrived and asked him to point out the homes into which the Taliban entered as they were not familiar with the area. According to the applicant, commandos were sent to surround the houses and the two Taliban men were captured. He said that at the time he was unsure if anyone had seen him pointing out the houses to the army.
After the two were taken away he said that people thought that the army killed them. The applicant said that the family members of the two Taliban threatened him. I asked how they found out that he was responsible, he said that other people in the neighbourhood saw him showing the army the whereabouts of the Taliban. He said that the family came and badly bashed him, without warning and without any threats and despite the presence of the military.
The applicant said that a butt of a gun was used to [injure him]. He said that he was able to flee from the house because he knew the short cuts around his neighbourhood. He claims that he got first aid in a neighbouring village and then went straight to Karachi. He recalled that this incident occurred in late January 2013 and that he was able to deploy to sea shortly thereafter in February 2013.
The applicant remained at sea through to November 2013. While he was at sea there were no repercussions to any of his family members. He said that the army had searched to find the people responsible for his beating but didn’t find them.
Upon return the applicant claims to have stayed 4-5 months in Swat and a few months in Karachi before departing again in June 2014. During his stay in Swat the applicant stated that nothing happened. He believes that it was because the Taliban were not very strong at the time and the government’s militia were.
Following the applicant’s deployment in June 2014 he remained at sea until March 2015. Upon return to Pakistan and during his initial stay in Karachi he claims that he saw members of the Taliban and that he reported them to the elite Rangers of the Pakistan government. In the applicant’s 2022 statement it is three Taliban, whom he names, while in the 2016 statement he states at paragraph 13, ‘In end of March 2015 when I was in Karachi, I saw two other members of Taliban who were known to me.’ But then in the same paragraph he mentions the same three names in the 2022 statement. At the hearing he stated that it was three Taliban that he saw and identified. As the applicant has previously named them and he has at the hearing again referred to seeing three I accept that it was three and that the mention of two in the 2016 statutory declaration was an unwitting mistake and do not make any credibility finding arising from this.
The applicant described the encounter as beginning when he was on a bus and they were in a grocery market. He believes that they didn’t see him. He said that he got off the bus and followed them while speaking to the Rangers on the hotline. He said that the Rangers first came to him, and he told them where they were, and then they went to take them. He then watched as the Rangers captured them. He said that he is not sure if anyone knows that he reported them, but he has that fear.
After this episode and no harm being claimed to have occurred, the applicant then went to Swat as he claims to have heard that it was safer than before. He remained in Swat through to the end of 2015. He said that nothing happened in Swat until November 2015 when he received a call from an Afghan number with the caller identifying himself as a member of the Taliban and accused him of opposing the organisation. The caller knew that other Taliban have been arrested because of his actions and accused him of being an infidel and said that he would be killed. At the hearing he recalled the threat as, ‘We haven’t given up on you, we have been chasing you, you reported two Taliban to the military, we will come after you soon.’
The applicant referred to this call in both of his statutory declarations. In the statement of March 2022 he wrote, ‘I was in Swat when the Taliban militant called me and threatened that they would kill me because of what I did in Karachi…“We know that you are in Swat, we know you were targeting our people in Swat and Karachi as well.”’ This is in contradiction to what the applicant said at the hearing when he noted that he wasn’t sure if anyone had seen him in Karachi when he reported the Taliban to the Rangers. The applicant’s earlier statement from 2016 in referring to the phone call from Afghanistan does not mention the Karachi incident but nor does it conclusively omit it, rather it provides a general statement that the caller, ‘added that members of their organisation have been arrested through my help.’

In considering the applicant’s evidence about whether the threat included a reference to the Karachi incident I note that at the hearing the applicant recalled that the caller referenced his reporting to the army ‘two Taliban’ whereas I have accepted that he had reported three Taliban in Karachi. The two Taliban would match his involvement in the reporting of [Mr C] and [Mr D] in December 2012. This view is further supported by the applicant’s description of the Karachi incident which, as narrated by the applicant, is highly unlikely to have resulted in someone identifying him as the person who reported to the Rangers. While I am considerably concerned over the applicant’s confusing recollection of the facts, I give him the benefit of the doubt and find that the threat did include a reference to his reporting of the three in Karachi.
The applicant claims that as a result of the threat he arranged to get another deployment and boarded the new ship [in] December 2015. In the applicant’s statutory declaration of 2016, he notes that he had to pay a bond to obtain this final deployment. At the hearing I asked about why he had to pay it to which he responded that it was a new requirement for people from outside of Karachi which was introduced in 2015. I am inclined to place limited weight on the bond being evidence of his desperation to seek safety as it was a normal process for all sailors who sought deployment. As the applicant had been in Swat for nearly 10 months it was a necessary condition of employment. Having said that, at some stage the applicant had to grapple with the choice of foregoing what is a substantial amount of money by absconding from the ship, though, in of itself this could be indicative of many other motivators or a combination of motivators including for example economic migration rather than simply a fear of harm, hence I place limited weight on it as evidence of a fear of harm.
The applicant claims that were he to return to Swat he would re-join the VDC.
He also noted that [Mr A], his neighbour who had enticed him to join the VDC died in early 2016. At the time, the applicant claims that [Mr A] was one rung down from the chairman of the VDC.
The applicant also noted that [Mr E], who was killed in 2022, was from his village and was the head of the VDC. He claimed to have known [Mr E] as they were both members of the VDC at the same time. He also claimed that one of his [relatives] was killed in the same incident.
The applicant claimed at the hearing that his younger brother received a threatening call from the Taliban while the applicant was in Australia. He believes that it was related to his identification of the two Taliban. The caller asked for money and that one person from each household had to join the Taliban or the family would have to pay wages of another person. I note that the applicant did not mention this in any of the detailed written submissions. The context of the call appears to be generic. The applicant’s brother has not been harmed. For these reasons I find that the call is not related to the applicant and that it is a general campaign by the Taliban to extort residents and find new recruits.[2]
[2] >
I accept the applicant’s description of events and incidents in the above passages except where detailed otherwise for the reasons given.
Country information
Prior to considering the specific claims of harm I will engage with the security situation in Swat. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence can and did occur with virtual impunity. With greater security these events are constrained if not eliminated. To undertake this assessment of the security environment, I shared with the applicant quantitative information including the number of terrorist incidents and civilian deaths as well as qualitative assessments. I also considered country information presented by the applicant.
At the hearing I shared a graph that compiled conflict related fatalities in all of Pakistan from three independently run databases showing a peak of deaths reaching over 12,000 in 2009 and then seeing a steady decline to 2011 where it plateaued at around 6,000 deaths and then in 2015 a further steady decline down to a few hundred.[3] I noted this substantial decrease in deaths relative to the situation when he was last in Pakistan and asked for his comments. He said that [Mr E] was changing his whereabouts but when targeted you are a target and they come after you. Regardless how far you go, it doesn’t change anything. But I note that in the country information that the applicant provided states that the Taliban who claimed responsibility for the killing made a statement in which they claim to have had been after [Mr E] for thirteen years, a period spanning several years that were less secure than now. This reliance upon the circumstances of [Mr E] to support the claim of an inevitability of assassination once someone is a person of interest to the Taliban carries limited weight.
[3] Political Violence in South Asia: The Triumph of the State? - Carnegie Endowment for International Peace, September 2020 >
We discussed terrorism related fatalities in Swat. The data shows that whereas the peak reached 402 civilian deaths in a year, the last several years have seen no deaths or single digit deaths.[4] The applicant said that lots of occurrences are not announced. He added that the change of regime in Afghanistan is a unique event that will have an impact. He noted the abduction of Telecom workers recently (this occurred in 2021 in another district along the border with Afghanistan)[5]. I put to him that members of the VDC are threatened as are politicians and many others who are seen as collaborators with the government and yet only a few are killed as is shown in the country information provided by the applicant. He said that the Taliban are waiting for the right time and opportunity. He referenced the situation of the former President, Imran Khan, who was shot and injured even though he had bodyguards. I asked the applicant whether he saw himself as a high enough value target for the Taliban to risk their resources to pursue him. He responded that it is different now due to the takeover of Afghanistan.
[4] South Asia Terrorism Portal – Swat
[5] >
I put to the applicant that his representative had submitted information that there have been protests by residents of Swat against the Taliban. I noted that this appears to be a different reaction than in 2008 when the Taliban were welcomed by many residents. For example, among the information submitted by the applicant’s representative is this:
“It is true that people are extremely scared. But they are making it clear that Talibs are not welcome in the area anymore,” Usman says. “In clear contrast to the last time when the Taliban enjoyed people’s backing, now there is disapproval of their presence and an evident ideological divide.”[6]
[6]
I also noted that a diverse range of political parties spoke up against the Taliban reflecting a much more unified political front than the past as noted in the representative’s package of submissions. I asked whether this would make it more difficult for the Taliban. He said that in 2008 people appreciated the Taliban coming because they gave them fake promises of taking them to Paradise and used religion as a tool. He said that the people believed them, but they failed in their commitments, everything they did was against what they said. But he doesn’t believe that the people’s protests will change anything as all they can do is go to the streets. He said that the military is speaking of a truce with the Taliban and if that takes place then it is a return of the Taliban to Swat.
Information was provided of the deaths of other individuals associated with VDCs including a former VDC member [Mr F]. But I also noted that country information states that the blast that killed [Mr E] was the first in many years: ‘[Quotation redacted].’[7] The applicant said that this could be the case for a major incident but there are unreported incidents that are always happening.
[7] [Reference redacted].
I shared with the applicant country information from the package of submissions provided by the representative that noted a resurgence of activity in the ‘ex-FATA’ areas and noted that Swat was not a part of FATA. For example:
In his recent interview to CNN, Nur Wali [head of the TTP] has termed Taliban’s victory against the US as the win of all the Muslims and vowed to continue terrorist attacks on the Pakistani security forces in the ex-FATA region. In sum, ex-FATA region’s deteriorated during 2020 and will decline further in the coming months due to the civil war in Afghanistan and its blowback.
The applicant responded that throughout the Khyber-Pakhtunkhwa province there is a strong presence of Taliban.
I put to the applicant that country information suggests that the military is undertaking operations against terrorist groups, but that Swat is not a district where such operations are deemed to be warranted.[8] The applicant responded that it could be strategic, and that overall, he doesn’t agree with the claim that operations are happening elsewhere. He said that there were blasts in Kanju and there was a shooting against a school bus.
[8] Pakistan Security Report 2021, Pakistan Institute of Peace Studies, at [4.1.1]
I noted to the applicant that country information suggests that the Afghan Taliban have directed the TTP militants who are ensconced along the border with Pakistan to relocate and stay away from bordering areas.[9] He said that there are many different factions some take direct orders from Kabul and others do not.
[9] Pakistan Institute of Peace Studies Quarterly Monitor -4: pril to June 2022
I note that in the submissions by the applicant’s representative a considerable number of articles were included referring to deaths in the province of Khyber Pakhtunkhwa and references to the situation in the former FATA districts within Khyber Pakhtunkhwa. While providing a perspective on the security situation across the province provides some insight, I place greater weight on district level information and statistics which are more representative of the circumstances to which the applicant would be returning to. This is particularly the case as Khyber Pakhtunkhwa is a large province and Swat is in the northeast not bordering Afghanistan whereas the majority of conflict, as per country information provided by the applicant,[10] is in the Waziristan districts which are in the southwest along the border with Afghanistan.
[10] Submission dated 21 October 2022, page 16, ‘South and North Waziristan districts are the main hub of militancy in 2021. More than 90 % terrorist activity has been reported in these two districts.’
In oral submissions the applicant’s representative competently argued the following to which I append some thoughts:
a.Regarding the bombing that killed [Mr E] being the first terrorist attack since 2009, the representative argued that it should be seen as a strong indication of how the Taliban are coming back and able to undertake such attacks.
·   One incident is insufficient to place much weight on the ability or strength of the Taliban to effectively penetrate into Pakistan and undertake such activities.
b.The representative argued that fatalities are not the only measure of incidents of harm. The example of the applicant being beaten severely by the family would not amount to a fatality, but it still amounts to serious harm.
·   I accept this but also accept that the two will be related in that lawlessness will allow impunity for beatings and killings. As such the data on killings can be a proxy for severe beatings.
c.Regarding the protests in Swat against the Taliban, it is not surprising that some are strongly opposed, but it only takes a small number of people to facilitate the Taliban. Broad opposition is not a significant indication of protection against retaliation.
·   Country information submitted by the representative appears to not support this view. For example, the paragraphs revisiting the history of the rise of the TTP in Swat[11] suggest that the initial rise of the TTP came about due to the support of the community and that once the movement turned violent and the public no longer wanted them it was too late as they had gained too much strength. In the current circumstances there are public efforts against the TTP which will work to prevent the widespread support they received before. Having said that, I accept the specific point that only a few supporters are required to facilitate an assassination.
[11] Submission dated 21 October 2022, page 18: 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, page 296-297
d.Trends in Swat are important, and they are showing increasing insecurity. In addition, just because one area of Khyber-Pakhtunkhwa is more dangerous than Swat doesn’t mean that Swat isn’t dangerous.
·   There has been a single year of increased violence in Swat according to the SATP database measured by the number of incidents and civilian deaths. This is not a trend.
·   It is logical that districts bordering Afghanistan will be exposed to more risks and more violence than those further away. As such I do not accept this argument.
e.Relating to the Afghan Taliban’s rhetoric about pushing the TTP away from the border, it was argued that they are saying such things to be accepted by the international community. The Afghan Taliban, it was argued, are having difficulties controlling the TTP in Afghanistan as their capacity is limited.
·   I accept this.
I also note that in the package of submissions there is reference to a view that the Pakistan government is working with the Afghan Taliban government to find a solution alongside alternative competing commentary on how the Afghan Taliban government is not doing enough. These alternate views reinforce the approach I have taken which is that there are too many competing factors in play locally and geopolitically that prevent any conclusive determination being made that the situation will either improve or deteriorate. Instead, I find that for the purposes of considering the reasonably foreseeable future, the situation in 2023 and onwards will continue as it was in 2022.
Overall, for the purposes of this assessment I find that the situation in Swat is moderately safe for the general populace and as such now turn to the specific circumstances of the applicant.
Consideration of claims
The applicant fears harm from the Taliban and their associates for the reason of his and his family’s past actions and of any future actions he may undertake as a member of the VDC. The question to be answered is whether someone of the applicant’s profile faces a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
When considering the risk the applicant faces and in referring to ‘the Taliban’ I include in that nomenclature all violent jihadist groups using terrorism in Pakistan including any splinter groups within the Taliban and those outside the official organisations structure of the TTP but still fighting against the government such as Islamic State of Khorasan.
Relevant to my considerations is specific information from the experiences of his family members and information regarding those with a similar profile to his alongside general country information.
Regarding the situation of his family members, I note that the country information submitted by the applicant which relates to the situation of current VDC members includes that ‘Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups’ (italics added). I note that the applicant stated that none of his family have been harmed. The DFAT view that family members are also targeted aligns with other country information such as details of the Pakhtunwali customary law[12] which identifies the elder male in the family as being responsible for the perceived transgressions of other family members.
[12] Pashtunwali: Pashtun Traditional Tribal Law in Afghanistan, Kate Fitz Gibbon - August 28, 2021 >
When this interpretation of the customary code was put to the applicant, he responded that it was correct. I asked then, why haven’t the Taliban or the family members of the two Taliban members whom he had reported to the army sought out his eldest brother. In response, he described how his eldest brother had disconnected from the family and he opined that maybe the Taliban had no reason to go after him. He explained that the code applies in different ways to difference scenarios. He said that if you have a personal conflict between tribes or families, for example, if you kill someone and they can’t find you, then they will go to the oldest male. He said that the Taliban followed such custom, but they were also political and so if the oldest doesn’t have the same ideology they wouldn’t do anything to him.
If that was the case, I asked him why the family themselves didn’t come and harm his eldest brother as they would respect the Pahktunwali code, and it would be open to them to call upon it especially as it would give their actions a cover of legitimacy. He responded that he couldn’t distinguish if those who harmed him were family or Taliban.
I note that earlier in the hearing, as described above, the applicant had explained how the customary code was used by the Taliban when he was punished as the host and not the guests during the 2008 television watching incident.
That the applicant’s family have not been sought out and harmed either by the family of the two Taliban who were identified by the applicant in December 2012, the families of the three he identified in Karachi or by the Taliban seeking revenge or for reasons of the applicant and his families past confrontations with the Taliban weighs heavily in considering the applicant’s situation.
I note the opinion of [Mr B] in his letter that states that the applicant’s life is in danger and give this some weight alongside the applicant’s own assessment of his risks.
Regarding the threatening call from Afghanistan, I put to him that the Taliban often called to threaten people but being in Afghanistan they were very far away from being able to do anything to him.[13] He said that it doesn’t mean that there aren’t people near him.
[13] >
The applicant has provided an example of a former VDC member being assassinated, [Mr F], as well as the killing of a head of the VDC, [Mr E], who was also a village elder.[14] He also detailed the death of his [relative], [Mr G], who was killed in the bomb blast that targeted [Mr F]. The evidence provided by the applicant about his past and notably the information that led me to question whether the applicant was even a member of the VDC, leads me to describe his profile now and into the future as low-level. Due to a lack of supporting evidence, it cannot be said that he was or will into the reasonably foreseeable future become a leader of some sort. This is relevant as the level of threat the applicant faces is largely based upon his level of interest to the Taliban.
[14] Submission dated 21 October 2022, page 23

While the applicant has had a history with the Taliban, it is distanced in time and did not lead him to face harm during the years that he lived in Swat. I acknowledge that he received a threatening phone call, from Afghanistan. But to actualise the threat the Taliban would still need to dedicate the resources and navigate through Pakistan’s intelligence and security apparatus as well as overcome the growing disquiet among the populace towards the Taliban.
Is there a real chance that the Taliban would dedicate the necessary resources to see through the assassination of what I deem to be a low-level target? I find that there is not a real chance and as such nor a real risk that such a scenario would play out. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia by the Taliban for reasons of his past and/or his future profile. To avoid doubt his profile includes the actions and their repercussions upon him of his family. In considering this risk I have also taken into consideration the applicant’s mental health situation and note that this risk would not be amplified by the applicant’s condition such that it would raise the level of risk above a real chance or a real risk.
The applicant also expressed a fear of harm from the VDC, writing, ‘I also fear being targeted by the VDC’. I asked the applicant at the hearing about this claim. He explained that the role played by the Pakistan army is sometimes confusing and its difficult to know who is who and hard to trust anyone. He said that sometimes they are sitting with the Taliban and then the next day they are targeting them. When I asked whether there was a particular incident where the military targeted VDCs, he responded that there were plenty of incidents where events occurred close by, but none where the army targeted members.
While I accept that there are instances of Pakistan officials playing both sides or being perceived to be colluding, without specific country information or even specific examples the applicant could convey orally at the hearing, I find that the possibility of the applicant being caught up in a convoluted situation where the army is somehow misled to believe that the VDC the applicant is associated with or the applicant himself should be targeted is remote. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm as a necessary and foreseeable consequence of removal from the Army or other arms of the government. In considering this risk I have also taken into consideration the applicant’s mental health situation and note that this risk would not be amplified by the applicant’s condition such that it would raise the level of risk above a real chance or a real risk.
The applicant also expressed fears of harm for his children. He provided reasons for his concerns. While it is conceivable that in protecting his children, he would somehow face collateral harm this possibility is extremely remote. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm as a necessary and foreseeable consequence of removal from collateral risks arising through the harm his children may face. In considering this risk I have also taken into consideration the applicant’s mental health situation and note that this risk is not shaped by the applicant’s actions but rather the reaction of the Taliban to a perception of his views and values and as such his mental health situation does not exacerbate the risks he faces.
Cumulative
In considering the applicant’s claims cumulatively I turn my mind to consider how they may overlap such that the possibility of their occurrence becomes more than a real chance or a real risk or that the severity of the harm increases to something greater than serious harm or significant harm. While it is possible that through his efforts to protect his children his background and history become known and that these factors combined amplify the chance and the level of harm, I find that such a situation remains remote.
In considering all possible combinations arising from the evidence, I find that even when considered cumulatively while considering how the applicant’s mental health challenges may reverberate across these risks and taking into consideration the current and future security situation in Swat, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy President

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 675

30 January 2023

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