1802336 (Refugee)

1802336 (Refugee) [2023] AATA 1072 (25 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Fayyaz Ali Shah (MARN: 1570276)
CASE NUMBER:  1802336
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:25 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2023 at 9:46am
CATCHWORDS
REFUGEE – protection visa – Pakistan – past confrontations with the Taliban – supporter of the village defence committee – member of a family who has taken a position against the Taliban – supporter of the PML-N – returnee from the West – mental health challenges – improved security situation in Swat – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, which I accept, applied for the visa on 28 June 2017.
The delegate refused to grant the visa on the basis that although they found that the applicant has a well-founded fear of persecution the applicant could relocate to Islamabad or Lahore.
The applicant appeared before the Tribunal on 7 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 applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF Claims and evidence
Mental Health
The applicant submitted a report from a clinical psychologist, [Psychologist A]. The report indicated a diagnosis of Post-Traumatic Stress Disorder and Generalised Anxiety Disorder. [Psychologist A] appeared as a witness at the hearing.
I note that the psychologist’s evidence appeared to suggest that some of the factors that are contributing to the applicant’s mental health challenges would not be present were he to return to Pakistan including lack of social connectedness and lack of family support. When this was put to the witness at the hearing, she explained that what she meant with her comments was that were the applicant under a threat of violence in Pakistan such that he would have to disconnect from society and family and relocate, then she would see this as exacerbating the mental health challenges he already bears.
Elsewhere in the report [Psychologist A] noted that social connectedness and family connections are all necessary factors for recovery from trauma, referencing the World Health Organisation and the Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Post-Traumatic Stress Disorder and Complex PTSD.
While [Psychologist A] focused on the risk to the applicant’s mental health were he forced to relocate away from his family I note that it is for this Tribunal to determine whether the applicant’s claims of being under the threat of violence such that he would have to relocate are credible. As such some of the psychologist’s forward-looking assessments, specifically that she expects upon return to Pakistan that the applicant’s ‘mental health will decompensate’, depend upon the findings of this Tribunal.
Furthermore, based upon the evidence from the witness, depending upon the Tribunal’s findings a return to the applicant’s home may work towards mitigating his mental health challenges.
She also identified the current uncertainty in the applicant’s visa situation as contributing to his mental health condition by perpetuating anxiety. But I note that following a resolution of his visa situation this contributing factor would also be removed.
Overall, the evidence presented by the psychologist indicated that there are factors that are leading to the perpetuation of the applicant’s mental health condition by remaining in Australia such as being away from family and social support but there are also elements that minimise his stressors while in Australia which include perceiving to be in a safe environment. Similarly, there are factors that would lead to an exacerbation of his condition if he were in Pakistan and factors that could mitigate the severity of his condition if he were to return. It is a complicated situation to arrive at any certainty and as such I accept that the applicant’s mental health challenges will continue were he to return to Pakistan, noting that he may not receive the professional support he currently receives but I also find that a major contributing factor identified as the absence of social connectedness and family connections will be removed if he is able to return to his family home. For this reason, when considering the impact of the applicant’s mental health on the risks he faces I will consider each circumstance independently.
Evidence and findings of fact
The applicant was born in Charbagh, Swat, a district in western Pakistan. He is married with a child. He has [brothers] and one sister. [A number of] brothers are studying in[Country 1], [one] brother is [age range] years old according to the applicant and [another] brother is a twin with his only sister, both being about [age] years old. The three youngest siblings live with the applicant’s parents along with his wife and child.
The applicant claims that his family have strong political affiliations that began with his grandfather who was involved in politics through the Pakistan Muslim League-Nawaz (PML-N). The applicant claimed that his grandfather was elected as a representative of the PML-N at the district level but that he was disqualified after the 2013 election after serving a few terms. He also claimed that his uncle was a candidate at the district level in the 2015/16 elections. He said that the family actively provides support to any of the family’s candidates.
The applicant claimed to have worked for the PML-N, arranging funding raising, meetings and assemblies in support of the candidate for the party. He stated that he is no longer a member, but his brother is.
Threats from the Taliban and/or other extremist groups
The applicant claims that his family were first threatened by the Taliban in 2007. He explained that when the Taliban first emerged as a force in his district the elders gathered in his family’s guest house under the leadership of his uncle, [Uncle A], to plan how to stop the Taliban. They decided to form a Lashkar to work against the Taliban. This action, he believes, put his family on a hit list. He claimed that whoever joined a Lashkar was named on the Taliban’s radio station to pressure others not to follow them.
In his written statement the applicant noted that once this Lashkar was formed, he along with his uncles, cousins and others joined.
In May 2009 the applicant claims that the Taliban attacked his family home resulting in the death of his cousin. The applicant was not present as he was studying a degree [in] a university in Sindh Province. The applicant recalled receiving a phone call from his father who explained that the house was attacked with heavy weapons and that his cousin died from bleeding after both legs were shattered from gun shots.
The applicant claimed that he chose to study in Sindh province for reasons of safety as it was the ‘most distanced region from’ his home valley.
In mid-2010 it was claimed that the husband of the applicant’s cousin, [Mr A], was killed while travelling alongside the applicant in a rickshaw in Karachi. He claims that shots were fired targeting [Mr A] and he was injured lightly in his left shoulder.
The applicant claims that [Mr A] was targeted as he was a member of the newly established Village Defence Committee, a structured successor to the Lashkar, and had contributed to the identification to the army of Taliban members. It is claimed that [Mr A] learned that his life was being threatened and so he had fled to Karachi. The applicant further claims that he and [Mr A] had together identified members of the Taliban in Karachi and jointly decided to report them to the authorities.
After the incident the applicant described how he had to prepare the funeral while continuing his studies. I noted that the incident didn’t appear to have affected his studies. He said that he was a good student, and he was able to continue, though his averages dropped.
The applicant claims that these incidents fostered greater animosity by his family towards the Taliban. He claims that whenever he returned on holidays from Sindh, he would seek out information about the Taliban and report it to the authorities.
The applicant claimed that his family’s actions against the Taliban led to another attack in November 2012. This involved his uncle, [Uncle A] and his cousin, who were attacked while driving in a vehicle but managed to get away. The applicant claims that this cousin has since been granted protection in Australia.
In September 2013 the applicant claims that their house was attacked with heavy gunfire. He claims that he was present and that he had to hide during the attack. He said that the attackers fled due to the expected arrival of the army.
He said that due to such attacks the family would divide up guard duties and carry heavy weapons around the house. He claims that during that time such attacks occurred more frequently than only those instances that he had presented. He generalised by saying that when they were attacked by 5 or 6 Taliban, they would be able to fend them off, but if a greater number came they would have to call the army.
Other than the 2010 incident in Karachi and the September 2013 attack, the applicant was not present during any of the other attacks mentioned above as he was at university between January 2008 and December 2012 or not in the same location for other reasons.
The applicant claims that upon completing his studies and returning to his village he volunteered for the Village Defence Committee and at the same time found a job with a [company].
In the lead up to the 2013 general elections the applicant claims that he was involved with the PML-N. He said that everyone in the family had a role to play. He gave the example that one person would be a candidate and in such a situation the rest were expected to support him. In addition, he said that his family knew an adviser to the Prime Minister of Pakistan and were connected to others as they were a political family.
During this same period the applicant claims that he saw his name on a list posted on the wall of a mosque. The list was said to be of people the Taliban wanted to kill. According to the applicant, it also included the names of his father, uncle and many cousins. The applicant said that following this incident he applied for a student visa to Australia. It is not in dispute that the applicant subsequently arrived in Australia on a student visa [in] September 2014.
At the hearing the applicant explained that it was normal to post letters/messages on mosque walls as the internet was weak and phones were sometimes shut down. As Muslims go to the mosque it is convenient to post messages on wall. He said that the list contained his name as well as those of his father and uncle, and other members of the general community who were working with the army. He claimed that it was a list that said that ‘these are the people who are working against the Taliban with the army.’ He claimed that they were referred to as ‘spies’. When asked why the list remained on the wall, he said that nobody dared to remove it, as the Taliban had spies in the community. He said that someone must have torn it off eventually as it wasn’t there at a later point in time.
The applicant claimed that in May 2016, while he was in Australia, there was a meeting held in their family guest house that discussed how to improve law and order. He wrote that it was attended by Army officers and VDC members. The applicant claims that following the meeting as the participants went their separate ways [the] second in command of the VDC under his uncle [Uncle A], was attacked and killed in the market. The applicant stated at the hearing that he believes that someone from the meeting had informed the Taliban.
The applicant had submitted to the Department a letter dated 2 November 2016 which is addressed to the applicant’s uncle, “[Uncle A name variant]”, from the Sub-District Police Officer notifying him of ‘some miscreants’ and recommending security measures be undertaken to protect himself.
The applicant described at the hearing how he returned from Australia to Pakistan in 2017 to visit his sick grandmother and during his three months stay he claimed to have assisted the VDC. During this visit and others in earlier years when he was returning from Sindh the applicant claims that he would liaise with the army and arrange meetings on behalf of his uncle who was the chairman even though he was not a member.
The applicant had submitted a document to the Department which was from “[Uncle A name variant]” and addressed to the police reporting an incident [in] June 2017 in which the applicant’s uncle, [Uncle A], was claiming to have been shot at along with others who were accompanying him. There is no mention of any injuries. There is no claim that the applicant was present at that time.
The applicant claimed that initially his engagement with the VDC was as a member, but later, as he was studying at university and wasn’t living permanently in the village, the army asked his uncle to find another person to regularly attend as a member. But he added that everyone in his family was actively involved in some capacity.
The applicant claims that his brother learned that the Taliban were planning to attack the family while he was visiting in Pakistan after they had received some threats, so the applicant’s parents decided that he had to leave so he abruptly left at the end of January 2017.
He claims that these threats were fulfilled several months later when an opportunity presented itself. He added that the car in which his father and uncle were travelling was shot at in June of the same year, but neither passenger was injured. When I noted that this appears to have been the only incident that his father has been involved in, the applicant responded that such incidents were common, but he had focused his evidence upon the main attacks.
In another incident in the following month, he claims that his father found an unexploded hand grenade in their compound which he presumed was thrown by the Taliban, but it had failed to explode. While it is possible that it was the Taliban it is speculative to assume as much. If the intention was to do harm, then a grenade not exploding would most likely trigger a second attempt or some follow up. There are many other reasons why in a place that has seen conflict for decades an unexploded grenade is found on the inside of a walled compound. As such I do not accept the claim that it is an attack by the Taliban.
In a pre-hearing written submission, the applicant updated the Tribunal on his family’s situation including that his uncle [Uncle A] had passed away from health issues and that another uncle was now a member of the VDC.
The applicant claimed in that statement that whenever his father or uncle leave the home they are accompanied by members of their family with guns. He provided photos of his family members sitting in a courtyard, purportedly at their home, with weapons by their sides.
The applicant also provided photos of him standing alongside family members at political gatherings when he was younger. These photos reinforce the applicant’s claims of his family’s roles and actions.
The applicant claimed that there is a return of the Taliban to Swat and that as a result his family has received threats via messages, letters and phone calls. He said that the Taliban would send letters to people who were actively against them. The applicant provided a copy of a threat letter that was sent to his uncle in 2013. He said at the hearing that during that time they received more than one.
He also provided a copy of a threat letter he claims was sent to his family just prior to the hearing. The threat letter to his family demands the payment of 200 million Rupees and names the applicant’s uncles and father and threatens their sons.

I asked the applicant whether he had insights into why his family had not received any threats for a number of years but two weeks after a hearing invitation is sent from the Tribunal a threat letter purportedly from a few weeks earlier is submitted. The applicant responded that the Taliban are getting stronger since taking over Kabul.
The letter is dated 3 September 2022 and mentions the consequences the family faces as being the same as those of [Mr B]. But according to evidence provided by the applicant [Mr B] was killed on the 15 September 2022.
Under the processes of s 424A of the Act on 8 November 2022 a letter was sent to the applicant with the following questions:
You submitted a translated copy of a threat letter purportedly received by your family dated 3 September 2022. It references the death of [Mr B]. But I note that your submissions state that [Mr B] was killed on the 15 September 2022. Can you please provide a response to this apparently conflicting information?
The South Asia Terrorism Portal notes details of incidents and often the names of people killed through terrorist activities. The Portal provides extensive coverage of the death of VDC members. Yet, there is no reporting of a death of [Mr B] on the 15 September 2022. Please provide a weblink to a report of his death.
Please also provide the date of death of [Mr C] who is also named in the threat letter that you provided. If the death of [Mr C] is not included in the South Asia Terrorism Portal please also provide a weblink to a report of his death.
This information is relevant to the review because it questions the specific claims identified above and more generally your credibility.
In response the applicant submitted the following:
a.‘I wish to clarify that [Mr B] and [Mr C] were both killed back in 2008. They were against Taliban and were involved in Lashkar with my family. They have been brutally killed by Taliban and their killing has been marked as one of the barbaric killings by Taliban in our area. Taliban have been using their names to terrorise other people including my family till this day. In 2008 there were no media coverage and their killings have not been reported by any media channel due to the worse situations in Swat.’
b.‘Another member of our VDC, [Mr B] by the same name was most recently killed by Taliban in September 2022 and his killings has been reported by Pakistani media.’
c.The applicant provided links to the killing of the second [Mr B].
The links provided show that a [Mr B] who was a member of the VDC between 2010 and 2015 was killed in September of 2022. While I accept that this killing occurred, I remain sceptical that a threat letter would refer to the killing of a person some 14 years ago and name that person. The argument that the death of the [Mr B] from 2008 was particularly barbaric such that the Taliban would continue to refer to the killing is not plausible considering that so much killing, both targeted and random has occurred since then undoubtedly of equal or greater barbarism but importantly more present in the mind of the people of the community.
Taking into consideration the applicant’s responses but noting that I do not accept that the Taliban would continue to refer to the killing of someone from 2008 and the unlikely coincidence arising from a letter being received just prior to the hearing and none for a long period before that, I do not accept that this threat letter is a genuine threat letter.
Other than where specifically identified, I find the applicant’s narration of events and occurrences credible and as such accept his presentation of the evidence.
Country information
The applicant noted that [Mr C] and [Mr B], both former VDC members in Swat, had been killed recently, the former on 13 and the latter 15 of September 2022.
He claimed that the Taliban have issued warnings to even those who were former members of a VDC. No country information was provided from experts who support such a claim nor has any been found.[1] When this lack of supporting evidence was put to the applicant, he mentioned the above two names. But I note that country information provided by the applicant states that [Mr C] was not just a member but the head of a VDC, but I acknowledge that [Mr B] was a former VDC member as described by the applicant.
[1] Google, Refworld, CISNET were consulted
The applicant also recalled that the husband of his aunt was killed in 2009 and that the Taliban who killed him was subsequently killed by the army and his body thrown away. He said that the Taliban are now warning the sons of his aunt that they will avenge the death of the Taliban man as his deceased body was not respected. The applicant said that memories persist.
While I accept that memories persist, some also diminish over time and others are lost with the passing of those who held the memory. It is also a matter of resources; would the Taliban be issuing threats and pursue people who were a minor threat in the past as opposed to focusing on those who are a major threat in the present. The absence of supporting country information does not support the applicant’s claims of threats to past VDC members being a strategy adopted by the Taliban. As for the applicant’s examples, while I acknowledge that [Mr B] was a former member of the VDC and was killed, even were I to accept that [Mr C] was a former VDC member, he was formerly a head of the VDC unlike the applicant. That there is a single example of someone who was a former member does not indicate that there is a strategy or pattern that would place the applicant at risk. For this reason, I do not accept that warnings are being issued to former members of a VDC.
At the hearing I presented general country information to the applicant and requested his responses. I noted that the number of deaths in Pakistan from conflicts had peaked in 2009 at around 12,000 and then subsequently plateaued at about 6,000 for the years between 2010 and 2014 before continuing to fall to a few hundred in 2019.[2] I noted that for Swat in particular, the pattern was similar with civilian deaths in the hundreds in 2008 and 2009, less than 50 in the years 2010-2014 and since then single digit deaths each year.[3] The applicant responded that the situation was getting better until the fall of Kabul when everything changed. He said that there is a relationship between the Taliban there, who speak Pashto and those in Khyber-Pakhtunkhwa as it was a part of Afghanistan a long time ago.
[2] Political Violence in South Asia: The Triumph of the State? - Carnegie Endowment for International Peace
[3] South Asia Terrorism Portal,
He noted that there was an attack on a police station recently and that there is an increasing number of threat letters being sent. He likened it to how the conflict started in 2007 when he never felt safe. He also claimed that many of the incidents are not in the mainstream media as the army is preventing reporting.
I noted that one reason why terrorist attacks against civilians in Khyber-Pakhtunkhwa had fallen was claimed to be that the militants were changing tactics and targets; they preferred to hit security forces, pro-government tribal elders and political leaders realising that targeting civilians could earn them more public wrath.[4] The applicant responded by saying that he is not a civilian, that he is part of a family with a background. He added that he has a history of involvement in the VDC.
[4] Pakistan Institute of Peace Studies, ‘Pakistan Security Report 2021’
I noted that the Pakistan government is undertaking active military operations against terrorist groups and asked whether they would be able to contain the Taliban. He said that the military undertakes operations with fighter jets using a whole force of army strategy as they did in 2009, but they didn’t succeed then nor can they now. He said that it is impossible for a country to succeed by using fighter jets against their own population. He said that the Taliban in Pakistan were not a small terrorist organisation but a whole movement. He believes it is stronger than ever as now it is a state sponsored movement.
The representative also made submissions including providing statistics on the number of incidents and deaths. But I note that much of what has been provided is for the province level. Statistics from the situation in Khyber Pakhtunkhwa (KP) are not as informative as those of Swat specifically. KP is a large area including the border regions formerly known as the Federally Administered Tribal Areas (FATA) that were administered separately to the rest of KP and have historically experienced higher levels of violence. Swat was not a part of FATA. Some areas of KP may be experiencing increases in violence for reasons not relevant to the circumstances in Swat. As such when specific figures are available for the Swat district, I place greater weight on them than province or national indicators.
The applicant provided recent relevant country information relating to Swat (as well as Karachi for reasons relating to the consideration of relocation but this has not been summarised here). Other country information was also provided that is dated from much earlier and was considered but is not summarised and listed below:
a.Dawn article from 11 October 2022 which describes protests in response to the shooting of a school bus that resulted in the death of the driver and two school children injured in the applicant’s hometown. The article notes that this incident prompted the citizens, ‘to take to the streets against the rising tide of insurgency.’ In response the Deputy Commissioner committed to increasing security in Swat. It also reported claims that the Tehreek-e-Taliban Pakistan (TTP) had announced a shadow government in Swat.
b.From the DFAT report:
i.[2.40] ‘TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have re-pledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians - which was undermining its popular support - to focus on attacks against the Pakistani military and other government representatives. Besides conducting terrorist attacks, the TTP acts as an 'alternative state' in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.’
ii.[3.83] In some conflict-affected areas, including Khyber Pakhtunkhwa and Balochistan, local communities or the Pakistani government have empowered local councils called 'peace committees' (aman jirga) to help oppose militant groups such as the TTP. According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees 'are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out-of-court arbitration'. Villages may also form peace committees of their own accord. Despite their name, peace committees take many guises, ranging from 'keeping an eye on' terrorist activities to actual engagement against terrorist groups as armed tribal militias.
iii.[3.84] Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP).
c.Pakistan Institute of Peace Studies noted that in 2020 there was no considerable progress in the reform process in former FATA. In 2018 and 2019, it was reported that the networks of the TTP were still active either in Afghanistan or in districts of KP such as Tank, Dera Ismael Khan, North and South Waziristan. Fahad Nabeel stated the following on main trends and evolution in the tribal districts in 2020 and 2021:
'If we study and compare the patterns of militant activities in tribal districts for both years, we find similarities in trends. Last year, Bajaur, North Waziristan and South Waziristan districts were the areas that encountered large number of militant attacks. This year, up till July, these three districts continue to dominate the list of areas most impacted by militancy. TTP was the main instability actor last year and this year as well.
However, a major noticeable trend is the frequency of militant attacks in the region, which has increased this year considering the fact that there are still five months left in this year. Moreover, deterioration of security situation in Afghanistan will continue to provide TTP with an opportunity to increase its activities in the region. Pakistani authorities are also fearful of TTP militants entering the country under the disguise of refugees in near future.’
d.An extract from a report by Pakistan Institute for Peace Studies regarding the potential outcome from the peace talks between the TTP and the Pakistan government. The report covers the period April to June 2022. Two relevant passages are extracted:
i.[A]s some recent reports have indicated, after strong reaction and protest from Pakistan on the TTP's growing attacks on Pakistani army, the Afghan Taliban government directed the TTP militants to relocate and stay away from bordering areas. No one knows how effective and successful that tactical move would be, even if implemented in the first place. Secondly, the Afghan Taliban have been mediating talks between Pakistan and the TTP to reach a peace agreement.
ii.However, the terrorist attacks in KP are continuing although the TTP is not claiming them: some are claimed by the Islamic State in Khorasan (IS-K) and others go unclaimed, which some say could be the handiwork of either TTP members not happy with the talks, or local Taliban groups such as Gul Bahadur group. The continuing terrorist violence is apparently validating the concerns that even reaching a peace deal with the TTP may only partially help in reducing the risk of violence and militancy in Pakistan. Not all groups and commanders in the TTP approve the ongoing peace talks. Secondly, one of the negative outcomes of a possible peace agreement with the TTP could be dissatisfied TTP members and commanders' joining the IS-K, which would be a nightmare scenario for the Afghan Taliban as well as Pakistan.
The representative noted that the current DFAT report concludes, ‘DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.’ It is important to engage with the subsequent arguments put forward by the representative regarding this reference as it is relevant to this case but also becoming prevalent in other submissions. As such I extract the argument in full:
At page 6, the [DFAT] report defines 'moderate risk' to mean that 'DFAT is aware of sufficient incidents to suggest a pattern of behaviour.' This is, in our submission, powerful corroboration of the Applicant's claims; DFAT is aware of sufficient incidents of sectarian targeting of VDC members to suggest a 'pattern of behaviour' by militants. This suggests a level of risk far greater than a 'real chance' - which requires nothing more than a neither remote nor fanciful risk. Rather, the DFAT report suggests obvious and immediate danger to VDC members throughout Swat.
To suggest that a pattern of behaviour amounts to more than a real chance is wrong. There are patterns of behaviour that emerge in all areas of life, the connection between alcohol and domestic violence could amount to a pattern of behaviour[5] and yet there isn’t a real chance of domestic violence occurring in every household in which alcohol is consumed. A pattern of behaviour refers to something other than random events. It is relevant to the decision-making process as a well-founded fear of harm must be ‘systematic and discriminatory’. A moderate or high risk may be aligned with a real chance of serious harm, or it may not, the circumstances of each applicant will determine the case. High level remarks by DFAT cannot be used as a substitute for a case specific assessment undertaken by each decision maker in the specific context of an applicant’s claims and circumstances.
[5] ‘Links between alcohol consumption and domestic and sexual violence against women: Key findings and future directions’, ANROWS,
The representative provided a list of incidents in the applicant’s specific home locality of Charbagh:
On 25 February 2020, Javeedullah Khan, the brother of Hameedullah, a journalist and Bureau Chief of Daily Ausaf, was targeted in Shakardara.
On 12 March 2020, Police constable Emran Khan was targeted in a terrorist attack while on duty in Kanju.
On 19 March 2020, Muhammad Ali, a former member of the VDC in Kabal, along with his two children, were fired upon by militants.
On 30 April 2020, a local man Hazarat Abbas was killed in gunfire by unknown persons in Shagai, Bar Shawar, Tehsil Matta. Later on, the police arrested Taliban members Khan Toti, Anwar Ali, Asghar Ali and Ramat Zada Siraj in Koza Bandai in connection with the attack.
On 15th September 2020, Fati Ullah Khan of village Ningolai, Tehsil Kabal, was set on fire in a suspected terrorist attack.
On 13 September 2022, a VDC leader, [Mr C] was killed in a targeted [attack]. The TTP has since claimed responsibility for the attack.
Most recently on 15 September 2022, Tehsil Charbagh member of peace committee Muhammad Shireen was killed in a targeted attack when he was going to mosque to offer his night prayers.
Each of these incidents was discussed with the applicant at the hearing. While relevant, not in each case are the details necessarily aligned with the circumstances of the applicant. I noted that Jaaveedullah Khan was a journalist and Emran Khan a police constable, two professions that are at much higher risk than the profile of the applicant. As noted earlier, [Mr C] was the head of a VDC, a prominent position different to any role the applicant may take up into the reasonably foreseeable future. In these three cases their main line of work or their seniority plays an important distinguishing role as opposed to simply their membership of a VDC. I also note that the reference provided in the submission to Fati Ullah Khan has no mention of him and as such no weight can be placed on this.
I put to the applicant that his representative submitted that the relationship between India and Afghanistan is relevant and asked for his insights. The applicant responded that the Pakistan government is accusing India of supporting the Taliban, giving them weapons and money to use against Pakistan. While this may be true, the relevance to this decision is peripheral in that the threat posed to the applicant isn’t on an international level but local. Whether India is supplying weapons to the TTP will not change the dynamic the applicant is claiming to fear.
Considerations
The applicant has identified a variety of drivers for his fear of the Taliban. These include his and his family’s past actions in support of the PML-N and against the Taliban and for being a returnee from the West.

When considering the risk the applicant faces and in referring to ‘the Taliban’ I include in that nomenclature all violent jihadist groups using terrorism in Pakistan including any splinter groups within the Taliban and those outside the official organisations structure of the TTP but still fighting against the government such as Islamic State of Khorasan.
Prior to considering the specific claims of harm I will engage with the security situation in Swat. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence can and did occur with virtual impunity. With greater security these events are constrained if not eliminated. To undertake this assessment of the security environment, I shared with the applicant quantitative information including the number of terrorist incidents and civilian deaths as well as qualitative assessments. I also considered country information presented by the applicant.
In considering the overall security situation in Swat, I refer to the above-mentioned country information, submissions by the representative and oral evidence provided by the applicant. The question before me is to consider what the future holds and how such an environment will impact upon the applicant’s risk of harm. While I acknowledge that there has been an uptick of violence over the past two years, it has come from a very low base, it is location specific, and it is more targeted than the random violence of the past. Referring to percentage increases in violence over the past two years or percentage decreases since 2009 is not useful. Specifically, for Swat, the number of civilian deaths is low.
While there is some evidence of recent arrivals of Taliban members into Swat there is also reporting of a ground swell of anti-Taliban anger unlike the early 2000s when the Taliban first established their presence among the community. While I acknowledge the arguments put to the Tribunal including, but not limited to, that not all attacks are reported and that the Taliban are now backed by the government of Afghanistan there are also counter arguments such as those included in the country information provided to the Tribunal including that the Afghan government is pressuring the TTP to relocate and stay away from the border. Overall, I find that the security situation in Swat District is moderately safe and that this influences the applicant’s claims, in that it provides a less forgiving environment for potential persecutors to harm him and a lower motivation not to pursue low level targets. In making this finding I acknowledge and take into consideration the Taliban’s success in neighbouring Afghanistan and that this has led to a degree of uncertainty for the situation in Pakistan, including diminishing the value of using the past to inform the future.
I now turn to the applicant’s specific circumstances. I accepted that his family has had a history of incidents, particularly his uncle and cousins, but I note that others such as his father and brothers have not featured or have only limited adverse experiences. The applicant responded that he hadn’t mentioned all of the incidents, only the major ones. I accept this. Noting that those that he did mention included incidents where no one was harmed, I find that the minor incidents he omits are of such a lesser degree such that they would not, individually or cumulatively amount to serious harm.
Of primary concern is determining what type of behaviour the applicant would adopt upon return to Pakistan, specifically, whether he would join the VDC. I note that the applicant was only involved as a formal member in the early days about a decade ago. Since then, during his stay in Swat he said that he contributed but was not formally engaged. He also noted that there is an expectation that one person from a family would play a role, in his case it is his uncle. Nevertheless, this may change and in addition, the Taliban may not be particularly interested in the formalities of membership. As the applicant speaks of everyone in his family contributing, I find that the applicant, as with his other relatives, will continue to contribute but will not formally become a member of the VDC as his uncle carries that responsibility. This does not, however, limit the relevance of the country information regarding VDC members, it simply diminishes his level in the hierarchy and as such level of interest by the Taliban.
In considering the risk faced by the applicant I note that while the past can be an indicator of the future, in certain situations when there has been a distinct change in the environment the past is less relevant. The situation in Swat in 2022 is not the same as it was in 2008 when the applicant first left to study in Sindh nor in 2014 when he travelled to Australia. The situation facing the applicant is best informed by the past several years, a period that on its periphery (five years ago) includes an incident in which a car his father and uncle were in was shot at but nothing else. This is a period during which his brothers, cousins and other family members, who according to the applicant are all expected to contribute to the cause including supporting the VDC, did not encounter an incident that was significant enough for the applicant to mention. The one incident he did claim that occurred was the receipt of a threat letter which I found was not genuine. The applicant did mention that other more minor incidents occurred that he did not mention but noting that they were more minor than what was mentioned they would add little evidence of risk. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the Taliban whether for reasons of his or his family’s past stance against the Taliban nor for any future contributions the applicant will make in line with those of his family obligations as he has in the past and as have other members of his family. In considering this risk I have also taken into consideration the applicant’s mental health situation and reflected on how it may exacerbate the risks he faces.
The applicant has also claimed to fear harm arising from having remained in a Western country for a number of years. He said that the Taliban would consider people living in the West as infidels and as such it would be assumed that he would have adopted these values. Aligned with such a submission, the representative described in a submission the applicant as having secular political views. This claim needs some clarification. I accept that the applicant has secular political views in the sense of rejecting a Sharia state and instead supporting the secular government of Pakistan. Such a view would also be imputed onto him as a result of his stay in Australia. This understanding of the term secular should not infer some form of diminishment of the applicant’s faith.
Noting the stance taken by the applicant’s family to support the government against the Taliban, I find that the applicant having lived in Australia for several years would not add any additional level of risk to him than what already exists. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the Taliban for reasons of having lived in the West for a number of years. In considering this risk I have also taken into consideration the applicant’s mental health situation and note that this risk is not shaped by the applicant’s actions but rather the reaction of the Taliban to a perception of his views and values and as such his mental health situation does not exacerbate the risks he faces.
The applicant has also noted that he has lent support to the Pakistan Muslim League (Nawaz) and that his family were and continue to be heavily involved. This support has included funding raising, meetings and assemblies in support of the candidate for the party. No country information was provided to suggest that PML-N volunteers are at risk of harm. No claim was made that any of the incidents that his family encountered were as a result of their support of the PML-N. In considering the applicant’s limited engagement with the PML-N and the family not experiencing harm for reasons of their support of the PML-N in the past I find that the applicant does not face a real chance of serious harm or a real risk of significant harm were he to resume a role along with his family supporting the PML-N. In considering this risk I have also taken into consideration the applicant’s mental health noting specifically that his diagnosis may limit his level of engagement and possibly change adversely to some degree how well he performs his family obligations towards the PML-N.
In a post-hearing submission the applicant described his mental health situation and added, ‘There are a few mental health facilities in the country and lack of awareness about where to seek help from along with the stigma attached make it even more difficult for people like myself to overcome what can be done on the most debilitating of health issues.’ The nature of the wording and the wider context of the submission with regards to his ability to relocate to Karachi led me to enquire whether the applicant was identifying a new claim which would require a further hearing. In response, the applicant’s representative wrote, ‘He has raised no new claims that he fears harm arising from a stigma. This is a general condition that applies to others in the community who suffer from mental health.’ As the response refutes any claim being made and on the material available to the Tribunal there is no indication that a mental health condition such as the applicant’s would lead to harm in any form, I find that the applicant’s mental health in of itself does not lead to the applicant facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
Cumulative
In turning my mind to the cumulative risks the applicant faces I have considered each of the above individual claims and considered how they contribute to his risks from the Taliban and/or other extremists groups. This may arise as a result of his past confrontations with the Taliban, being a supporter of the village defence committee, being a member of a family who has taken a position against the Taliban and being a supporter of the PML-N as well as being a returnee from the West which creates its own layer of additional perceptions. Noting how the applicant’s mental health challenges may reverberate across the cumulative risks and taking into consideration the current and future security situation in Swat I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy President

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1072

25 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction