1801188 (Refugee)

[2023] AATA 862

1801188 (Refugee) [2023] AATA 862 (14 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Verma Sanmati (MARN: 1276020)

CASE NUMBER:  1801188

OUNTRY OF REFERENCE:  Pakistan

MEMBER:Paul Noonan

DATE:14 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

Statement made on 14 February 2023 at 9.03am

CATCHWORDS

REFUGEE – protection visa – Pakistan – political opinion – Pakistan People’s Party – opposition to the Taliban – peace committee member – race – Pashtun – armed assault – army informant – fear of killing – internal relocation – 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

CASES

ABAR15 v MIBP (No 2) (2016) 242 FCR 11
FCS17 v MHA (2020) 276
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 4 May 2015. The delegate refused to grant the visa on the basis that the real chance of serious or significant harm to the applicant does not relate to all areas of Pakistan.

3. The delegate was satisfied that the applicant’s country of nationality is Pakistan and the Tribunal is also so satisfied on the basis of his Pakistan passport, a copy of which is retained on the Department file, and accordingly has assessed his claims with respect to Pakistan as the country of reference or receiving country for the purposes of this appeal.

4. The applicant appeared before the Tribunal on 28 October 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 Tribunal was aware of, and took into account, the applicant’s stated mental health concerns while conducting the hearing. The Tribunal found the applicant to be lucid in his answers to the questions directed at him and considered he was able to engage in a meaningful manner with the Tribunal throughout the hearing.

5. The applicant was represented in relation to the review.   

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Procedural history

12. On 7 April 2014 the applicant was granted a student visa and the applicant arrived in Australia [in] February 2015. The applicant then proceeded to lodge a protection visa application on 4 May 2015. 

13. In applying to the Tribunal for review of the delegate’s decision the applicant supplied the Tribunal with a copy of the delegate’s decision.

    CONSIDERATION OF Claims and evidence

14. The applicant has made the following pertinent disclosures with respect to his background and profile. He was born in [a named neighbourhood in] Swat District, Khyber Pakhtunkhwa, Pakistan. He is of Sunni Islam faith. He speaks Pashto, Urdu and English and reads and writes Urdu and English.

15. The applicant claims to fear persecution, should he be required to return to Pakistan, because of his and his family’s political views against the Taliban and support of the Pakistan People’s Party (PPP) which the militants oppose.

16. After reviewing this matter and the extensive photographic and reporting records on the Department file, and discussing the matter with the applicant, the Tribunal finds that the evidence credibly reflects the following pertinent aspects of the applicant’s history:

    ·The applicant supported and worked in the PPP as a Youth Leader.

    ·The applicant’s father worked as [Official 1] responsible for Women’s Welfare Programs in Swat.

    ·The applicant’s father occupied the position of [Position 1] in Swat.

    ·The applicant’s father worked in [Women’s Programs].

    ·The applicant’s younger brother, [named] worked as a Youth Leader in college and more recently as a [Position 2] for the local council in Swat.

    ·The applicant’s family in general is associated with work through a local Swat peace committee.

    ·In mid-2008 the applicant’s father was threatened in a letter by the Taliban. The threat was made that if he did not stop his activities his children and other family members would be harmed.

    ·Two close friends of the applicant’s father, [named] were killed by the Taliban.

    ·Two elected officials close to the applicant’s father, [named] were killed in different attacks by the Taliban due to their involvement.

    ·In 2008 the Taliban came to the applicant’s family house and attempted to take the applicant’s grandfather. This was resisted and they took the applicant’s father to a compound for three days before releasing him.

    ·[Number of] female centres under the applicant father’s responsibility were bombed.

    ·In December 2008 Mawlana Fazlullah instructed his supporters to kill each member of the applicant’s family.

    ·In January 2009 a Taliban suicide bomber attacked the applicant’s school.

    ·[In] May 2009 the applicant, his [uncle] and friend [named] were travelling from the uncle’s house near [a named town] when they were ambushed while in a car. His uncle was hit by three bullets. The friend was hit by one bullet. The applicant was not hit. The applicant experienced mental health issues due to post traumatic stress following on from this attack.

    ·In September 2009 the applicant’s family supported the army in a push to remove militant Taliban from the local area.

    ·In 2010 and 2012 the applicant’s father was again threatened over the phone by the Taliban about his work in local women’s programs and the peace committee.

    ·In November 2014 the applicant’s father, grandfather and cousins were attacked in the street by gunmen. His family members were armed and managed to fend off the attack.

    ·The applicant’s father has now retired from official duties and his brother has a role on the local council in Swat as [an occupation 1].

    ·The applicant’s family, including his father and brother, continue to reside in Swat District to this day.

17. The applicant confirmed that most of his immediate family remain residing in Swat. They have not recently made any moves to live anywhere else in Pakistan. He confirmed that he is Sunni Pashtun.

18. The Tribunal put to the applicant that it accepts that the applicant’s father and brothers were very active in the local peace committee but also that the applicant’s role was less than theirs. The applicant explained that his role was to assist the army in identifying Taliban households during the army crackdown and so he was threatened. The Tribunal noted that in his previous statements he had only stated that threats were directed at his father. The applicant claimed that the attack on the car was directed at him because of his father’s job and his uncle was injured. He left for Punjab after that attack and came back when told the Taliban had been removed. He found they were still in the area in smaller numbers and still launching attacks. The peace committee had converted into the village defence committee and was armed. His grandfather was on this committee.

19. The Tribunal put to the applicant that, since he left Pakistan, the evidence indicates there have been no attacks against his family. The Tribunal noted that this may indicate no ongoing adverse interest from militants against the applicant’s family and by extension against himself, given all of his family members had prominent local roles both political and defence orientated. The applicant responded that his family know he has been under psychological stress and as such they don’t tell him everything. The Tribunal put to the applicant that, as he is applying for protection, if his family was under sustained attack or threat from militants that it may expect that he would provide evidence to that effect. The applicant again cited his health.

20. The Tribunal asked the applicant about the current situation in Swat District. The applicant submitted it is bad. When asked how he knew this the applicant cited Facebook sourced news. When asked what Facebook page he looks at he stated “Swat News”. He stated that the Taliban has returned back to Swat District and there are lots of attacks occurring. Recent attacks in Swat District have been targeted against high profile village defence community leaders with one cited in 2020. The applicant noted that the Pak Institute for Peace Studies (PIPS) report in 2021 documents attacks in Swat District. The Tribunal put to the applicant that DFAT sets out that with respect to the security situation in Pakistan that following recent improvements the security situation has again deteriorated. 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. Terrorist attacks increased in 2021, following a six-year downward trend noted by 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 and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. 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 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.[1] The applicant cited very recent attacks in Swat District by militants including two members of a village defence community which the Tribunal has also considered.

    [1] DFAT Country Information Report, Pakistan, 25 January 2022, p. 13

21. The Tribunal discussed the situation for the applicant’s family in Swat District. The applicant stated that his family routinely carry guns for protection. The Tribunal noted that it has been many years since the applicant has lived in Swat District. The Tribunal asked him why he would have any adverse profile after such a period of time. The applicant submitted that he would be facially recognised should he return by local militants as he was an army informant and this was known. The homes he identified were destroyed by the army. The Tribunal notes photos of demolished homes submitted by the applicant. He stated that he started this role at the end of 2009 for revenge due to the car attack he suffered. He confirmed that in 2009 he was a [grade] school student. The Tribunal noted that the applicant had stated that he left school in [year] and joined the Village Defence Committee (‘VDC’) then. He said that he was then assigned night patrols and required to identify Taliban houses then. The applicant agreed this was the case.

22. The Tribunal put to the applicant that it might expect that if he was engaged in work identifying Taliban houses in 2009 that he would have set that out in his written claims. Rather he first mentioned such tasks being undertaken in 2012. He then stated that he made a complaint in 2009. The Tribunal is troubled by the inconsistencies in the applicant’s accounts of his claimed role as an army informant. He has variously claimed that he left the area after the car attack, that he had started identifying local militant houses after the attack in 2009, that he only made a complaint in 2009 and that he first joined night patrols in 2012 in which he identified Taliban houses. The Tribunal would expect a consistent account of such an important claim. The fact that this has not occurred causes the Tribunal to doubt the credibility of the applicant’s claim to have been an army informant responsible for the identification and demolition of Taliban houses. However, given the applicant’s accepted family history, the Tribunal is prepared to accept that he did participate in village defence community night patrols for the purposes of ensuring local security for a period from 2012. The Tribunal does not consider that this activity would raise his profile with the Taliban to the extent that he would be marked as an army informant over and above his accepted roles as a member of the VDC and PPP political party and as a member of a prominent local family involved in the VDC and the PPP political party. To be clear the Tribunal does not accept that the applicant will face a real chance of persecution either now or in the reasonably foreseeable future for the specific claimed reason of being a past army informant responsible for the identification of Taliban homes that were subsequently demolished.

23. The applicant confirmed that his father continues to use the services of a guard for his protection. He stated that he knows this from pictures of him that he has been sent when his father attends events such as weddings or going shopping. The Tribunal again put to the applicant that he left in 2014 and since then it appears that no member of his family has been attacked. The applicant again cited the recent attack on the village defence committee. He submitted it is just a matter of time and violence could happen at any time against his family.

24. The Tribunal then discussed the issue of relocation and in particular that fact that significant numbers of Pashtuns live in large cities in Pakistan and that DFAT assesses that Pashtuns seeking safety from non-state actors can do so using the anonymity afforded them in very large urban areas with large Pashtun populations. DFAT notes that there are an estimated 20–25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.[2] Further that large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors. Some groups, such as Pashtuns, occupy enclaves in these cities.[3] The applicant responded that he could not relocate to such an urban centre as the Taliban are everywhere. The Tribunal put to the applicant that the chances of him being identified as a person of interest by the Taliban, should he relocate to one of these cities, as one of many millions of Pashtuns, may be considered insignificant as a risk. The applicant stated that his concern is simply that he might be randomly identified in such a city. He also stated that he might be racially harassed in such a city. The Tribunal noted that the authorities have provided his family with some level of protection in Swat District. The applicant simply submitted that the forces are also a target for the Taliban and questioned as such how they can protect him.

    [2] Ibid, p. 20

    [3] Ibid, p. 43

25. With respect to the reasonableness of relocation the applicant stated that he simply can’t see himself doing so and noted he has lived in Australia for many years. He also noted that he has a daughter by birth who has been adopted and is living in South Australia and he wishes to have some contact with her.

26. The applicant agreed that he has studied in the past in Pakistan and that his brother has a position there due to his family’s connections. The Tribunal also noted that his ability to move to Australia and ability to live here may reflect that he would also have the means to relocate and live in a large urban area in Pakistan. The applicant stated that his family is not as financially strong as it once was and remains in Swat District.

1. The Tribunal put to the applicant that DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country.[4] The applicant simply submitted that he does not believe this. The Tribunal gives the country information in this regard considerable weight. The Tribunal finds that there is not a real chance of serious harm to the applicant for this reason should he return to Pakistan either now or in the reasonably foreseeable future.

   [4] Ibid, p. 44

2. The Tribunal notes that DFAT assesses that peace committees have been formed in conflict-affected areas of Pakistan including Khyber Pakhtunkhwa, which contains Swat District, and that their function is to oppose militant groups. This can extend to actual armed engagement. DFAT assesses that members of peace committees and their families are targeted for violence by militant groups and that they are at moderate risk of violence.[5] The Tribunal also notes the more recent upsurge in militant activity in Swat, Khyber Pakhtunkhwa and associated violence. The Tribunal accepts the applicant’s family have been involved in peace committee activities in Swat District and has suffered past targeted violent attacks. The Tribunal has considered the lack of recent harm perpetrated against his family but considers that the above considerations considerably outweigh the recent family history. The Tribunal therefore considers that there is a currently real chance of persecution of the applicant from militants should he be required to return to Swat District for reason of his political opinion and membership of a particular social group being a member of a family involved in peace committees and village defence committees and politics in the form of the PPP party.

   [5] Ibid, p. 30

3. The Tribunal must also consider if the real chance of persecution relates to all areas of Pakistan. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

4. DFAT notes that there are moderate risks of violence against Pashtuns generally in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason.[6] The Tribunal notes that in areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes.[7] The Tribunal gives this country information some weight. However, as discussed at hearing, it is also the case that Pashtuns are the second largest ethnic group in Pakistan with 20 to 25 million Pashtuns in Pakistan with very large Pashtun communities in Karachi, Balochistan, Islamabad, Lahore and elsewhere.[8] DFAT also notes that large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors and that Pashtuns occupy significant enclaves in these cities.[9] The Tribunal gives this country information considerable weight. Further the Tribunal has found that the applicant will not have the particular prominence with the Taliban as an army informant responsible for house demolitions and does not accept that his profile would be such that he would be actively hunted as suggested for this reason in an area of Pakistan outside of Swat District by the Taliban.

   [6] Ibid, p. 20

   [7] Ibid, p. 20

   [8] Ibid, p. 20

   [9] Ibid, p. 43

5. On the basis of these considerations the Tribunal concludes that the real chance of serious harm with respect to the applicant for reason of his Pashtun ethnicity, political opinion or membership of a particular social group being families involved in peace committees, politics and village defence committees in Swat District does not relate to all areas of Pakistan. It follows that the applicant does not have a well-founded fear of persecution.

   Complementary protection

6. As the Tribunal does not accept that the applicant is a refugee the Tribunal has considered the alternative criteria in s 36(2)(aa), being 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 as defined in s 36(2A) of the Act.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[10]

   [10] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

7. For the reasons set out above, the Tribunal has not accepted there is a real chance that the applicant will face serious harm from the authorities or anyone else (with the exception of Swat District) due to his status as a returnee from the West, or from militants because of his Pashtun ethnicity, political opinion or membership of a particular social group being families involved in peace committees and village defence committees outside of Swat District. For the same reasons the Tribunal does not accept there to be a real risk that the applicant will be subjected to significant harm for reason of his status as a returnee from the West, or from militants because of his political opinion or ethnicity dispute as a necessary and foreseeable consequence of being removed from Australia to Pakistan outside of Swat District. The Tribunal does however accept that there is a real risk of significant harm to the applicant in Swat District.

8. In considering the risk of the applicant suffering significant harm as set out in s 36(2A) of the Act, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan and relocating to a large urban area away from his home area in Swat District, the Tribunal must consider whether, under s 36(2B)(a) of the Act it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

9. The Tribunal considered whether it would be reasonable for the applicant to relocate to a large urban area of Pakistan that contains a significant Pashtun population such as Karachi, Balochistan, Islamabad or Lahore. In this context the Tribunal has particularly considered the applicant’s representative’s submissions with respect to the applicant’s mental health. The Tribunal notes a registered psychologist report dated 19 July 2021 that sets out a diagnosis of post-traumatic stress disorder, depression and anxiety with respect to the applicant and an opinion that the applicant may benefit from ongoing psychological intervention. The Tribunal gives some weight to the applicant’s representative’s submission that it would not be reasonable for the applicant to relocate due to his mental health concerns and the poor state of medical treatment available in Pakistan together with some discrimination experienced generally by Pashtuns. While it is the case that the applicant has not required hospitalisation and is employed in Australia, the Tribunal considers the concerns related to the applicant’s specific vulnerabilities related to his mental health outweigh this. In addition, as submitted by the applicant, he would be required to return to an area of Pakistan in which he has not previously lived without family or other support, carrying accepted underlying mental health problems, and after living in a Western country for many years and having fathered a child in the West. The Tribunal accepts as reasonable the submission that the applicant has ongoing mental health problems which may be exacerbated in Pakistan by a chronic lack of adequate mental health care.[11] These factors specific to the applicant cause the Tribunal to accept that the applicant would have great difficulty in establishing himself in  another area of Pakistan especially when his mental health is considered within the context of the apparent widespread discrimination perpetrated against people of Pashtun ethnicity. These factors would, in the Tribunal’s view, cause the applicant a great deal of difficulty in finding accommodation and employment and also in accessing necessary mental health care. On balance the Tribunal finds that it is not reasonable for the applicant to relocate to an area of Pakistan outside of Swat District, in the sense that it is not practicable given the totality of his particular circumstances and overall profile.

   [11] Ibid, p. 10

10. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].

11. The Tribunal is troubled by the country information that sets out that currently Pashtuns are at risk of violence and harm from the authorities, should they come to their attention for any reason, which because of the applicant’s particular profile may be a specific risk to him with regard to his mental health. The current DFAT report sets out that suspects are often killed in ‘encounters’ with the authorities widely understood as a euphemism for extrajudicial killings. In a typical encounter, suspects, who have sometimes previously been forcibly disappeared, are given (unloaded) weapons and driven to a location where they are either arrested or killed by police, ostensibly in the course of a gunfight. A 2019 report by the Human Rights Commission of Pakistan (an NGO) found 3,345 people were killed in police encounters from January 2014 to May 2018. Another report revealed 171 encounter killings in the first six months of 2020. Police are rarely held to account for encounter killings, although a handful have faced criminal charges. In 2021, the US Department of State reported evidence of extrajudicial killings by security forces across Pakistan.[12] Further that there are frequent, credible reports of torture by Pakistani security forces. The most common method is beating, but other methods include sexual violence and humiliation. There are also reports of torture involving electric shocks. In May 2017, the UN Committee against Torture reported evidence the Pakistani military, paramilitary and intelligence services frequently used torture and almost never faced punishment, and expressed concern that extrajudicial executions and enforced disappearances may also have involved torture.[13]

    [12] Ibid, p. 37

    [13] Ibid, p. 38

12. Given the above country information, and the stated risk to Pashtuns who come to the attention of the authorities for any reason, the Tribunal is not satisfied that the applicant could obtain protection from the authorities in Swat District, such that there is less than a real risk of significant harm to him, as the very act of contact with the authorities currently places the applicant in danger of significant harm.

13. Finally, the real risk of significant harm faced by the applicant is one not faced by the population of Pakistan generally and as such the exception under s 36(2B)(c) does not apply.

    Conclusions

14. 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).

15. 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

16. 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. There is also no evidence to suggest that the applicant has a right to enter and reside, whether temporarily or permanently, in any other country.

    DECISION

17. The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

    Paul Noonan
    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.

    …