1803229 (Refugee)

1803229 (Refugee) [2023] AATA 3359 (20 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803229
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Mark Bishop
DATE:20 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 July 2023 at 2:28pm

CATCHWORDS
REFUGEE – Protection visa – Pakistan – political opinion – supporter of Awami National Party (ANP) – father kidnapped and ransomed – threats and intimidation from the Taliban –absence of recent terrorist incidents in applicant’s home district –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 411, 499
Migration Regulations 1994, r 1.12, 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 25 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 applied for the visa on 10 August 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 20 July 2023 to give evidence and present arguments. The applicant’s brother attended the review hearing but did not give evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia as the holder of a Visitor (Class FA) subclass 600) visa on [date] June 2016. On 10 August 2016 he lodged an Application for a Protection (Class XB subclass) visa.[1] In evidence the applicant advised the Tribunal he had made multiple attempts to gain visas to live both temporarily and permanently in Australia. He listed them in examination as the following:
·13 April 2015 Refused an offshore Student Visa
·27 May 2016 Granted a short term Visitor Visa
·[Date] June 2016 Entered Australia as the holder of a short term Visitor Visa
·11 August 2016 Applied for a Permanent Protection Visa
·25 January 2018 Application for a Protection Visa refused
·11 April 2018Granted a Bridging Visa B
·1 May 2018 Applicant lodged an Application for a Partner Visa [offshore]
·Applicant granted a Bridging Visa A with work rights.
[1] Decision record Doc ID number [number]
The following geographic and demographic matters relate to Pakistan:
·Pakistan includes four provinces – Sindh (capital: Karachi), Punjab (capital: Lahore), Khyber Pakhtunkhwa (formerly the North-West Frontier Province and now including the former Federally Administered Tribal Areas; capital: Peshawar) and Balochistan (capital: Quetta). Islamabad has its own status as a 'Federal Capital Territory'.
·All four provinces have their own elected provincial assemblies and governments. There are 170 districts in Pakistan.[2] Khyber Pakhtunkhwa is divided into 7 Divisions and 39 districts inclusive of the applicant’s District of Charsadda.[3] The applicant comes from [Village 1] in Charsadda District, Khyber Pakhtunkhwa Province, Pakistan. The distance from [Village 1] to the Swat Valley is [number] KM.
·In 2017 [Village 1] had a population of [number] persons. The 2017 census of Pakistan shows the population[4] of the wider area of [Village 1] inclusive of rural and city dwellers to be around [number] persons. In Pakistan, a tehsil[5] is an administrative sub-division of a District. Those are sub-divided into union councils.
·The Swat valley is located in the Swat District Northwest Frontier Province of Pakistan. It is a considerable distance north of Charsadda. Located in-between the Swat Valley and Charsadda District are several provinces and numerous districts.[6] (Mardan, Malakand, Buner, Mansehra, and Lower Dir)[7].
·In the calendar year 2022 there were terrorist attacks in only 4 Districts in Khyber Pakhtunkhwa (KP) Province.[8] Districts effected by these attacks included Charsadda.[9]
[2] "Dividing governance: Three new districts notified in G-B – The Express Tribune". The Express Tribune. Administrative Setup". ajk.gov.pk26 July 2015. Retrieved 5 April 2019
[3]
[4] [deleted]
[5] List of tehsils in Pakistan - Wikipedia
[6]
[7] AAT Paper - Extremists in the Khyber Pakhtunkhwa Province Pakistan dated February 2021, page 30
[8] Update on the situation in SWAT, Pakistan - SWAT District: Recent Security COI (2022 to 06/2023) dated 26 June 2023, page 22, these being Mardan, Mohmand, Nowshera and Peshawar. See Table 3:Terrorist attacks in KP in 2022
[9] Update on the situation in SWAT, Pakistan - SWAT District: Recent Security COI (2022 to 06/2023) dated 26 June 2023, page 23 see Table 10: Affected Districts in KPK in 2022
Charsadda[10] has a total area of 996 sq.kms with a population size of 1,616,198 which comprises of 49% (approx.) male and 51% female population. The area has seen a population growth of approximately 78% in the last 19 years. Charsadda is located in the west of Khyber Pakhtunkhwa (KP) Province and is bounded by Malakand district on the north, Mardan district on the east, Nowshera and Peshawar districts on the south.[11]
[10]
[11] Khyber Pakhtunkhwa-Charsadda - (pakistanalmanac.com)
In his Application for a Protection Visa signed[12] 8 August 2016 the applicant stated the following:
[12] Department File [Deleted], Statement of Claim signed 8 August 2016 at folios 37-39.
·He was born on [date] in [Village 1], District Charsadda located in Khyber Pakhtunkhwa Province, Pakistan
·He completed his [degree] from [a university] in approximately 2012
·His father is a retired public servant and his mother is a housewife
·He has [sisters] (who are married) and two brothers (his younger brother lives with his parents in Pakistan and applicant lives with his elder brother, [name], who is an Australian resident)
·His whole family (including his father) have supported Awami National Party (ANP) “since the beginning”
·He fears returning to Pakistan due to threats against his life because of his and his family’s ANP political affiliations
·In around 2008, he became a member of Pakhtun Student Federation (PSF) - ANP’s student wing
·He actively supported and worked for ANP with his father by attending corner meetings, assisting during election campaigns, and participated in rallies and other organised activities
·Taliban’s activities began in his province in 2001 and killed their opponents
·Taliban supports their organisation by targeting government servants and community elders for ransom
·In early April 2003, Taliban abducted applicant’s father and colleague and held them in ransom for 50 days but they were later released in return of a ransom amount
·ANP won 2008 election and formed government in applicant’s province
·Since ANP’s 2008 election, Taliban have targeted and attacked many ANP members and leaders throughout Pakistan
·Applicant and his father attended many ANP meetings to support their anti-Taliban stance
·In around December 2010, they received a threatening letter from the Taliban directing they stop their ANP activities otherwise the Taliban would kill their entire family
·Applicant continued with his ANP activities and took part in anti-Taliban meetings
·In around February 2011, applicant and his father were driving home when some unknown men tried to stop their car however, they escaped unharmed
·Applicant’s father received a call the next day from the Taliban advising they escaped being kidnapped so Taliban would try again
·Applicant and his father then limited their ANP activities but resumed their involvement during the 2013 election
·In around mid-November 2014, applicant received a threatening call from an unknown Taliban member demanding 4 million rupees otherwise they would try to harm him again
·Applicant then changed his mobile number and applied for an Australian student visa which was refused
·Applicant and his father continued with their ANP activities
·Taliban continued killing many ANP members and their families
·On 12 April 2016, applicant received a call from the Taliban threatening to kill him as a message to his father because he had continued with his ANP activities despite their previous threats to stop
·Applicant asked his brother to sponsor him to Australia on a visitor visa
·On 17 May 2016, applicant and his father were driving in their car when two unknown men on a motorbike shot their guns at them however, they escaped unharmed
·Applicant’s tourist visa was granted and he arrived in Australia on [date] June 2016
·Applicant’s life is in danger by the ‘Tehreek e Taliban Pakistan’ because of his continued affiliations with ANP
·Pakistan authorities are unable to protect applicant from the Taliban as they also target Pakistan authorities.
·Taliban are widely spread in Pakistan and have killed many ANP members in other provinces and cities of Pakistan including Karachi.
The applicant provided copies of the following documents to the Department:
- Newspaper articles reporting his father’s kidnapping in April 2003[13]
- Untranslated document claimed to be copies of police reports about his father’s kidnapping and a Taliban attack[14]
- Various newspapers articles between 2008-2013 covering attacks on ANP members in Charsadda[15]
The delegate[16] made the following findings of fact:
·Applicant’s father was kidnapped by Taliban in 2003
·Applicant’s father is an active ANP member
·Applicant is an ANP member and occasionally provided support and assistance with ANP activities
·Applicant and his father have experienced threats and intimidation from the Taliban, particularly around the 2013 elections
·While living in Islamabad in 2016, the applicant was not targeted by the Taliban and did not receive a threatening call
·Applicant did not travel to Australia because of his ANP affiliation
[16] Department File [Deleted], Decision Record dated 25 January 2018 at folios 96-107
In his Response[17] to the Hearing Invitation the applicant advised the Tribunal he intended to rely upon “…news articles, police report (English translated), further evidence of threats to family, photos, application to police department for protection, government issue gun licenses.” Prior to the hearing the applicant did provide a written submission to the Tribunal.[18]
[17] See Document ID number Doc ID 11107212
[18] See paragraph 17
On 13 July 2023 the applicant provided submissions[19] to the Tribunal. The Tribunal provides a summary as follows:
[19] Doc ID number 11276877
·Application to the Office of the Police in [Village 1], Charsadda dated 9 March 2023 for permission to retain a security guard relating to an abduction of the applicant’s father in 2003 and unspecified and undated threats.
·Copy of a notice of provision of security services dated 29 March 2023 to [name] and his [son]. The services were said to be provided for reasons of “security issues.” No other information was provided that might outline the reasons for the services, the extent of the services, the duration of the services, the cost of the services and the causative reason or reasons that led to the hiring of the firm [name].
·7 undated pictures of two men walking down a street or in a suburban street with two or three accompanying uniformed armed persons described as local police security and said to be the applicant’s brother.
·Police report from [police station] of a “cognisable crime” reported under s 154 Code of Criminal Procedure in the District of Charsadda. A police mobile patrol attended the home of the applicant’s father on 17 May 2016. The report stated the applicant’s father belonged to the Awami National Party and in a “few era back” received threatening phone calls. On the day of the report two men on a motorcycle fired shots close to the applicant’s father. The cause of the “enmity” was alleged to be “…threatening calls were received few era back…”
·Report from Pakistan Institute for Conflict and Security Studies dated 10 July 2023 that addressed the following:
oJanuary 2023 was the deadliest month since July 2018 for the incidence of militant attacks in Pakistan.
oSecurity forces foiled many attacks and arrested numerous militants.
oKhyber Pakhtunkhwa remained the most affected province and militant attacks were reported from Charsadda.
·
Khyber Pakhtunkhwa (KP): Assessment- 2023 listing detail of atrocities, deaths of police, an increase in the number of militant attacks in the province. Reports of militant attacks in 16 of 38 provinces were identified in KP. No reports were set out of incidents in Charsadda. Major areas/provinces of concern were identified. In December 2022 a number of provinces[20], not Charsadda, were identified as
[20] The Police department declared South and North Waziristan, Lakki Marwat and Bannu Districts, terrorist ‘trouble spots’. These provinces are routinely described as “tribal areas”

“trouble spots” due to heightened activity by the TTP following the end of a ceasefire in November 2022.
·Attacks on police and police stations in Karachi in the months of January 2023 and February 2023.
·Newspaper report dated 22 February 2017 about the arrest by security forces of three facilitators of a courthouse bombing in Charsadda in 2017.
·Newspaper reports of threats to provincial
The Tribunal has reviewed all the above material. The Tribunal makes the following observations:
·As noted in Country information below, militant activities and attacks are primarily targeted at police and security forces rather than civilians – see below, attacks against civilians has trended in a decrease in recent years.
·Country information provided by the applicant also evidences this focus of attacks on police, police stations and security forces.
·The hiring of security for personal safety of applicant’s father does not evidence that he is a target by the Taliban – particularly when country information suggests that the Taliban are focusing their targets on police and police stations
·The police Report in 2016 – refers to an incident ‘a few era back’ where applicant’s father received threatening phone calls. The applicant has not provided any evidence of more recent or continuing threats or phone calls, while country information shows trend of targeting of police and security authorities and away from individual civilians.
·COISS report from 14 July 2023 found that there were no reports making reference to terrorist or politically motivated attacks in [Village 1] or Charsadda District more generally. No reports since January 2020 of politically motivated attacks against ANP supporters or retired public servants.
Country Information Pakistan
Awami National Party (ANP)
The recent Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan sets out the following concerning the ANP in Pakistan:
·The Awami National Party (ANP) is a secular Pashtun nationalist political party. It was formed in 1986 and enjoys strong support in Khyber Pakhtunkhwa and Balochistan. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government. Since 2018, ANP members have participated in large-scale demonstrations led by the PTM against human rights abuses against Pashtuns in the tribal regions of Pakistan.[21]
·The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and work to improve the Pakistan-Afghanistan bilateral relationship. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded 69 and killed at least 20, including prominent ANP politician Haroon Bilour. In June 2019, the Peshawar city district president of ANP, Sartaj Khan, was gunned down in Gulbahar, Khyber Pakhtunkhwa. The ANP was also the target of TTP attacks ahead of the May 2013 elections. While security operations have weakened the TTP in recent years, they retain the capacity and intent to target ANP members and leadership (see Armed Groups).[22]
·DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The risk may be higher for ANP leaders. ANP leaders may also be at risk of official harassment due to their association with the PTM protest movement.
·DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The risk may be higher for ANP leaders. ANP leaders may also be at risk of official harassment due to their association with the PTM protest movement.[23]
[21] Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 25 January 2022 Paragraph 3.73
[22] Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 25 January 2022 Paragraph 3.74
[23] Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 25 January 2022 Paragraph 3.75
Peace Committees

The recent Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan sets out the following concerning Peace Committees in Pakistan:
·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., 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.
·Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP).[24]
·Members of peace lashkars or peace committees have benefited from an improved security situation across Pakistan in recent years. However a resurgent Tehrik-e Taliban (TTP) in the Swat district during 2022 has resulted in an increase in terrorist activity.[25]
[24] Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 25 January 2022 Paragraph 3.83 and 3.84
[25] Country Portals - Pakistan Common Claims (27 April 2023).pdf - Standard View (sharepoint.com)
Tehrik-e-Taliban Pakistan (TTP)
Recent reports re increased activity of Tehrik-e-Taliban Pakistan (TTP) outline the following:
·The TTP have continued to target police and military personal in ‘revenge attacks’ across the country since the peace negotiations broke down in November 2022. PIPS[26] estimated that the TTP and its associated groups carried out approximately 179 attacks in 2022, causing an estimated 250 deaths with a majority of them belonging to law enforcement agencies.
·The militant group has intensified its operations within Khyber Pakhtunkhwa and areas bordering Afghanistan. In the first quarter of 2023 multiple attacks, by the TTP and its closely affiliated groups, on police personnel occurred. On 30 January 2023 the largest attack on police personnel occurred where 101 people were killed and 59 were injured after a suicide bomber self-detonated in a mosque in Peshawar’s Police Lines.
·The TTP have warned ruling political parties, including Prime Minister Shehbaz Sharif and Foreign Minister Bilawal Bhutto Zardari it will be taking ‘concrete action’ against the Pakistani government for ‘declaring war’ against their organisation.
- In November 2022 the TTP ended its ceasefire talks with the government and issued an order to its members to carry out attacks across the country. On 28 November the TTP announced an end to the ceasefire and called on all members ‘…to carry out attacks…wherever…in the entire country.’ Since the announcement several terror attacks have occurred – targeting the Hazara community in Quetta, polio workers, police officials, and female students.[27]
Security Situation
The recent Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan sets out the following concerning the overall security situation in Pakistan:
·Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021.Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS). Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks.
·Most terrorist attacks target civilians or security forces, vehicles and outposts. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
·While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks.[28]
[28]Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 25 January 2022 paragraphs 2.34, 2.35, 2.36 and 2.37
Recent activity within the Swat District
Numerous sources outline the following developments with respect to the Swat District:
·August 2022 saw several reports the TTP had returned to Swat District following the June 2022 withdrawal of Pakistan army detachments; with reports the TTP was in control of mountainous parts of Matta tehsil where they were extorting businessmen, and that there had been a clash between TTP and police in Matta.[29]
·There were reports of widespread fears among locals, and estimates of there being or 200-250,[30] or even 400-5003 militants back in Swat. The Pakistan military said the situation was grossly exaggerated, and that a small number of armed men on a few mountain tops between Swat and Dir had been observed, located far away from the population.[31]
·In November 2022 it was reported that the TTP were threatening a provincial lawmaker (apparently a member of KPK’s Provincial Assembly who asked to remain anonymous) in Swat into paying sums totalling Rs1.2 million rupees; and who estimated 80 to 95 percent of well-off residents in surrounding districts are now victims of blackmailing, and that fellow legislators have been targeted for refusing to pay out.[32]
·During 2023 there continued to appear occasional articles reporting a resurgence of the TTP in Swat, and expressing concern about this, and making broad reference to acts of extortion and attack by the TTP, but without providing details of any recent specific TTP perpetrated incidents in Swat in 2023.[33]
·In 2022, attacks by these local Taliban groups were reported from 15 districts of KP, more frequently in Charsadda, Khyber, Kohat, North Waziristan, Bannu, Swat and Peshawar.[34] In 2022 there were 8 terrorist attacks in Charsadda.[35]
[29] 'TTP ‘checkpoint’ established in Swat: report', Nation, The (Pakistan), 12 August 2022, 20220817150710; 'Fear and despair grip Pakistan’s Swat as TTP foothold increases', Umer Bin Ajmal , TRT World, 14 August 2022, 20220822134035; 'Swat between conflict and peace', Usman Torwali, Pakistan Today, 16 August 2022, 20221201101427; Khaliq, F. "Connecting the dots: What really went down in Swat", Dawn, 24 October 2022
[30] SATP, "Swat (Khyber Pakhtunkhwa): Timeline (Terrorist Activities) -2022", August 2022, 3 '‘Cops Taken Hostage, Target Killings, Extortion’: Taliban is Back in Pak's Swat Valley hyberpakhtunkhwa-khyberpakhtunkhwa-swat-Aug-2022
[31] 4 "Military says reports of TTP's large presence in northwestern Pakistan ‘grossly exaggerated’", Arab News, 14 August 2023,
[32] "TTP extortions unabated in Swat: report", The News, 26 November 2022,
[33] 'The Pakistani Taliban’s Reemergence in Swat', Akbar Notezai, Jamestown Foundation, 09 February 2023, 20230417101409; "Taliban has successfully returned to Khyber Pakhtunkhwa's Swat Valley: Report", ANI, 8 May 2023, -swat-valley-report20230508121937/
[34] PIPS, Pakistan Security Report 2022, January 2023, 20230227094910, p.77
[35] See Table 1 PIPS, Pakistan Security Report 2022, January 2023, 20230227094910, p.36.
A recent report from CTC Sentinel located within the Combatting Terrorism Center at West Point[36] provides a comprehensive and current status report on The Tehrik-i-Taliban after the Taliban’s Afghanistan takeover. It sets out the following:
·With Pakistan engulfed by political and economic turmoil, the Tehrik-i-Taliban Pakistan (TTP) is again growing as a threat.
·With a solid organizational foundation and its eyes set on the Pakistani state, the TTP appears ready to follow in the footsteps of the Afghan Taliban and take control of territory in Pakistan’s tribal areas. The Taliban victory in Afghanistan has emboldened and strengthened the TTP. With the Taliban in control of Afghanistan and sympathetic to the TTP, the TTP now enjoys a level of ‘strategic depth’ that is arguably unparalleled in its history.
·The TTP has obtained new more sophisticated weapons and relocated fighter from Afghanistan to Pakistan and is now turning its focus back to its war against the Pakistani state. Over the past two years, the group has gone through a series of mergers, strengthened its media and operational activities, moved away from the indiscriminate targeting of civilians in suicide attacks, implemented a range of new internal policies centralizing its organizational structure, and settled on a localized strategy.
·In sum the Taliban victory in Afghanistan has emboldened and strengthened the TTP. With the Taliban in control of Afghanistan and sympathetic to the TTP, and the group no longer having to fear operations against it there, the TTP now enjoys a level of ‘strategic depth’ that is arguably unparalleled in its history.
·In the aftermath of the Taliban taking control of Afghanistan, four key developments have defined the TTP’s ensuing resurgence: a series of mergers, the adoption of a centralized organizational structure emulating the Afghan Taliban insurgency, growing operational activity, and a sharp strengthening in media operations.
·The TTP’s ascendant trajectory suggests that the current leader, Mufti Noor Wali Mehsud, appears to have been successful in defining and implementing a new strategy based on the group’s internal reform process, which was integral to its survival.
·It became clear in the negotiations with the government in 2022 that the group has limited its immediate objective to territorially controlling the tribal belt adjacent to Afghanistan. For now, this indicates that the TTP has placed limits on its insurgency in the realization that an Afghan Taliban-style victory in Pakistan is currently an unrealistic goal.[37]
Recent activity in and around [Village 1], District Charsadda, Khyber Pakhtunkhwa Province, Pakistan
[36] May 2023 Volume 16, Issue 5
[37] CTC Sentinel May 2023 Volume 16, Issue 5 pages 1 to 10
As the applicant did not provide a written submission to the Tribunal that addressed current CI concerning his birthplace and home of his family in and around [Village 1], District Charsadda, Khyber Pakhtunkhwa Province, Pakistan and the information outlined and summarised above is general, to a significant extent, dated, mostly localised to the Swat Valley and has a mainly whole of whole of country approach the Tribunal engaged in additional CI researches. This CI research provided on request by the Country of Origin Information Services Section (COISS), Department of Home Affairs addressed the following:
1)Are there any updated reports on the extent of revival or reoccurrence of terrorist based or politically driven attacks in or around [Village 1], Charsadda District, Khyber Pakhtunkhwa Province, Pakistan?
2)Are there any updated reports concerning terrorist based or political motivated attacks on low-level members and activists of opposition political parties, or their family members, in or around [Village 1], Charsadda District, Khyber Pakhtunkhwa Province, Pakistan from January 2022 until the present time?
3)Are there any updated reports concerning terrorist based or political motivated attacks on retired public servants or supporters of the Awami National Party (ANP) since January 2020 in or around [Village 1], Charsadda District, Khyber Pakhtunkhwa Province, Pakistan?
In respect of paragraph 24 (1) immediately above reports relating to terrorist attacks that took place in Charsadda District from mid-2020 were located as follows:
·Attacks by terrorists, including Tehreek-e-Taliban Pakistan (TTP) militants, that took place in Charsadda District in November 2020[38], January 2023[39] and February 2023[40]. Reports have also been located which refer to the arrest of a TTP militant in the Sardheri area of Charsadda District in March 2023[41] and the arrest of three ‘terrorists’ in the Shabqadar area of Charsadda District in August 2020[42].
·A spate of terrorist attacks in various areas[43] of Charsadda District some considerable distance from [Village 1] against police officers or police stations.
[38] 'Attack on sensitive agency office: FC man martyred, attacker killed in Charsadda', The News, 19 November 2020. 'Pakistan: Timeline (Terrorist Activities) - 2020 - November', South Asia Terrorism Portal (SATP), 30 November 2020
[39] 'Cop martyred in attack on Charsadda police post', Dawn, 22 January 2023. 'Cop martyred in K-P check post attack', Wahab, N, The Express Tribune, 21 January 2023,
[40] 'Three terrorists killed in exchange of firing with police in Charsadda', Radio Pakistan, 2 February 2023,
[41] 'Three terrorists arrested in Charsadda; explosives recovered', The Law Today Pakistan, 26 August 2020,
[42] 'Pakistan: Timeline (Terrorist Activities) - 2020 - August', South Asia Terrorism Portal (SATP), 5 September 2020,
[43] In the Nisata area of Charsadda District, in the Sardheri area of Charsadda District, in the Dheri Zardad locality of Charsadda District during 2022 or early 2023 against police officers or police stations
In respect of paragraph 24 (2) above advice was received that “No reports have been located which makes specific reference to terrorist attacks or politically motivated attacks on low level members and activists of opposition political parties or their family members since January 2022 either specifically in [Village 1], Charsadda District or in Charsadda District more generally.”[44]
[44] Searches were conducted in relation to this question using the CISNET database and the Google internet search engine.
In respect of paragraph 24 (3) above advice was received that “No reports published since January 2020 have been located which make specific reference to terrorist attacks or politically motivated attacks on retired public servants or supporters of the Awami National Party (ANP) since January 2020 either specifically in [Village 1], Charsadda District or in Charsadda District more generally.”[45]
[45] Searches were conducted in relation to this question using the CISNET database and the Google internet search engine.
The limited and declining number of terrorism related incidents in Pakistan and non-existent terrorist incidents is confirmed by the data contained int the following extracts:
Number of terrorism related incidents in [Village 1], Charsadda District[46] and Whole of Country[47]
[46] South Asian Terrorism Portal (SATP) ‘Data-Sheet – Charsada or Charsadda (Khyber Pakhtunkhwa)’ Updated 17 July 2023
[47] South Asian Terrorism Portal (SATP) ‘Data-Sheet – Pakistan: Number of Terrorism Related Incidents Year Wise’ Updated 17 July 2023
·Year 2017 [Village 1] [number][48] Charsadda District 11 Whole of Country 606
[48] [deleted]
·Year 2018 [Village 1] [number] Charsadda District 05 Whole of Country 325
- Year 2019 [Village 1] [number] Charsadda District 01 Whole of Country 284
- Year 2020 [Village 1] [number] Charsadda District 02 Whole of Country 319
- Year 2021 [Village 1] [number] Charsadda District 02 Whole of Country 424
- Year 2022 [Village 1] [number][49] Charsadda District 02 Whole of Country 630
Numbers of KPK[50] Districts with no recorded Terrorism Incidents[51]
·Year 2017 15
·Year 2018 13
·Year 2019 10
·Year 2020 14
·Year 2021 8
·Year 2022 13
·Year 2023 14
[49] [deleted]
[50] Khyber Pakhtunkhwa Province
[51] Out of 32 districts. Data retrieved from: South Asian Terrorism Portal (SATP) ‘Data-Sheet – Pakistan: Districts’ Updated 17 July 2023
Applicant evidence to Tribunal
In evidence the applicant advised the Tribunal as follows:
·He is married with [children], his wife is pregnant and he is step-father to a [age] year old [child]. He lives with his wife in a genuine marriage. He works and earns an income of approximately $40,000 per annum and is a silent partner in his brother’s business.
·As a child and young man he lived in the family home in [Village 1] a Village of approximately [number] persons.
·He left [Village 1] to attend college and then university in nearby towns or districts. During his educational sojourn he regularly travelled home.
·At university he was involved in the Pakistan Students Federation as an activist within the youth arm of the ANP. He activities centred around membership and campaigning. He held some minor positions of authority in his place of residence whilst at university this being a student hostel.
·Post university he worked as a [Occupation 1] for a succession of companies.
·He is married and is currently processing an Application for a Partner Visa.
·Most of his siblings are married and live close to their parent in [Village 1].
·He does not and has never held elected, appointed or executive office in the ANP, its youth wing or any other political party. The presence of the ANP is limited to Pakhtunkhwa Province.
·His father was kidnapped and held for ransom in 2004 for approximately A$30,000 which was paid. The Tribunal does not challenge this statement.
·In the years from 2004 until 2016 he or his father were the subject of threats and attempted intimidation. by he believed the Taliban because of their activist ANP activities.
Evidence, Analysis and Conclusions
Pakistan is a large, diverse country with extremes of living standards in the cities and rural areas alike. It is not difficult to draw specialisesd or exact conclusions or recommendations from a pattern of behaviour or events over time or in a particular geographic area no matter how large. It is difficult, however, to draw conclusions that have generalised application from localised, sectionalised or specialised events or occurrences. Hence in this review application simply because there may have been sporadic or isolated examples of terrorist behaviour in particular years in a particular locale or particular province it does not automatically follow those examples are the norm. In fact they may be the opposite or now regarded as an aberration or anachronism because of pushback by local actors who object to the indiscriminate use of violence.
It is clear from the above CI that the TTP has re-organised its internal structures, imposed a significant degree of centralised control over its activists, retains a significant presence in Khyber Pakhtunkhwa (formerly the North-West Frontier Province) and post the break-down of peace talks with the Pakistani Government has re-invigorated it’s on the ground activities including the use of violence, extortion, localised attacks and ongoing threats. These activities have occurred mainly in the Swat Valley area of Khyber Pakhtunkhwa Province with the clear purpose of taking territorial control of the tribal belt adjacent to Afghanistan some considerable distance from the Charsadda District. There has been some limited number of attacks on police officers and police stations in areas of Charsadda District remote from [Village 1]. There is “no reports” of terrorist attacks or politically motivated attacks on low level members and activists of opposition political parties or their family members since January 2022 either specifically in [Village 1], Charsadda District or in Charsadda District more generally. There is “no reports” of terrorist attacks or politically motivated attacks retired public servants or supporters of the Awami National Party (ANP) since January 2020 either specifically in [Village 1], Charsadda District or in Charsadda District more generally. There was only 1 incident of a terrorism related incident in [Village 1] in the period 2017 to 2023. The number of terrorism related incidents in the much larger Charsadda District declined strongly over time starting from a very low base so as to be almost non-existent. Whole of Country terrorism related incidents in Pakistan generally declined over time from 2017 with an up kick in 2022/2023 due to the breakdown of Government Taliban peace talks and a consequent call to arms by the Taliban. The number of Khyber Pakhtunkhwa Provinces without any terrorism related incidents remained considerable at around 14 showing no spread of TTP activity into new Districts of KP.

The Tribunal explained to the applicant the role of CI, the role of DFAT CI on Pakistan and other authoritative CI sources inclusive of sources within Pakistan who publish their findings for online access. After summarising CI as outlined above the Tribunal read to the applicant paragraph 30 above and asked him to comment.
The applicant advised the Tribunal his family in [Village 1] still feared the Taliban and were fearful of its likely future violent activities. Although the family in [Village 1] had not been the subject of any attacks since 2015 he feared the Taliban attacks would resume in the future. His father had already taken precautions by contacting the police and gaining authority to hire a security guard following what they believed to be a threat in early 2023. He still believed he would be attacked and killed if he returned to his home village notwithstanding the almost complete lack of TTP or Taliban activity in his village and the District of Charsadda for many years. Notwithstanding their lack of activity on the ground in [Village 1] and the wider Charsadda District he believed they still had a presence and would activate this presence against his family because of their continued ANP support. He was unable to explain the almost total lack of anti-family activity by the Taliban from 2015 until the present time. He was unable to explain the lack of anti ANP activity against his family since 2015. He believed his family would be harmed again by the Taliban in the future because of their continued ANP membership and associated activities.
The Tribunal has considered the applicant’s evidence in the context of the large amount of directly relevant CI which was provided in summary form during the hearing. The applicant has been unable to offer any coherent or plausible explanation as to why his family in [Village 1] have been able to go bout their business without interference, harm, threats or violence because of their ongoing ANP activity. The Tribunal was unable to explain how and why the Taliban or TTP would revive its violent operations in [Village 1] or the wider Charsadda District when it is clear they have not been active for almost a decade in this locale and have made it clear they wish to concentrate their activities in the Swat Valley area and closer to the Afghanistan border.
Repetition of fears as to possible future harm does not make that harm any more likely. Repetition of fears as to possible future violence does not make that violence any more likely. Repetition of fear of violence or attacks because of ANP membership and associated activity does not make that future violence more likely when the Taliban or TTP have not been active in the local area, have not organised any attacks in the local area have not expanded their activities into nearby areas and have publicly stated they will concentrate their activities in the Swat Valley for the foreseeable future.
The Tribunal has not ignored the past examples of threats to the applicant or his family in the decades prior to 2016. There is no evidence before the Tribunal to suggest the finding of the delegate that the applicant’s father was kidnapped and ransomed in 2004 is incorrect. In evidence the applicant made it clear his family was wealthy with numerous income sources. It is of some consequence the applicant’s father and family continued their ANP membership and activities until the present time and until at least March 2023 did not seek the protection of police or a security firm. The applicant provided little detail as to why his father had sought authority from the police to hire a security guard. There is little evidence of any untoward TTP or Taliban activity against the applicant’s family until this date. The applicant did not provide a statement of explanation from his father, younger brother, other family members, local police or the relevant security firm that might address the causative facts leading up to this development. A number of pictures of the applicant’s younger brother in the company of armed police is not an adequate explanation.
The Tribunal gives significant weight to the material outlined in paragraph 30 above.
It is not clear to the Tribunal why the applicant might consider himself of interest to a terrorist group. His role in the youth wing of the ANP whilst at university and post university whilst employed as a [Occupation 1] has been minimal. He has not and did not hold elected, appointed or executive office in either the youth wing of the ANP or the larger ANP organisation itself. He has never received wages or held formal position in the ANP. His activities appear to have been limited to local campaign organising and membership activities. He explained he attended party meetings, attended election campaign meetings, campaigned on the ground and generally assisted his father. He never held senior office in the ANP. He never represented the ANP in a provincial or national assembly. He has not been engaged in any ANP activity in Australia. He has not engaged in any ANP activity in Pakistan since 2016. The Tribunal is of the view his ANP activities on his own or in assisting his father were little more than that expected of a rank and file political party member.
The Tribunal gives little weight to the applicant’s pre-2016 ANP membership and activity in Pakistan as a likely causative feature of future Taliban activity against himself or his family in [Village 1] or in the wider Charsadda District. The Tribunal is unable to conclude the return of the applicant to his hometown sometime in the new future would be of interest to the Taliban if they still exist or ever existed in his home village or nearby areas.
The applicant advise the Tribunal his wife and family would not like to go to Pakistan because of stories as to the Taliban and they would be treated as outsiders in the [Village 1]. There might be some local social disapproval as the applicant has married a Catholic woman of [a specified] ethnicity. Local disapproval or local dislike does not amount to persecution and is hardly grounds to fear harm. There is no evidence before the Tribunal that the applicant’s family would be other than welcome in his father’s house.
Considering the applicant’s father is a man of wealth, authority and local distinction through his role in the ANP the Tribunal is unable to give much weight to these particular concerns of the applicant.
The Tribunal does not suggest that the Taliban no longer exist, is not engaged in terrorist activities, do not engage in violence against local opposition figures and do not target local dignitaries for murder or intimidation. The detailed CI referred to above in this decision record show the Taliban is still a live and active force. However as outlined in paragraph 23 the Taliban has re-organised itself, defined and limited its purpose, is concentrating its activities in areas adjacent to the Afghanistan border and now generally eschews wild card terrorist activities because it has learned from the past the indiscrete use of violence for political or religious purpose is resisted and the subject of significant push back by local actors who hate the fact their loved one are killed for no apparent reason.
In this context the CI and evidence is clear. There is virtually zero likelihood activist ANP families in and around [Village 1] or the wider Charsadda District have anything to fear from Taliban activity because since at least 2015 there has been almost absolute peace in [Village 1] and an almost total absence of recorded terrorist incidents in the wider Charsadda District.
There is of, course, the option that the Taliban could reactivate or re-energise its activities in Charsadda District. This appears unlikely for the following reasons. Charsadda District is a considerable distance from the North-West Frontier Province, Swat Valley and closer areas of local Taliban presence or control. The Taliban in their own official strategic statements as to purpose and direction have made it clear their current critical objective is the achievement of territorially controlling the tribal belt adjacent to Afghanistan. This area is not [Village 1]. It is not Charsadda District.
The Tribunal notes the CI outlined above states that recent Taliban attacks have been against police officers or police stations. This is consistent with the stated purpose of the Taliban in its official documentation.
The Tribunal notes the many CI excerpts quoted above that outline the strategic decision of the Taliban to concentrate its future activities in the border areas adjacent to Afghanistan, is concentrating its terrorist work against police and police officers, now eschews local violence against local actors inclusive of members of secular political parties like the ANP and at best has minimal presence in the entire District of Charsadda. The Tribunal notes the DFAT CI comment that “…DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP.” The Tribunal notes the much more recent statement in CTC Sentinel set out above that it “…became clear in the negotiations with the government in 2022 that the group has limited its immediate objective to territorially controlling the tribal belt adjacent to Afghanistan.”[52]
[52] See paragraph 24 above.
In these circumstances the Tribunal gives significant weight to the CTC Sentinel statement quoted at the end of paragraph 46 above.
The applicant’s wife is a non-practising Catholic. She did not give evidence to the Tribunal. The Tribunal accepts she may experience some social discomfort if she should relocate with her husband to [Village 1].
The Tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.
The Tribunal finds there is little chance that he will be harmed for any of the reasons he has claimed either on an individual basis or in aggregation. The Tribunal does not accept that there is a real chance he would be persecuted for any of the reasons outlined in s 5J(1)(a) of the Migration Act. It follows that the Tribunal is not satisfied that there are grounds the applicant being removed from Australia to Pakistan, there is a real chance the applicant will be persecuted.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). Having concluded that the applicant does not meet the refugee criteria, the Tribunal now turns to consider the alternative complementary protection criteria.
Complementary Protection s 36(2)(aa) of the Migration Act
The Tribunal now turns to consideration of CP. The wording of s 36(2)(aa) is different to that in s 36(2)(a) of the Migration Act. S 36(2)(aa) is not limited to the 5 core criteria of race, religion, nationality, membership of a particular social group or political opinion.
S 36(2)(aa) of the Migration Act refers to the fact 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.
Each review application is a standalone matter. In each review application what is required will depend on the particular facts and the reasoning of the decision-maker. In assessing the risk of harm the Tribunal is required to have regard to “substantial grounds for believing” that as a “necessary and foreseeable consequence” of the non-citizen being removed from Australia there is a “real risk” that the non-citizen will face significant harm.
In this review application the applicant has departed his home country, established continuing residence in Australia, is settled in this country and has a wife and family. The applicant made it quite clear on a number of occasions he does not wish to return to Pakistan and wishes to remain in Australia. He was emphatic he would face harm from the Taliban if her returned to Pakistan because of his and his families’ pro ANP activism.
The Tribunal is of the view [Village 1] is a place largely remote from terrorist activity. The Tribunal is of the view the District of Charsadda is an area largely devoid of terrorist activity. There is insufficient evidence to conclude the Taliban has an on the ground presence or capacity to engage in terrorist activity in any part of the District of Charsadda. There is insufficient evidence before the Tribunal to establish the Taliban has any desire, purpose or capacity to engage in terrorist type activities against members of the ANP in the District of Charsadda.
In reviewing all of the information outlined, summarised and discussed above the Tribunal is unable to conclude there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan there is a real risk the applicant will suffer significant harm.
CONCLUDING PARAGRAPHS
The Tribunal has given careful and detailed consideration to the applicant’s claims and the evidence provided in his written statements, oral evidence interview commentary and CI The Tribunal is not satisfied that the applicant genuinely fears persecution in Pakistan for the reasons claimed, or that his claimed fear of harm is credible.
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.
Mark Bishop
Senior Member

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

[2023] AATA 3359

20 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Standing