1801267 (Refugee)

[2022] AATA 4780

1801267 (Refugee) [2022] AATA 4780 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Fayyaz Ali Shah (MARN: 1570276)

CASE NUMBER:  1801267

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Windsor

DATE:9 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2022 at 2:18 pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – political opinion – Pakistan Muslim League Nawaz group – Village Defence Committee member – race – Pashtun – particular social group – people suffering mental illness – threats from the Pakistani Taliban – physical violence – internal relocation – unlawful killings – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 9 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 24 April 2015.

3. In his Protection visa application the applicant indicated he was born on [date] in [Town 1] in the Swat district of Khyber Pakhtunkhwa province, Pakistan.  He stated he is ethnic Pashtun and a Sunni Muslim.  He stated he was married in [Town 1] [in] January 2004.  He indicated he departed Pakistan legally [in] March 2015 via Jinnah International Airport Karachi and arrived [in] Australia by ship [in] April 2015, as the holder of a Maritime Crew visa.  He indicated he subsequently deserted his ship.[1]

   [1] See the Departmental file.

4. In his application the applicant indicated that he and his family members have been threatened and mistreated by the Tehreek e Taliban (TTP or Pakistani Taliban) and he fears he will be killed or mistreated by the TTP and their allies if he returns to Pakistan.[2]

   [2] See the Departmental file.

5. The Delegate refused to grant the visa finding that, while she accepted that the applicant’s father has been involved with the [Town 1] Village Defence Committee (VDC) and is now the VDC [Position 1]; that it is plausible the applicant was involved in VDC activities when he was in Pakistan; his [Relative A] is a member of the local council; his brother is [an occupation 1]; and that family members have received threats in the past, family members have not been seriously harmed by the Taliban ‘post their displacement from SWAT in 2009’.  The delegate concluded that there is not more than a remote or insubstantial chance that the applicant would be subjected to serious harm by the TTP and not a real risk that he would suffer significant harm if he were to return to Pakistan.

6. The applicant applied to the Tribunal for review of this decision on 17 January 2018.  He provided the Tribunal with a copy of the delegate’s decision record.

7. The applicant appeared before the Tribunal on 8 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.

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

   Criteria for a protection visa

9. 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.

10. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

11. 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).

12. 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.

13. 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

14. 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 (the Department), 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.

    CONSIDERATION OF Claims and evidence

15. The applicant’s detailed written claims for protection were set out in a statutory declaration of 28 January 2016.[3]  They are summarised as follows:

    [3] See the Departmental file.

    ·He has [specified children] to his first wife.  Their relationship ended in divorce.  He has [specified children] with his second wife, [named].

    ·He has [specified family members]. [Number] of his [siblings] are married and live with their family members.  The [others] live with his parents.

    ·His brother [Brother A] is [an occupation 1].

    ·His [Brother B] is a student and part-time [occupation 2].

    ·He worked as [an occupation 3] with a shipping company from around [specified year] until April 2015.  He deserted his ship in [Australia] [in] April 2015.

    ·He fears returning to Pakistan because his life is in danger from members of the Tehreek e Taliban Pakistan (TTP).

    ·His life was in danger because of his and his family’s political affiliation with the Pakistan Muslim League Nawaz group (PML(N)) and due to their work for the Village Defence Committee (VDC) to restore peace and stability in conjunction with the Pakistani Army.

    ·His [Relative B] and [another relative] have both previously served as [leaders] of the PML(N) for the [Town 1] area.  [Specified family members] contested the local election in Swat on 30 May 2015.  [One] was unsuccessful but [another] was elected as the mayor of [a] council.

    ·His father is the current [Position 1] of the VDC for their area.  He is also a member of the [named] Police Committee.

    ·When Mullah Fazlullah came to prominence in 2006 he was supported by many local people in Swat, including the applicant’s neighbours.  When Mullah Fazlullah stated to challenge the writ of the government, his father was selected as a member of [a negotiating] committee, which would negotiate between parties in dispute. 

    ·On many occasions, the applicant, his father and his [family members] would have arguments with their neighbours who had joined the Taliban, [Neighbour A], [Neighbour B], [Neighbour C] and [Neighbour D].  Following one such argument with [Neighbour B] in around late 2007, he was approached by a group of Taliban with guns who said they were going to kill him.  They left when neighbours and other villagers intervened but warned him he should not interfere in their business.

    ·He has spoken out against Mullah Fazlullah and his followers.  In about early January 2008 he refused to give the Taliban donations.  A few weeks later he refused to join them, saying he cannot support those who are against humanity and want to violate the law.  He was beaten harshly and warned against ever speaking out against them again.

    ·His father joined others in requesting the then President, Pervez Musharraf, conduct an army operation against the Taliban.  Mullah Fazlullah ordered his followers to kill those who requested an army operation, along with their families.  [In] April 2009 a group of about 12-14 Taliban came to their house, including [Neighbour B], [Neighbour A] and [Neighbour C] and terrorised their family.  They ordered his family to leave the village and never return to Swat so the family went to Peshawar.

    ·The Army began an operation against the Taliban in May 2009 and the majority of the people were evacuated from Swat as Internally Displaced Peoples (IDPs).  They returned in August 2009 when the Army declared victory over the Taliban.  They found their home had been robbed and partially damaged.

    ·A VDC was formed at the request of the Army and his father was amongst the first who joined.  The applicant also joined in around the end of 2010.  They undertook night patrols to prevent the Taliban from entering the area and provided the Army with a list of known Taliban, many of whom were arrested and subsequently killed by the Army, including [Neighbour A] and [Neighbour C].  Other Taliban members such as [Neighbour B] and [Neighbour D] are still missing.

    ·He was actively involved in the VDC along with his father.  He assisted the Army in identifying houses of members of the Taliban, distributing rations, undertaking night watches and attending meetings with the Army.

    ·He also accompanied his father when his father attended political meetings, so everyone knows he is the son of [his father], member of the PML(N), and that both are members of VDC.

    ·In December 2012 his father was threatened over the phone by [Neighbour D].  He said they would kill the applicant as he is the family breadwinner, and threatened to harm his father if he continued to work with the VDC, a political party or with the Army.  His father was given a police guard.  His father has also been issued a gun licence.

    ·When the applicant returned to Swat near the end of 2013 he resumed his activities for the VDC.  [In] January 2014 he received a threatening call from a Taliban member.  The caller said he and his brother, who is [an occupation 1], would be killed very soon.  Soon after this the applicant went to Peshawar and then to Karachi where he kept a low profile.  On 13 June 2014 he saw [Neighbour D] and [Neighbour B] in a market where he was shopping.  When they recognised him and started to come towards him he ran, managing to escape.  The next evening he received a call from [Neighbour B] saying he knows the applicant’s location in Karachi.  The applicant reported the presence of Taliban to the police in Karachi who said they would investigate but could not lodge his complaint.  The applicant was able to secure another shipping contract and leave Pakistan at the end of July 2014.  He came to Australia twice and even though he wanted to, he was not allowed to go ashore and therefore could not leave his ship.

    ·The applicant returned to Karachi around the end of November 2014.  His father advised him not to return to Swat as he had received a further threat so the applicant stayed in Karachi.  He was able to join another ship [in] March 2015.  He deserted this ship in [Australia] [in] April 2015.

    ·The Taliban are actively involved in target killings and have killed many VDC members throughout Swat.  The authorities cannot provide protection as they themselves are targeted by the Taliban.  The Taliban has a strong network around the country.  He has been to Peshawar, Saidu Sharif and Karachi but couldn’t find a safe place in Pakistan.

16. The applicant submitted to the Department copies of a number of documents in support of his claims.[4]  These include:

    ·A letter of support dated [in] June 2017 from [the] President of the PML(N) for [Town 1] tehsil in Swat district attesting to the support given to the party by the applicant’s [specified family members], and the applicant himself.

    ·Evidence that the applicant’s [Relative A] was elected to the [Town 1] tehsil council as a PML(N) representative, as the holder of a seat reserved for women.

    ·Evidence that his [Brother A] is [an occupation 1] for Swat district.

    ·A letter of support from the applicant’s [Relative A], who indicates she is part of the local government and holds the status of [Position 2] of Tehsil [Town 1] for the PML(N).

    ·A licence to hold weapons (AK-47 and a pistol) issued to the applicant’s father.

    ·Applicant’s father’s VDC card.

    ·A letter of [February] 2016 from [a named official] of the [Town 1], Swat VDC, indicating that the applicant’s father [is] their current [Position 1] and the applicant was also a member of the committee.

    [4] See the Departmental file.

17. On 1, 2 and 7 November the representative provided copies of a number of documents in support of the review application, including a further statutory declaration of 1 November 2022 by the applicant; copies of photographs of the applicant’s father undertaking VDC and PML(N) related activities in Swat; a statutory declaration of 31 October 2022 by [Cousin A], who describes the applicant as his ‘fraternal cousin’; a police security advisory dated [September] 2022 to the applicant’s father; a medical certificate dated 24 September 2022 for the applicant indicating he underwent surgery [in] September 2022; a psychological report for the applicant dated 1 November 2022 prepared by [a psychologist]; and a supporting submission dated 1 November 2022 by the representative.[5]

    [5] See the Tribunal file.

18. Relevant additional matters raised in the applicant’s statutory declaration of 1 November 2022 are summarised as follows:

    ·The applicant would sail with his shipping company for about nine months and then  return to his family in Pakistan where he would stay for a few months until his company offered him another contract.  He travelled to many countries including Australia.  They were not allowed to go ashore and he lived and slept on the ship.  Sometimes he would request shore leave and this would be granted by the shipping master.

    ·His father holds a prominent position within society and due to this sits on ‘jirgas’ or dispute resolution committees based in [Town 1] police station.

    ·Due to threats to her life, his [Relative A] limited her activities with the local council from about June 2018.  She has resigned her post as an elected member of the local council.

    ·He joined the VDC in 2010 on his return from a voyage commenced in late 2009.  Thereafter, he actively participated in VDC activities whenever he was in Pakistan.

    ·After he received a call from [Neighbour B] saying he knew his location in Karachi, the applicant contacted his shipping company which offered him a voyage.  He joined the ship in [another country].  On arrival in [Australia] he got [specified] pain and was sent ashore for medical treatment.  After the treatment he got a chance to leave and never returned to his ship but sought protection in Australia.

    ·Since the fall of Kabul, the Taliban are stronger.  They have a safe haven in Afghanistan where they can easily hide.  They are re-emerging in Swat and have killed VDC members in the last few months.  A very close friend of his father and VDC member [and] [other people were killed in September 2022.  Another VDC member was killed in Charbah, Swat, a few days later.

    ·Pashtuns face a lot of discrimination and racism in other cities, especially in Punjab.  He will not be able to rent a place for himself in other cities.  He will not be able to get employment as he will not be given any future shipping contracts after deserting his ship.  He has no other skills. He will not be able to support his children.

    ·He has been seeing a psychologist regarding stress which he believes stems from his experiences in Swat.  He will provide a report from his psychologist when it is available.

    ·He underwent [surgery] [in] September 2022 which is also affecting his day-to-day life.

19. In his statutory declaration, [Cousin A] indicates that the applicant is known to him from his childhood due to the close relationship between their families.  He indicated he knows that the applicant’s family and the applicant have been targeted by the Taliban due to their anti-Taliban views and activities, as he was when he was in Pakistan.

20. The psychologist indicates she has been seeing the applicant since he was referred by his General Practitioner on 20 June 2022.  The psychologist diagnoses that the applicant has been suffering from a Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD) and reports panic, depressive and anxiety symptoms.  She indicates he has been attending fortnightly treatment sessions involving a range of approaches including Cognitive Behaviour Therapy (CBT).  She opines that if he was returned to Pakistan ‘his mental health would completely deteriorate and he would be a significant suicide risk’.

21. In his submission, the representative makes legal argument and cites relevant country information, including from the current DFAT Country Information Report, in support of the contention that those involved with VDCs face an ongoing real risk of serious harm by militant groups, especially the TTP.  Significantly, he provides references for a number of recent incidents involving the targeting of political activists and community leaders in the immediate vicinity of [Town 1] in the Swat district.  This includes the firing upon by militants [and specified killing of VDC members].

    Findings and reasons

    Applicant’s identity

22. On the basis of the copy of the applicant’s Pakistani passport provided to the Department,[6] the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be.  The Tribunal accepts that Pakistan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [6] See the Departmental file.

1. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Credibility

3. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

4. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

5. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

6. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

7. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

8. The Tribunal found the applicant to be a credible witness.  He spoke openly and knowledgably regarding the situation in Swat and Pakistan more generally and his oral evidence was broadly consistent with his written statements.  The Tribunal explored an area of apparent inconsistency between his two statutory declarations and his evidence at interview with the delegate regarding his movements from November 2014, but was satisfied with the explanations offered at hearing that this was an oversight due to the passage of time since the events in question and forgetfulness due to his mental health concerns.

   Assessment of claims

9. In essence the applicant claims to fear persecution involving serious harm from the Pakistan Taliban or Tehreek-e-Taliban (TTP) due to an actual and imputed political opinion of opposition to the TTP due to his status as a member of a prominent family in [Town 1] in the Swat District of Khyber Pakhtunkhwa well-known for their support of the PML(N) political party, opposition to the TTP, active involvement with the [Town 1] VDC and support for the Pakistan Army.

   Background - the conflict in Swat

10. The Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989. Maulana Fazlullah assumed control of the TNSM in 2001 and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands. When Tehreek-e Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007 (now part of Khyber Pakhtunkhwa), Fazlullah was named emir (leader) of the Swat Taliban.  Although the TTP and TNSM were not operationally linked at that time, they were allied and TNSM militants in Swat were also referred to as the Swat Taliban.[7]

    [7] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289-313; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November.

11. The TNSM attacked targets in Swat which it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, and artists,[8] and used beheadings to advertise its strength.[9]  The Khyber Pakhtunkhwa Provincial Government entered into a number of ceasefire agreements with the TSNM from 1994,[10] however, these did not lead to a lasting peace and the TNSM gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence and displacement of the local population.[11]  Fazlullah effectively set up a parallel government in Swat in 2007, controlling the area until 2009 when he and his group were defeated by an army offensive.[12]  The army offensive against the Taliban in Swat commenced in May 2009.  During that time the military is reported to have sent 15,000 troops into Swat to confront about 4000 Taliban militants.  Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people (IDPs) in the month after the offensive commenced.[13]

    [8] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28

    [9] Mustafa D and Brown K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; ‘Taliban behead two government officials in Swat’ 2009, Dawn, 3 May

    [10] 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

    [11] Ibid, pp.289-313, especially page 302 for reference to a, so-called, ‘Taliban Police Station’

    [12] Siddique, Q. 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November, pp. 39-43 < Kronstadt, K.A. 2010, ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June, p. 19 

    [13] Macey, J. 2009, ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June ;

12. The Tribunal accepts that the applicant is a Pashtun from [Town 1] in the Swat district of Khyber Pakhtunkhwa province, is of the Sunni Muslim faith, and that, with the exception of the period from mid-April until August 2009, his family lived in Swat through the period when the Taliban controlled Swat until they were defeated in the Army operation in mid-2009. 

13. The Tribunal finds that the applicant’s evidence indicates his family is a prominent, well-respected and moderately well-off landowning family in [Town 1], his father having been a supervisor with [Employer 1], a leader in the local PML(N) and [Position 1] of local VDC, following in the footsteps of the applicant’s [Relative B], who was [an official] of [Town 1] in the late 1990s.  The Tribunal accepts the applicant’s evidence that, due to his prominent position in local society, his father sits in ‘Jirgas’ (traditional Pashtun tribal councils) and performs the role of mediator in disputes.  The Tribunal also accepts the evidence indicating that the applicant’s [Relative A] was elected as a PML(N) representative to the [Town 1] council in 2015.

14. The Tribunal notes that the applicant worked as a seaman ([occupation 3]) from [specified year] until April 2015 and that his work took his away from Swat and Pakistan for long periods (approximately nine months of the year).  The Tribunal accepts, however, that when he was in Pakistan the applicant, who [has specified] siblings, supported his father in political activities.  The Tribunal also accepts that the applicant participated as a member of the VDC from 2010, when he was in Pakistan.

15. The Tribunal accepts as plausible and consistent with country information, the applicant’s evidence that his and his family’s views brought them into direct conflict with the Swat Taliban from 2007 until April 2009.  The Tribunal accepts that the applicant was threatened in late 2007 following an argument with a neighbour, [Neighbour B], who was a follower of Maulana Fazlullah, and subsequently was threatened by armed Taliban that he should not interfere in their activities.  The Tribunal accepts that the applicant was badly beaten, kicked and left semi-unconscious by armed Taliban in early 2008 having refused to make a donation to their cause and subsequently to join their organisation.  The Tribunal also accepts as plausible that the applicant’s family were forced to leave [Town 1] in April 2009 (ahead of the broader evacuation of civilians from Swat) when a group of armed Taliban came to the family home threatening to kill them because the applicant’s father had been among elders calling on the then President, Pervez Musharraf, to authorise a military operation against the Swat Taliban.

16. Country information indicates that the campaign against the Taliban and its supporters in Swat was brutal, with atrocities also committed by the Army.  According to a 2009 report, an estimated 300 to 400 corpses of suspected Taliban militants, last seen alive when taken away by the Army, were found on street corners, bridges or outside homes throughout Swat and it was unclear whether the executions were perpetrated by the Army, local tribal militias or other Taliban insurgents.[14]  According to another 2009 report, “scores, perhaps hundreds” of bodies of tortured militants were found on the roads of Mingora (a major centre) and in rural areas that were former militant strongholds in the aftermath of the Army offensive and local residents blamed the military.[15]

    Nature of the applicant’s role with the local Village Defence Committee (VDC)

    [14] ‘The law in whose hands?’, The Economist, 1 October 2009.

    [15] Perlez, J & Shah, P, ‘Pakistan Army Said to Be Linked to Swat Killings’, The New York Times, 14 September 2009 (CISNET Pakistan CX233452)

17. The applicant has indicated that when the Army operation ceased in August 2009, the Army requested that local influential people in Swat form VDCs to combat the Taliban by assisting the Army to prevent the Taliban from re-establishing itself in Swat, and that his father was amongst the first people in [Town 1] to join the local committee.  The Tribunal accepts this is the case.  The applicant indicated the role of these committees was to assist the Army to maintain peace and stability by identifying local Taliban members and supporters, who were detained, and to organise and participate in night patrols in each neighbourhood to raise the alert in the event of any attempts by Taliban to infiltrate the area.  The Tribunal finds this is consistent with relevant country information.

18. The Tribunal accepts the applicant’s evidence that, when he returned to [Town 1] at the end of 2010, having completed a lengthy voyage, he also joined the [Town 1] VDC.

    The situation in Swat post 2009 – target killings, including of VDC members

19. Independent information before the Tribunal indicates that, despite the defeat of Taliban militants in Swat by the Pakistan military in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military continued.[16]

    [16] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at >

    In April 2010 two peace committee members in Kuza Bandai were killed and three injured by ‘assailants’ according to the US Department of State report[17] and The New York Times.[18]  

    [17] ‘Country Reports on Human Rights Practices for 2010: Pakistan’, US Department of State, 8 April 2010, Section 1g, p.29,

    [18] Tavernise, S. and Shah, P. Z., ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April 2010,

20. A May 2014 report by the Voice of America on Pakistan military operations targeting Taliban strongholds in neighbouring Buner District, noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014, were a ‘clear indication of militant presence in the region’.[19] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[20] who stated that the Taliban in Swat were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region.  Cloughley characterised the Taliban in Swat as being ‘down but…not out’.[21]  The Taliban’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House (in 2013) that the Taliban have become active in Swat again.[22]

    [19] Jan, S, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May 2014, <

    [20] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Cloughley, B, ‘It’s Time to Strike’, The News International, 19 May 2014, <

    [22] ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’, Pakistan Today, 17 September 2013, <

21. There is clear evidence of militant attacks against peace committee/VDC members in 2014,[23] indicating that Taliban militants remained active in the district and continued to carry out sporadic ‘hit and run’ type attacks against peace committee members and Army patrols.[24] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[25] Over the same time period, small groups of Taliban fighters had been infiltrating back into Swat from sanctuaries in the Afghan provinces of Kunar and Nuristan, and militant cells were operating in the Kabal, Matta, Charbagh and Miadam areas of Swat.[26]

    [23] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,

    [24] Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014, ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014, ‘Killing spree - Village defence committee member shot dead’, Express Tribune, The (Pakistan), 28 October 2014, Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014,

22. A September 2014 article in Dawn newspaper indicates that on 15 September 2014 the head of the Gul Jabba village peace committee was gunned-down in broad daylight near a check-post manned by security personnel and the same day two peace committee members were killed in Bara Bandai.  The article comments that over the last three years at least 30 members of Village Defence Committees (VDCs) or Peace Committees have been gunned-down in Swat.  These killings are described as an ongoing process of retaliation for helping the authorities arrest militants and destroy their houses.  The article concludes that continuing attacks are belying the military’s claims of having secured the area from militants and that experts say the Taliban will not be able to regain the hold it had on the Swat valley from 2007-2009 but are likely to restrict their activity to hit-and-run tactics, an ideal guerrilla warfare approach in Swat’s rugged terrain.[27]

    [27] ‘Swat: an unquiet calm’, Dawn, 21 September 2014, >

    An investigative report by Al Jazeera in late 2014, suggests the number of VDC fatalities in the Swat Valley is much higher than reported by the military and other sources,[28] referring to at least 22 VDC members having been killed in targeted attacks across the valley that year alone. 

    [28] ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014,

23. Military spokesperson Lieutenant-Colonel Aqueel Malik stated that there are approximately 3000 peace committee members in Swat, of whom 22 are highly placed on a Taliban hit-list.  He states that the Taliban target tribal leaders because they are ‘soft targets’ and peace committee members because ‘these people worked closely with law enforcement agencies [and the Army] in order to end terrorism.’[29]  According to a December 2014 report by Newsline Pakistan, attacks on people working with peace committees in Swat have continued during the past few years.[30]

    [29] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,

    [30] ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014,

1. Country information also indicates that in September 2014 a curfew was imposed in areas of Swat following the killings of several peace committee members by militants.[31] 

   [31] ‘Indefinite curfew continues in northwest Pakistan’s Swat district’, The Economic Times, 18 September 2014, >

   Against this background, the Tribunal accepts as plausible the applicant’s evidence indicating that his father received threats from [Neighbour D], including that his [son] and family breadwinner (the applicant) would be killed.  The applicant indicated at the hearing that [Neighbour D], along with [Neighbour B], were nephews of [Neighbour A] who, along with [Neighbour C], both former neighbours of the applicant, had died in Army custody after being identified to the Army as Taliban followers by the applicant’s father.  The Tribunal accepts the evidence that the applicant’s father subsequently was issued with a police guard and authorised to carry a weapon for his personal safety.

2. The Tribunal also accepts as plausible that the applicant fled to Karachi in January 2014 after he received a call from an unknown Taliban member threatening that he and his [Brother A], [an occupation 1] in Swat, would be killed as an act of revenge against his father.  While the Tribunal has some concerns regarding the plausibility of the applicant’s evidence that in mid-June 2014 he was seen and pursued by [Neighbour B] and [Neighbour D] when shopping in a market in Karachi, the Tribunal accepts it is possible that, having identified the applicant was staying in the vicinity of that location, they happened to come across him.  The applicant indicated at hearing that, having managed to elude them, he returned to the [accommodation] where he was staying, and which is heavily guarded, and kept a low profile there until he secured another contract and joined a ship in late July 2014.

3. Further reporting in 2016 indicates ongoing target killing of peace committee/VDC members.  In early June 2016, there were reports about a VDC member in Kuza Bandai area escaping an attempt on his life in the Kabal tehsil of Swat district.[32]  A July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence have been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the peace committees.  The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that ‘the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces’.[33]  Reporting in Dawn indicated that security incidents in the Swat Valley in 2016 included fatal attacks on VDC members, police and people with an anti-Taliban profile,[34] including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in Bara Bandai and Manglore.[35] 

   [32] ‘Peace body member escapes attempt on life’, News International-Pakistan, 4 June 2016,

   [33] ‘Restoring Swat’s lights’, The Friday Times, 29 July 2016,

   [34] ‘Target killings: An unending wave in Swat’, Morning Post, 19 January 2016, ‘Shangla DSP killed in Swat’, Dawn, 13 April 2016,

   [35] ‘Village defence body member, guard shot dead’, Dawn, 24 May 2016,

4. A Centre for Research and Security Studies report for the period April – June 2016 indicated that police officials appear to be the main target of violence in Khyber Pahktunkhwa, followed by political activists belonging to the ANP and the pro-government peace committee members.  It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[36] 

   [36] Security Report: April - June 2016, Center for Research and Security Studies, 28 July 2016, CIS38A80121410, p .18

5. In its 2016 Country Information Report, DFAT indicated that, despite security operations against terrorist and militant groups and measures adopted under the National Action Plan (to counter terrorism) having substantially reduced the level of generalised and sectarian violence throughout the country, incidents of target killings continued to occur in Khyber Pakhtunkhwa province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015.[37]

   [37] Annual Security Assessment Report 2015, Pakistan Institute for Conflict and Security Studies pages 26-29.

6. The Tribunal finds that the relevant country information indicates that despite the military gaining control of Swat in 2009 and the resultant improvements in the overall security situation, the Taliban continued to launch attacks against military targets, anti-Taliban political activists, and those they consider support the Pakistan Army and government, including VDC members.

7. The Tribunal also considers that, given the nature of the role of VDC members in assisting the Army to identify Taliban members and supporters, and the consequences for those identified, there is enmity towards VDC members not only from the TTP but also from family members of some of those who were detained by the Army based on the advice of VDC members. 

8. The Tribunal finds that it is relevant that, while the Taliban clearly has targeted VDC members since 2009, the attacks have been sporadic and have only been successful in killing some of the people who were/are involved with VDCs.  The killings appear to be opportunistic and to occur as circumstances allow, which would explain why they have continued over an extended period since 2009 (rather than all targeted VDC members being killed within a short period of time in swift and deadly attacks).

   Risk of persecution involving serious harm should the applicant return to his home in Khyber Pakhtunkhwa now

9. In relation to its consideration of whether the applicant would face a real chance of suffering persecution involving serious harm should he return to Pakistan now, the Tribunal has had regard to relevant country information regarding the current situation in Pakistan, based on the current DFAT Country Information Report, released in January 2022.[38]

   [38] DFAT Country Information Report, Pakistan, 25 January 2022.

10. DFAT notes that, following a six-year downward trend noted by the Pakistan Institute for Peace Studies (PIPS), where terrorist attacks decreased from 1717 (2451 deaths) in 2013 to 146 (220 deaths) in 2020, the security situation in Pakistan has deteriorated since mid-2021.  PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks.  DFAT comments that most attacks happen in Khyber Pakhtunkhwa and Balochistan.

11. DFAT states that in-country contacts told it that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan (DFAT notes that TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021). Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.

12. In relation to ‘peace committees’ (another term for VDCs), DFAT comments that multiple sources told it that committee members and their families were targeted for violence by militant groups (especially the TTP). 

13. DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.

14. The Tribunal considers that the evidence provided by the applicant and his representative of recent killings of current and former VDC members in areas of Swat in and around [Town 1] supports the DFAT assessment regarding the ongoing risk of violence faced by VDC members and their families.

15. The Tribunal considers that, given his personal and family background as the [son] of a prominent community figure and the current [Position 1] of the [Town 1] VDC, it is likely that, should he return to Pakistan, the applicant would again be expected to undertake roles with his local VDC and in support of the political activities of his father.  After carefully considering the available evidence and the relevant country information, the Tribunal accepts that should the applicant return to his family home in [Town 1] in the Swat district of Khyber Pakhtunkhwa, the risk of him suffering serious harm from the TTP or TTP sympathisers as a consequence of his actual and imputed profile of opposition to the TPP and other Sunni militant groups cannot be dismissed as insubstantial or remote.  

16. Accordingly, the Tribunal accepts that should the applicant return to his home in Swat district or elsewhere in Khyber Pakhtunkhwa now or in the foreseeable future, there is a real chance he will face persecution involving serious harm from the TTP or TTP sympathisers.  The Tribunal finds that the applicant’s actual or imputed anti-Taliban political is the essential and significant reason for the harm and that the persecutory conduct feared by the applicant is systematic and discriminatory.

    Real chance of harm must relate to all areas of the receiving country

17. S 5J(1)(c) of the Act requires that if the Tribunal finds the applicant faces a real chance of persecution involving serious harm if he returned to Pakistan, that must relate to all areas of the country.

18. DFAT advises that most terror attacks happen in Khyber Pakhtunkhwa and Balochistan.  While the Tribunal considers there is still a risk of harm to the applicant from the TTP should he relocate to certain areas in Pakistan outside of Khyber Pakhtunkhwa, the Tribunal considers the country information indicates the risk of serious harm from the TTP is significantly lower in some other areas of the country, particularly Islamabad.  DFAT comments that while Punjab and Sindh (especially Karachi) are also targeted for attacks, there were no attacks in Islamabad in 2020.[39]

    [39] DFAT Country Information Report, Pakistan, 25 January 2022, section 2.36.

19. DFAT comments that, while internal migration is widespread and common in Pakistan, it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location.  In this regard, the applicant maintained that he would not be able to get accommodation or work outside of Khyber Pakhtunkhwa because of his Pashtun ethnicity.  He said people are suspicious of Pashtuns and he would not be able to provide necessary references to obtain rental accommodation.  He commented that he has only ever worked as a seaman and that avenue of employment is no longer available to him due to his having deserted his ship in April 2015.

20. DFAT also comments that across Pakistan, ethnic stereotyping, and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes.  DFAT also notes that Pashtuns report frequent blocking of their Computerised National Identity Cards (CNICs) when relocating, which impedes access to property and assets.  DFAT states that the National Database and Registration Authority (NADRA) can block a CNIC for suspicious use ­– or allegedly for certain groups as a form of harassment and indicates it understands individuals have found it impossible to reverse a decision to block a card, and blocking is a precursor to cancelling a card.  DFAT indicates it is also aware of reports CNIC applicants have been told they must travel to a NADRA office in their district of origin to apply to renew their CNIC, but states this is not official policy. DFAT comments that in some cases it may be necessary for applicants to travel to their district of origin to obtain other documents required for a CNIC application, for example, a birth certificate can only be issued by the union council of the district of origin.  While DFAT assesses that Pashtuns outside of Khyber Pakhtunkhwa generally face a low risk of official and/or societal discrimination, DFAT states the risk increases if they come to the attention of authorities ‘for any reason’.[40]

    [40] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.17-3.18, 5.36, 5.39 and 5.42.

21. The Tribunal also notes DFAT commented in its previous (February 2019) Country Information Report that Pashtuns migrating within Pakistan report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR 500,000 (AUD 5,500) on the threat of being listed as a terrorist.  At that time DFAT assessed that Pashtuns faced a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab.  The discrimination and harassment in Punjab was such that DFAT advised at that time that Pashtuns sought to avoid resettlement in Punjab altogether (despite it being Pakistan’s most populous and one of the more secure provinces).[41]

    [41] DFAT Country Information Report, Pakistan, 20 February 2019, sections 3.8-3.12 and 5.32.

22. The Tribunal notes that the US Government’s Travel Advisory indicates that while threats still exist, terrorist attacks are rare in Islamabad where there are greater security resources and infrastructure and security forces are more readily able to respond to an emergency compared to other areas of the country.[42]  The Tribunal considers, however, that it is also possible that the stronger security presence in Islamabad may raise the prospect of the applicant coming to the attention of authorities ‘for any reason’ resulting in a raised risk of him suffering official discrimination or harassment, as outlined above.

    [42] Pakistan Travel Authority, US Department of State >

    The Tribunal also considers that the applicant suffering from serious mental health concerns (Major Depressive Disorder and PTSD) places him at elevated risk of coming to the adverse attention of authorities.  The Tribunal finds that the support and care available to him in Pakistan would be much less readily available and likely much poorer quality than what he receives in Australia.  In this regard, DFAT advises that options for treatment of mental health disorders in Pakistan are limited, with there being fewer than 500 psychiatrists serving a population of over 200 million people, and more than 90 per cent of people with common mental health disorders going untreated.[43]

    [43] DFAT Country Information Report, Pakistan, 25 January 2022, section 2.14.

23. Country information also indicates that mental health remains highly stigmatised in Pakistan.  Some facilities are underutilised due to a popular misconception that mental illnesses are caused by ‘jinns’ (evil eyes or magic) that possess people.  Many people consult traditional healers or visit holy shrines instead of seeking treatment through the medical system.  According to the BBC, mental illness is ‘often not acknowledged’ in Pakistani culture, and is ‘frequently ridiculed’.[44] The News International noted in February 2020 ‘Seeking help for psychological disorders is problematic in Pakistan. Mental illness is often associated with supernatural forces such as witchcraft, possession, and black magic. Families often hide mental illness to prevent the patient from adverse stereotyping’.[45]

    [44] ‘Mental health priorities’, Dawn, 19 November 2016, CX6A26A6E17235; ‘Why Pakistan's poor seek mental health cure at shrine’, BBC, 29 September 2016, CX6A26A6E17234; ‘Mental health care: Mind matters’, The Express Tribune, 24 May 2015, CXBD6A0DE19693; ‘Mental illness in Pakistan: The toll of neglect’, Dawn, 20 September 2014, CX1B9ECAB13064.

    64 ‘Why Pakistan's poor seek mental health cure at shrine’, BBC, 29 September 2016, CX6A26A6E17234 

    [45] The News, Dispelling myths about mental health’, 16 February 2020 

24. After carefully considering all the available evidence and the relevant country information, the Tribunal finds that outside of KP, where the applicant has no family support, he may well be treated with suspicion and/or hostility because of his Pashtun ethnicity, making it difficult for him to find accommodation and employment.  The country information cited above indicates that official and societal discrimination faced by Pashtuns seeking to relocate outside of KP can include ethnic profiling, harassment by security officials, demands for large bribes under threat of being listed as a terrorist, and blocking of CNICS.  The Tribunal finds that the applicant’s vulnerability to harm is greatly increased due to his suffering significant mental health conditions, which are poorly understood in Pakistan, and any odd behaviour could result in him being detained and mistreated.  The Tribunal considers that, in the applicant’s particular individual circumstances, the impact of the official and societal discrimination and harassment that he could face would amount to serious harm in that it could threaten his liberty and cause him significant economic hardship that threatens his capacity to subsist.  

25. The Tribunal concludes, therefore, that the applicant faces a real chance of suffering persecution involving serious harm anywhere in Pakistan, based on a cumulative consideration of the risks of serious harm he faces because of his actual and imputed anti-TPP political opinion, his race (Pashtun ethnicity) and his membership of the particular social group comprising people suffering significant mental health conditions. 

    Availability of state protection

26. In this case, the harm that the applicant fears is from non-state agents (the TTP) and non-Pashtun community members (societal discrimination and harassment) and state agents (official discrimination and harassment).

27. While DFAT comments that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will.[46]  DFAT comments that police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Police work in Pakistan is poorly paid and dangerous, and individual police officers often augment their salaries with bribes.  The public perception of police is generally poor, although it has reportedly improved in recent years. 

    [46] DFAT Country Information Report, Pakistan, 25 January 2022, sections 5.1-5.2 and 5.9-5.10.

28. DFAT indicates that despite measures introduced to curb violence across the country under the National Action Plan (NAP)  - strengthened powers for military and paramilitary security forces and the establishment of military courts - successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses, and their families.

1. On the information before it, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Therefore, the Tribunal finds that the applicant faces a real chance of persecution due to, cumulatively, his actual and imputed opposition to the TPP and other Sunni militant groups; his Pashtun ethnicity; and his membership of the particular social group comprising people suffering significant mental health conditions, should he return to Pakistan now or in the reasonably foreseeable future.

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

   DECISION

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

   Paul Windsor
   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.

   …

   
   

‘ANP leader killed in Swat’,

Dawn, 11 April 2016, policemen shot dead in Dherai’, Dawn, 12 January 2016,

‘Policeman killed and two others injured in Swat attack’, Dawn,

25 May 2016,