1805333 (Refugee)

[2023] AATA 1317

1805333 (Refugee) [2023] AATA 1317 (6 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sanmati VERMA (MARN: 1276020)

CASE NUMBER:  1805333

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Justin Meyer

DATE:6 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 6 January 2023 at 3:58pm

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – Sunni Muslim – Pashtun ethnicity – membership of the following ‘particular social groups’ – Current/former NGO workers – VDC members in Swat Valley – Secular/liberal residents of Swat Valley – Returnees from Western countries to Swat Valley – pro-military and anti-Taliban political opinion –– fears harm from Taliban – an influential and well-known person of the society supporting the work of NGOs – disability – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZATV v Minister for Immigration and Citizenship [2007] HCA 40

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 27 March 2017. The delegate refused to grant the visa on the basis that the applicant’s claims for fear of harm were not credible or well-founded and he would not face a real chance of persecution or significant harm now or in the reasonably foreseeable future.

3. The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity

13. The applicant’s identity is established as a [age]-year-old male, as evidenced by a Pakistani passport, which before the Department and the Tribunal confirming identity and nationality.

14. The applicant, who claimed to be a citizen of Pakistan, applied for the visa on 27 March  2017 and the delegate refused to grant the visa on 16 February 2018.

    Mental health

15. Having noted the applicant’s claims of mental trauma over years, The Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information.

    Claims and evidence

16. In his application to the department, the applicant claimed as follows:

    ·The applicant is Pashtun and a Sunni Muslim from [Village 1], Swat District, Pakistan. He is married with [children].

    ·He worked in the Non-Governmental Organisation (NGO) sector for over 25 years, in [an area], was a member of the Village Defence Committee (VDC) and a [manager] of a [workplace].

    ·He fears harm from Taliban and claims his life is in danger because he worked in the NGO sector and [a specified area].

    ·The Taliban kidnap, torture and kill NGO employees, VDC members and educators. Taliban consider working for NGOs as working against Islam and the employees as agents of Western countries.

    ·He was threatened, kidnapped and beaten by Taliban in their “torture cell” and claims he had stroke whilst in their custody, which paralysed the right side of his body.

    ·He claims he cannot live in any other part of Pakistan because the Taliban have a network and because of his health problems.

    ·He has already attempted to settle in Karachi but his relative with whom they were staying was killed by Taliban.

    ·He started his professional career in 1989 and began working for various NGOs including the [Organisation 1] and [ORGANISATION 2] who had various projects funded by US Aid and Oxfam.

    ·In 1996 the youth of his village ([Village 1]) formed a volunteer organisation   called [ORGANISATION 3]. He claims he was elected president. He claims the [ORGANISATION 3] promoted female education and helped oppressed women obtain legal assistance. He claims [name deleted], joint secretary of this organisation joined the Tehreek-e-Taliban Pakistan or TTP in 2008 and set fire to the main office after seizing their assets

    ·In 2006 he joined the Community Development Council (CDC) and was appointed as Assistant Project Manager in [District 1] district. In September 2006 he was buying groceries at the market of [Village 1] when a group of armed people hiding their faces came to him and warned him to immediately quit his job at the NGO. They also warned him to stop sending his daughters to school. He claims his family informed him that a group of Taliban inquire about him from time to time.

    ·In April 2007 he received a phone call from the Taliban. The caller warned him to quit the NGO job otherwise he would be killed. It was noted that he would not be warned again and that they would behead him.

    ·In November 2007 he joined [ORGANISATION 2] and in mid-2008 the Taliban distributed a list of wanted people. The list included his name and the names of his colleagues from the organisation.

    ·During August to September 2008, Taliban abducted and killed several people from their village and organisation. The applicant claims he was on the hit list due to his role as an NGO worker, social activist, and president of the [ORGANISATION 3], an influential and well-known person of the society supporting the work of NGOs. He claims the Taliban seized his agricultural land producing wheat and rice crops and a factory [which] was his main source of income.

    ·In November 2008 he was stopped at a Taliban check post in [Village 2]. The Taliban tied his hands and covered his eyes with a black cloth. They took him to their custody cell. They accused him to be an infidel, an agent of the government and beat him. After one hour security forces fired shells on the check point of the Taliban and the Taliban fled. They left the prisoners behind at the compound and the applicant managed to escape.

    ·In 2009, the Taliban had extended their activities to neighbouring districts. He claims their informant gave them details of people involved with NGOs. His details were included. He claims during this period he frequently changed his location and lived in different parts of the Swat valley.

    ·On 30 April 2009 he was informed that the Taliban had destroyed the office of a nearby [NGO]. Subsequently, their office was shifted to Islamabad.

    ·He moved his family to Peshawar where he registered with UNHCR as an IDP and shifted to Haji camp Peshawar.

    ·He joined the VDC and claims the president and another VDC member were killed by Taliban in April 2010. He claims he was again threatened by Taliban over the phone and told to hand himself over. He claims he reported the matter to the police, yet the police could not help him.

    ·Following this incident his employer transferred him to Kohistan. He claims in early October 2012, he received another call from the Taliban and they demanded money. He claims he changed his mobile number.

    ·In November 2012 on his way back to Kohistan, unknown persons stopped, pointed a gun at him and ordered him to sit in their car. He claims they placed a cloth on his nose and he lost consciousness. When he regained consciousness, he found himself in a dark room in their custody. They asked him to ask his family members to pay them 2,000,000. He claims he was beaten and tortured and lost consciousness. He woke up in hospital paralysed. He claims his neighbours had found him in the fields. He claims he partially recovered but the stroke paralysed his body. He was not able to continue his employment and was dependent on others for survival. He joined a rehabilitation centre for stroke treatment and shifted to Karachi with his family for safety and treatment in early 2013.

    ·In Karachi they were living in his relatives [Mr A] ’s apartment who was killed by Taliban. The family subsequently returned to Swat.

    ·In mid-2015 the local Imam advised him that the Taliban commander had called him and advised him and others that their death is imminent. Following this incident, he limited his activities and kept a low profile.

    ·He claims in August 2016, he received another phone call from the Taliban stating that he had disobeyed their orders and asked him to pay them RS 5 million or they will kill him inhumanely. During this period, his son [completed] his degree at an Australian University.

    ·He claims it is not safe to move to Baluchistan, Sindh or Punjab. He claims Punjabis consider Punjab’s terrorists.

    ·He fears the Taliban will punish him for not fulfilling their demands and will reimpose “mulct” and will harm him and his family if he returns to Pakistan.

    ·[The applicant has provided numerous documents including documents regarding his past employment with NGOs.]

17. In the applicant’s written submission to the Tribunal of 5 May 2022 he made the following points:

    ·     [Mr B] is a [age]-year old citizen of Pakistan. He suffers from significant physical and cognitive impairments, due to a stroke he suffered while detained in 2012. [Mr B] fears harm in his home region of Swat Valley as a community elder, the founder of various western-funded non-government organisations and an active member of the ‘Village Defence Committee.’

    ·     He is a Sunni Muslim of Pashtun ethnicity. He was born and raised in the village of [Village 1] in the Swat Valley, where he spent his life before travelling to Australia in 2016. [Mr B] was educated to a very high degree by local standards in Swat; he was awarded a [degree] by [a university] in 2000. At the time of his graduation, [Mr B] recalls that only ‘[small number of] people’ had attained a similar level of education. Despite his obvious accomplishment, [Mr B] was committed to applying his skills to the benefit of his community.

    ·     [Mr B] commenced his career in the NGO sector in 1989 with the [a] Project – evidence of his employment was provided to the delegate. In 1996, [Mr B] and friends in [Village 1] founded the ([ORGANISATION 3]) in order to promote the education and advancement of young people in the region who were left out of education or vocational studies. [Mr B] was the first director of [ORGANISATION 3] – as evidence, he provided copies of the annual reports of the organisation which he authored to the delegate. Three of the organisation’s other founding members - [names deleted] – have been granted asylum in Australia.

    ·     The [ORGANISATION 3] engaged in three key development projects [details deleted]. The first two projects were centrally concerned with women’s welfare. [Mr B] describes his commitment to that issue as follows:

    I was very concerned by women’s situation in our area. I grew up seeing the difficulties that my mother faced because of her lack of education. I was also the father of [girls] and I wanted them to be able to stand on their own feet, and never to be controlled by their husbands. I encouraged all of my girls to pursue their education as much as possible; several of my daughters have completed degrees.

    ·     After completing his [degree], [Mr B] was employed in various other NGO roles. From 2002 to 2005, he worked with the [Organisation 1]. From 2007 onwards, he worked with an organisation by the name of [ORGANISATION 2], funded by USAID. He held various roles with the organisastion. [Mr B] provided a letter of reference from [ORGANISATION 2] to the delegate as evidence of his service.

    ·     From 2006 onwards, [Mr B] was the target of persistent threats from local militants, on account of his NGO service. The Tehreek-e-Nafaz-e-Shariat-e-Mohammadi (or TNSM) founded by cleric Maulana Fazalullah later merged with the Tehreek-e-Taliban Pakistan to form an effective fighting force throughout Swat. The Taliban specifically targeted NGO workers, considering them to be the conduits for western influence in Swat, by way of foreign funding. In September 2006, [Mr B] was approached in the bazaar at [Village 1] and warned by Fazalullah’s followers against work for foreign-funded NGOs.

    ·     Again in April 2007, [Mr B] received a call to his mobile phone from an unknown caller warning that he would ‘face the consequences’ for his work.

    ·     In mid-2008, [Mr B]’s family members discovered banners posted by the Taliban in [Village 1], describing him and other members of the [ORGANISATION 3] as ‘wanted.’ Around the same time, several other activists against the Taliban had been killed – including [names].

    ·     In November 2008, while [Mr B] was travelling by bus to [District 1] district, the vehicle was boarded by Taliban cadres. They searched the bus and asked him to step off. As soon as he alighted, a hood was placed over his head and he was taken to a nearby enclosure, where he was beaten severely. The episode ended only when mortars began to fall in a military operation nearby. Hearing the shelling, his captors fled, leaving [Mr B] hooded and tied. One he was confident they had gone, he left the enclosure and found his way to a nearby village.

    ·     In May 2009, [Mr B] and his family were displaced from Swat during a massive operation by the Pakistan Army. [Mr B] provided the delegate with identification he received as an internally displaced person. After several months, the Army declared the opearation to be a success and encouraged the resettlement of the displaced population. [Mr B] and his family returned to [Village 1] in late 2009.

    ·     However, despite assurances from the army, their officers remained stationed in Swat after the operation. In order to provide for the ongoing defence of the village, the army encouraged the formation of armed ‘village defence committees’ (or VDCs) comprised of trusted elders. [Mr B] was invited to join the committee, which he gladly did.

    ·     Soon after its formation, the Taliban began to target members of the committee. The founding member of the committee, [was] shot and killed in April 2010.

    ·     In July 2010, [Mr B] received another anonymous call, warning him against further collaboration with the army. Trusting that the state authorities had regained control of the region, [Mr B] made a report of the event, but to his dismay no action followed.

    ·     On [date] June 2012, a local man and one of the donors of the [ORGANISATION 3],  [was] shot and killed. Days later, on [date] June 2012, [a named person], was shot and killed.

    ·     After that incident, [Mr B] insisted that his work post him to a remote corner of the region, away from [Village 1]. He was posted to Kohistan; a district adjoining Swat. He tried to limit his return trips to [Village 1] to keep a low profile.

    ·     In September 2012, [Mr B] returned briefly, for a matter of days, to celebrate Eid. During that brief period, he received another call – the caller stated that he knew [Mr B] had returned to the village and demanded a random of PKR 20 Lakh. [Mr B] disposed of the SIM card and left for Kohistan the following day.

    ·     Again, in November 2012, [Mr B] was forced to return to [Village 1] to attend to his wife who was unwell. As a woman, she was not able to seek medical treatment alone; it was therefore imperative for [Mr B] to return.

    ·     As he was attempting to return to Kohistan by bus, [Mr B] was captured by unknown assailants at the [Village 1] bus stop. He was smothered with a cloth and lost consciousness. When he regained consciousness he was in a darkened room alone. He was told to produce the ransom. [Mr B] tried to explain that he could not produce the money right away as his wife had been sick, but that if he was allowed to return home he would attempt to collect it.

    ·     With that, the captors set upon [Mr B], beating him with a stick. In the middle of the beating, they covered his mouth and nose and poured cold water on his face, as if to drown him. At some stage in the episode, [Mr B], who had long suffered from serious hypertension, lost consciousness.

    ·     When he opened his eyes, [Mr B] was in hospital. He suspects that his limp body was thrown in the fields by captors once he had lost consciousness. He was discovered by a local man, [who] conveyed him to [a] Hospital. [Mr B] has obtained a report from the doctor who treated him on his admission – we enclose that report herewith. It was discovered that [Mr B] had suffered a life-threatening stroke, brought on by the beating and caused by his underlying hypertension. He was held in hospital 6 days. After intensive physiotherapy, he recovered some of his capacity for movement and speech.

    ·     Despite his sudden physical frailty, [Mr B] felt that [Village 1] was not safe for his family. He attempted to relocate them to Karachi, but quickly found that to be unviable, given the number of former Taliban cadre who had also been displaced to the city. Eventually, they were forced to return to [Village 1].

    ·     In 2015, while in [Village 1] receiving treatment for his condition, [Mr B] learned through the Imam of his mosque that the Taliban had demanded their unpaid ransom. Because of his physical state, [Mr B] did not keep a personal phone, which is why he assumes the threat was communicated through the Imam.

    ·     By that time, [Mr B] had relocated his sons out of Swat, for their own safety. His son [had] travelled to Australia on a Student visa. He had sent his other sons to study [remotely]. His youngest son, just [age] years old, stayed with his wife.

    ·     Finally, at the insistence of his son, [Mr B] travelled to Australia on a Visitor visa in 2017. He has not returned to Pakistan since that time. Since his departure, attacks against anti-Taliban activists have continued apace.

    ·     Membership of ‘Particular Social Group/s’

    There is significant overlap between the harm feared by the applicants on account of their membership of various ‘particular social groups’ in Swat, and based on their (actual and imputed) political opinion. The applicants fear harm on account of their membership of the following ‘particular social groups’: 1. Current/former NGO workers; 2. VDC members in Swat Valley; 3. Village elders in Swat; 4. Secular/liberal residents of Swat Valley; 5. Returnees from Western countries to Swat Valley.

    The first two groups are defined by a shared occupation or vocation. The third group, comprised of elders in Swat, emerges from the particular composition of Swati society – the influence of the Pashtunwali tribal code means that local matters are resolved by elders, rather than the formal judicial system. Elders acquired further prominence in Swat, when they were enlisted by the Army specifically to lead anti-Taliban efforts. The final two groups are defined by a shared, imputed political opinion – being pro-western and anti-Taliban. We invite the Tribunal to find that [Mr B] is a member of the particular social groups described above

    Actual/Imputed Political Opinion [Mr B] further fears harm on account of the political opinions which he holds or might be imputed to him. [Mr B]’s professional history discloses a commitment to secularism and neoliberal principles of economic development; he worked in several foreign-funded NGOs on projects intended to promote education and literacy amongst the people of Swat. He holds, and would be attributed, a secular and pro-Western political opinion. [Mr B]’s service with the VDC is evidence of his pro-military and anti-Taliban political opinion. He believes fundamentally in the proper authority of the state in Pakistan. It is trite to note that the Tribunal must assess the risk of harm to [Mr B] in the reasonably foreseeable future – not only at the point of his return to Pakistan. To ascertain this, the Tribunal must make findings about the conduct of [Mr B] in the reasonably foreseeable future. We invite the Tribunal to find that, if he returned to Swat Valley, it is highly likely that [Mr B] would resume activities with the VDC and continue to consult with foreign NGOs. To be clear, [Mr B]’s role with the VDC was not limited to conducting night patrols – it extended to providing critical intelligence to the army regarding the local landscape and population and promoting cooperation with the army to others in the local community

    The membership of the VDC is strictly limited to elders previously vetted by the VDC; it is not possible to expand the VDC’s membership. Despite his physical condition, [Mr B] remains intellectually alert and active. He would continue in his role as an extremely prominent and well-respect member of the local community. Even if he did not resume his service with the VDC and various NGOs, the suspicion that he might do so would be sufficient, in our submission, to attract the attention of the local TTP and expose [Mr B] to harm. The Tribunal must assess the harm he might face in the reasonably foreseeable future, considering these matters.

    Country information regarding TTP in Swat: The most recent report of the Department of Foreign Affairs and Trade, issued in January 2022, paints a stark picture of the security environment in Pakistan’s border regions. Relevantly, the report states as follows: [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 repledged 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. As to the risk faced by NGO workers and human rights activists, the report states:

    [3.112] Human rights activists face threats of violence and harassment from the military, government and militant groups. In September 2020, a group of independent UN human rights experts called on the Pakistani government to end the secret detention of Idris Khattak, an activist and former consultant for Human Rights Watch and Amnesty International who had investigated disappearances in Pakistan’s Federally Administered Tribal Areas. According to Amnesty International, activists, journalists and human rights defenders have been forcibly disappeared by authorities in Balochistan. Among them are Hasaan and Hizbullah Qambrani, who were picked up in February 2020 after participating in protests against enforced disappearances in Quetta. The pair were freed in May 2021 after the Baloch Missing Person’s Camp met with Prime Minister Imran Khan to plead for their release.

    [3.113] DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, the former FATA and Balochistan). NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups. Harassment and monitoring by security forces can occur anywhere in the country Finally, as to the risk faced by VDC members, the report continues:

    [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.

    [3.84] Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP)... The regrouping of the TTP, and the stark, upward trend in security incidents was also observed by EASO in its most recent report, issued in December 2021. As to the reunification of the TTP, the report makes the following observations:17 PIPS 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.’ (emphasis added) The report noted the following fatal security incidents in the region over the past year, marking an alarming increase on the previous reporting period:

    According to PIPS in 155 incidents of violence of various types, 253 people were killed and 258 people wounded in the province in 2020. PIPS mentioned that the majority of the casualties in the province were security force personnel in 2020. In 2020, in KP province CRSS recorded in total 505 casualties

    According to CRSS, most casualties in 2020 in the tribal districts were counted among security and government officials. This was followed by militants and civilians. In KP, civilians were most affected. Security personnel reported the lowest number of deaths. In the first half of 2021, CRSS counted in total 217 casualties. The total number of casualties in the province decreased slightly in the second quarter of 2021 (102 casualties) compared to the first quarter in 2021 (115 casualties). This is mainly due to a decrease in fatalities in the second quarter of 2021 (74 fatalities) compared to the first quarter of 2021 (102 fatalities). The figures cited by EASO follow upon a consistent upward trend in security incidents over the past two years across the tribal regions. According to the South Asian Terrorism Portal (SATP), 4010 civilians have died in terrorism-related violence between 2014 and mid January 2021.

    SATP bases its statistics from media reports, so this number may understate the actual number of casualties. While overall there was a decline in the number of reported terrorist attacks in 2019, the number increased again in 202020 indicating that Pakistan nevertheless continues to face security threats from insurgent, separatist and sectarian militant groups. In his statement, [Mr B] numbers the following attacks on VDC members and elders in the vicinity of [Village 1] – we note that each of these attacks is independently verified in media reports: On 13 December 2019, Firoz Shah Advocate, an ex-candidate for the National Assembly of the Pakistan Muslim League, was killed in front of his house.21 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.23 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.  The most recent statistics concerning security incidents in KPK are contained in report of the Centre for Research in Security Studies for quarter 1, 2022. That report noted the staggering rise in violence in the regions bordering Pakistan, including KPK: During the first quarter of 2022, some 344 people lost their lives and 405 suffered injuries because of violence and counter violence incidents. About 90 % of these victims of violence were from two regions of the country: Balochistan and Khyber Pakhtunkhwa’s border regions.

    Since last year, violence has been on the rise. The first quarter of 2022 saw a 68% rise in violence in general. The KP province witnessed 173% surge in violence, followed by Balochistan (88%) and Sindh (5%). The report notes a steady rise in sectarian incidents across early 2022, after the government of Pakistan failed to negotiate and extended ceasefire with the TTP: After a slight decline in January, violent incidents recording a 104% rise in February and 153% in March (Table 03). This sign of a growing trend that can be attributed to the TTP’s new tactics and alliances with some Baloch separatist groups. In December last year, the TTP had refused to extend the ceasefire it had agreed with the government and weeks thereafter saw an unusual surge in violence. Interior Minister Sheikh Rashid had also admitted that the Tehreek-e-Taliban Pakistan (TTP) had escalated its attacks in the country.

    Overall, country information indicates that the security situation in Pakistan is complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. The information before the Tribunal confirms that targeted violence faced by perceived opponents of the Taliban and anti-Taliban activists, who have acquired a local profile in Swat. In our submission, this would include [Mr B] on his return to [Village 1]. 5.3. State Protection The increasing degree of sectarian violence in KPK is evidence in itself of the inadequacy of state protection in the region. In relation to the general efficacy of state apparatus in Pakistan, DFAT notes:

    [5.2]

    Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families. The report also confirms the links between the Pakistani military and intelligence forces and the TTP, long suspected by residents of the tribal regions: [5.5] There are widespread, credible reports of human rights abuses by the Pakistani security services, including the military and intelligence services. The ISI has been accused of extrajudicial killings, enforced disappearances and torture. The ISI is also alleged to have high-level links with militant groups, including the Taliban, and to tolerate their presence in Pakistan as a hedge against India and Afghanistan. It is self-evident that [Mr B] cannot avail himself of effective state protection against the harm he fears from the TTP

    [5.4.1]

    Internal relocation – for the purposes of s 36(2)(a) For the purposes of protection claims made under s 36(2)(a) of the Act, we note that s 5J(1) imports the following limitations on the definition of a ‘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. In relation to the requirement under s 5J(1)(c), that the real chance of persecution faced by the applicant ‘related to all areas of the receiving country,’ policy provides the following guidance:

    Considerations of the s5J(1)(c) assessment In assessing s5J(1)(c), the following should be considered by decision makers:

    • is there a safe area anywhere within the receiving country – that is, is there an area where there is not a real chance of persecution for a s5J(1)(a) reason in a particular area or areas of the country?

    and

    • is there safe and lawful access for the applicant in reaching the safe area, taking into account the applicant’s particular circumstances?29 In other words, policy continues to contemplate the type of ‘two stage’ assessment of the question of relocation under s 5J, as was previously mandated by the Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40.

    In accordance with previous case law and authority on the internal relocation principle, the first ‘limb’ of the assessment remains: is there an area in the applicant’s home country which is free from the real chance of persecution? However, the second ‘limb’ of the assessment is now transformed to consider: is safe and lawful for the applicant to access that posited area of safety?

    In light of the Taliban coup in Afghanistan, and the subsequent reunification of Taliban factions in Pakistan, it is doubtful whether any region of the country remains entirely safe from sectarian violence. The Taliban is a pan-national organisation, drawing its membership from various allied factions across Afghanistan, Pakistan and neighbouring countries, including Uzbekistan. In June 2018, the TTP confirmed that TTP leader Mullah Fazlullah was killed by a US drone strike in the province of Kunar in Afghanistan. The TTP appointed Mufti Noor Wali Mehsud as the new ‘emir’ or TTP leader. According to analyst and managing editor of the Long War Journal Bill Roggio, the leadership of the TTP hereby returned to the Mehsud tribe in its home base of North and South Waziristan.31 Mufti Hazratullah was named deputy emir.

    In September 2018, the TTP released a redefined code of conduct to outline internal procedures, tactics and efforts to seek unification of the different factions. An expert on terrorism in Pakistan, Farhan Zahid, stated in April 2019 that the challenges for Mufti Noor Wali Mehsud are to reunite various TTP factions and to establish his authority over them while re-establishing TTP’s organisational infrastructure in Pakistan. Different sources indicated that the TTP was going through a resurgence and becoming operationally active again. A breakaway group of the TTP was also active in South Waziristan where they were organised in one of the peace committees. The most recent DFAT report noted the culmination of the TTP’s efforts over the previous years, as follows:

    [2.34]

    Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

    [2.35]

    Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-eTaliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. While insurgent violence has been most acute in the border regions, the central districts of Punjab and Sindh have not been spared. The Pakistan Institute for Peace Studies, in its 2021 annual report, noted that:

    In all, eight terrorist attacks took place in Sindh province including five in Karachi and 3 in interior Sindh (one attack each in Khairpur, Naushahro Firoze, and Qambar-Shahdadkot. These attacks killed a total of 13 people and injured 35 others. Six of the reported attacks from Sindh in 2021 were perpetrated by Bloch and Sindhi nationalist insurgents – mainly BLA, BLF and Sindhudesh Revolutionary Army (SRA) – which claimed two lives and wounded 21 people. In Karachi, the banned Baloch group BLF carried out two attacks against Chinese nationals while BLA perpetrated one attack targeting Rangers. The Sindhi insurgent group SRA carried out three attacks including one in each of three districts of interior Sindh cited earlier targeting security forces, a railways track, and political leaders. Apart from nationalist insurgents, some unknown militant group as well as a Shia sectarian group, Sipah-e-Muhammad Pakistan (SMP), also carried out one attack each in Karachi; while the attack by the former targeted a mini truck carrying family members of a Jamaate Islami leader hailing from Swat, the SMP militants shot and injured a renowned Sunni scholar Mufti Saleemullah Khan, belonging to the Binnori Town seminary. As many as five (5) terrorist attacks took place in Punjab which claimed 14 lives and injured 51 people. Two of these attacks were perpetrated by the TTP in Rawalpindi, which killed two and injured five policemen. Some unknown militants carried out an IED blast near the residence of Jamaat-ud-Dawa (JuD) chief Hafiz Saeed in Lahore killing three people. Meanwhile, six people were murdered while five others sustained injuries by the firing of a religiously inspired extremist individual in DG Khan. In a sectarian-related terrorist attack reported from Bahawalnagar, two persons were killed, and 24 others injured in a grenade attack on an Ashura procession. Two terrorist attacks were recorded in Islamabad in which the banned TTP killed three policemen and injured two others. The above information confirms militant capabilities outside of Swat, including in the more populous regions of Punjab and Sindh.

    Internal Relocation – For the Purposes of s 36(2)(aa) If the Tribunal is unable to find s 5J(1)(c) satisfied in [Mr B]’s circumstances, it must then consider whether he is owed complementary protection obligations under s 36(2)(aa) of the Act. We note that there are, at present, no analogous limitations on the definition of ‘real chance of significant harm’ for the purposes of s 36(2)(aa) as exist under s 5J in respect of s 36(2)(a). Thus, the longstanding authorities regarding the internal relocation principle remain applicable in respect of the s 36(2)(aa) assessment.

    The leading authority of SZATV v Minister for Immigration and Citizenship [2007] HCA 40 mandates a two-stage assessment in determining whether the internal relocation alternative is available in an applicant’s particular circumstances. The Tribunal must first assess whether in fact there is any area of [Mr B]’s home country that is free from real risk of harm that he fears. If the Tribunal finds that [Mr B] would not face a real risk of harm in a particular region, it must then determine whether it is ‘reasonable in the sense of practicable’ for him to relocate to that region. The ‘reasonableness’ assessment is ‘fact[1]intensive’: there must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location. In this case, the Tribunal must confront [Mr B]’s unique vulnerabilities and frailty. As the Tribunal will observe at the hearing, [Mr B] is unable to walk unaided. He suffers from a significant cognitive and speech impairment. He has not been able to engage in gainful work for nearly a decade because of his condition. In addition to these matters, [Mr B] receives intensive psychological treatment for post traumatic stress disorder. His treating psychologist, [describes] his debilitating symptoms, which inhibit him from such simple tasks as taking a walk alone: [Mr B]  is experiencing severe symptoms of depression that includes insomnia, frequent headaches, low appetite, poor concentration and attention, extremely poor memory, sadness and loss of interest in everything. [Mr B]  presented with poor memory. He frequently mixed-up appointments. He reported feeling very helpless and worthless as his confidence levels is [sic] very poor for a long time. His symptoms of PTSD include frequent nightmares of fighting, bloodshed and killing besides prominent paranoid ideas, [fear] of loneliness and waking up…screaming with sleep terrors. He reported nightmares of people following him. He also reported getting anxious after hearing any sudden noises because of wind or other environmental factors. He had not been able to go out for walks in the street because of his PTSD symptoms. he had been extremely hypervigilant about everyone passing by, especially people with beard gave him extreme fright.

    As to his future treatment needs, the report continues:

    In my professional opinion, based on his overall situation in the past, considering [Mr B]’s current psychological functioning and mild improvement of his symptoms. He would need ongoing therapy for about two years for full treatment and consolidation of the treatment outcomes. His mental health would be reviewed every six months to tailor his treatment to his needs. [Mr B] could not possibly access specialised mental health services on return to Pakistan, where the mental health doctor-to-patient ratio is one of the worst in the world. The Tribunal may safely assume that his mental health would suffer as a consequence.

    The UK Home Office’s ‘Country Policy and Information Note’ on healthcare in Pakistan, published in September 2020, documents the dearth of specialised mental health services in the country:

    According to the WHO Mental Health Atlas 2017 profile for Pakistan, there were 11 psychiatric hospitals in the country, 800 psychiatric units in general hospitals and 578 residential care facilities, all offering inpatient care. As per the WHO’s report, there are 3,729 outpatient mental health facilities in the country, of which 3 were for children and adolescents only. There were 624 community-based (non-hospital) psychiatric outpatient facilities. 4.12.2 A report published in 2020 on mental healthcare in Pakistan noted: ‘Mental healthcare is provided mostly by public health sector although there have been some recent developments in the private sector as well. Psychiatric care offered by different sectors generally highlights the influence of the British allopathic system on psychiatric care. […] There are around 400 qualified psychiatrists working in Pakistan. Most of the psychiatrists are working in urban cities although the posts of district psychiatrists have also been created throughout the country. Psychiatrists, in general, are working single handed, although major centers in the country are developing multidisciplinary services.’

    In February 2020, The News International reported on mental health and suicide: ‘Psychological problems in Pakistan are widespread. According to one estimate, around 50 million people in Pakistan suffer from mental disorders. A range of psychiatric disorders have been reported, such as depression, substance and alcohol misuse, schizophrenia, bipolar disorder, and posttraumatic stress disorder. According to one estimate, 36 percent of Pakistanis suffer from anxiety and depression, which is often caused by strained family and friend relations, the feeling of not fitting in the society, the unstable economic and political conditions of the country giving rise to unemployment and poverty.’

    Asia Times, an international news outlet that reports on Asia, noted in February 2020, ‘It is worth noting that 18 years after the enactment of the Mental Health Ordinance 2001, only three Pakistani provinces have mental health rules in place…’

    The 2020 report on mental healthcare in Pakistan noted that mental health problems were taboo and people were reluctant to reveal a mental illness. The report also stated: ‘In Pakistani culture, it is commonplace to approach spiritual or traditional healers in cases of physical or mental illnesses. Faith healing is the traditional way of treatment for mental ailments in this culture, as people usually perceive mental illness to be the result of supernatural influences. Use of faith healers is irrespective of socio-economic factors as it usually depends on the person’s belief toward spiritual healing. Faith healers are a major source of care for people with mental health problems in Pakistan, particularly for women and those with little education.’

    Similarly, The News International noted in February 2020 ‘[S]eeking help for psychological disorders is problematic in Pakistan. Mental illness is often associated with supernatural forces such as witchcraft, possession, and black magic. Families often hide mental illness to prevent the patient from adverse stereotyping.’ If his psychological conditions were to worsen on return to Pakistan, [Mr B] could not reasonably be expected to find gainful work or support himself. As it is, despite the time employment. As well as the psychological impact of returning to another region in Pakistan, [Mr B] would likely face discrimination and suspicion, if he was to seek out employment or education. DFAT observes that:

    Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan. It is patently unreasonable for a man of [Mr B]’s age and infirmity to confront ‘slurs and ethnic stereotypes’ in his day to day life. Internal relocation in these circumstances is not a viable or reasonable prospect.

    The applicants are outside their country of nationality. [Mr B] arrived in Australia on [date] December 2016; he has been in the country since that time.

1. The applicant’s evidence in the hearing was in these terms:

   ·The applicant said that he came to Australia in 2016. His whole family is in Pakistan. He came on a visitor visa initially and has remained lawful at all times.

   ·He is a Pashto-speaking Sunni Muslim and he practices his faith. He has a [degree]. He comes from Swat.

   ·He worked for [NGOs].

   ·He described his beliefs and ideals in working for NGOs. The area in which it was living was backward and he could not get a government job. There was no facility to work in government services. He wanted to help others.

   ·He began his work in 1989 and in 1995 he “had a problem”. In 2006 he faced his first threat.

   ·The problem in 1995 was that there was an effort to impose or enforce sharia law in the area. They started looking at people in NGOs.

   ·In 2006 he received a warning. Followers of the cleric Maulana Fazalullah told him to leave and stop working. The people saying this had guns and were wearing masks.

   ·They went up to him at the bazaar. They knew him because people in the village had shown them. He did not comply with their demand and refused and told them they were against development

   ·In April 2007 he received a call while in [Village 1], telling him not to work anymore and that he will be harmed. He left his job as a result.

   ·In November 2007 he obtained a new job. He said that he had to earn money and he needed to survive. They did not harm him.

   ·In 2008 he was told that his name was on a ‘hitlist’. Four people had already been killed by the offenders.

   ·In November 2008, while the was travelling by bus to [District 1]. I asked if this was a kidnapping or ransom attempt. He said it might have been for money. His hands were tied. He was taken to a building. The security situation was not good at the time. This group was attacked by army rockets and they eventually fled.

   ·Once the situation had improved he return in December 2009 after having been away for eight months.

   ·Life was comparatively stable because of army protection in Swat until he was kidnapped in 2012. He received a telephone call from a Taliban figure demanded 20 Lakhs. He put them off.

   ·Later he was waiting for a bus and armed people got out of a car. One person pointed a weapon at him. Another put something in his mouth. I asked how the people were dressed and he said they were in normal clothing that with masks on them. There were three people. They did not speak to him.

   ·The man tied him up and put in a room. Demands were made of him. Two people came in to tell him that he was warned a few times and now his family would be tortured. He said that he was unwell and his wife is unwell. He asked that they give him time. He said they poured water in his mouth. He eventually gained consciousness in hospital. Friends assisted him.

   ·I asked if his doctor had told him that this violence had led to his stroke. The applicant said that he had high blood pressure, and this had led to his stroke. He told his oppressors that he had high blood pressure.

   ·He was beaten and cold water was thrown at him. He became unconscious. Something was put on to his mouth. All of this contributed to the injuries and conditions he has.

   ·He was on high blood pressure medication at this time.

   ·He attempted to relocate to Karachi, because the stroke disabled him. His previous home area had no proper medical treatment and he feared for his safety.

   ·[Mr A] is a family member and from the same tribe and village. He is a village defence committee member. He was killed later in Karachi.

   ·The Tribunal discussed the Swat Valley assessment in the quoted in the delegate’s decision of 16 February 2018, per the below:

   In November 2007 the Pakistan military intensified its operations in Swat and thousands flee, however on 29 January 2009 the militants were reported to have seized control of almost all of Swat.

   In April 2009, the Pakistani army undertook military offensive operations and drove the Swat Taliban out in late 2009. The police force numbers in Swat tripled from 7,000 in 2008 to more than 21,000. Swat Police is also now better equipped and more than 7,000 policemen have received specialised training.

   Despite the military gains in Swat and the presence of more than 20,000 troops, the TTP has continued to carry out attacks against security forces and pro-government people. The TTP has been reported to have carried out targeted killings of civilians suspected of co-operating with the military, with one journalist in Mingora claiming one or two [committee members] are killed by the Taliban every month according to a 2013 source. However, whilst acknowledging that the Taliban could carry out attacks in the region, the Director of the Pakistan Institute of Peace Studies, Muhammad Rana claims the TTP would not be able to re-take the Swat valley even if the military was to leave because the military has “broken the back” of the TTP in Swat and local population has rejected the TTP.

   Various media sources reported on the improved security situation in Swat, citing the resumption of skiing resorts and the emancipation of individual rights. In an article entitled “Swat Valley back on its way to becoming ‘the Switzerland of Pakistan’”, dated 21 February 2017, and published by ‘The Tribune’, it was reported that improved security in recent years has allowed ski tourism to re-emerge. There was an observation that that Swat will prosper, as security was very good. While militants have lost a lot of territory, the Taliban, and other, including Islamic State, still carry out periodic large-scale bombings.

   In another article published in the Washington Post on 9 May 2015, entitled “The Taliban once ruled Pakistan’s Swat Valley. Now peace has returned”, it was reported that after the demise of the Taliban at the hands of the Pakistan military, the “residents are releasing years of stress by flocking to new shopping and entertainment outlets whose existence would have been unthinkable when the Taliban was executing men for shaving or women for dancing”.

   According to a media article from “France24” and published on 10 February 2017, the Pakistan Army continue to control the region however the Taliban now have a new strategy of targeting and killing influential people of Swat. Despite such fears, a majority of 2.5 million of the region’s displaced people have returned to their homeland but find the military expanding its footprint.

2. The applicant agreed that since he departed Pakistan people had been returning to the Swat Valley.

3. I went on to discuss an article in Foreign Policy of February 19, 2020 describing the Swat Valley as Pakistan’s success story.[1]

   “These days in Mingora, Malala’s hometown in Pakistan’s Swat Valley, few, if any, signs remain of the city’s grisly past. The former militant stronghold is nestled at the base of the Hindu Kush mountains, equidistant from Pakistan’s capital city of Islamabad and the eastern border of Afghanistan. Endless hotels and restaurants line its main arteries—a new building is under construction every few blocks. Although international tourism is still rare, local travelers flock to what was once one of the most dangerous spots on the planet.

   The Swat Valley is, in many ways, a success story in a country where success stories are rare.”

   [1] ‘Pakistan’s Success Story How Swat Valley went from basket case to on the mend’, Fatima Bhojani, Foreign Policy,  February 19, 2020 >

   The applicant said that he had articles that he could access that said that up until  September 2022 the situation has not improved.

4. I asked if people had still asked about him in Swat. He said that they did. They know the applicant is in Australia.

5. On 30 April 2020 five Taliban were captured and arrested. Some friends were targeted and killed as well.  A village defence committee head was killed along with his children. A police constable was also killed.

6. Friends were targeted in the Swat area, in villages. After the fall of the previous Afghani government things became worse in Pakistan. The applicant went on to say that even between 2016 and 2020 things were not peaceful either. There were still target killings.

7. His family home in the village has only one female there – his wife. However his wife moves around and goes to her brother. Of two of his children one is [in] [a country], and the other son is in another town.

8. He is still following current affairs and politics. I asked if he attends meetings or is visible in other ways such as commenting online. His written skills stops him from commenting.

9. He has mobility issues. He came to the hearing in a wheelchair. He has rehabilitation sessions and went to psychologist to deal with mental issues.    

10. He has a diagnosis of PTSD.  He has depression and anxiety. Detailed medical opinions were submitted to the Tribunal.

11. He still is frightened of people doing things behind him and people with long hair. He also saw his family doctor. They recommended a neurologist opinion which he has done.  He takes tablets for blood pressure. It became worse in 2021. His son in Australia looks after him as his carer and other family help. He agreed that his physical condition is such that he would struggle to board a flight of any kind. Psychologist help is of assistance and makes him feel better but once it has passed he is back to ‘square one’.

12. He would resume with the village defence committee is he returned to Pakistan his representative submitted.

    Post hearing submission

13. The applicant’s representative made the following submission, post-hearing on 25 July 2022

    We write to provide the Tribunal with further reports concerning the deteriorating security situation in Pakistan’s tribal region. We wish also to briefly address a further aspect of [Mr B]’s claims which was not explicitly addressed at the hearing, though arises plainly from the evidence before the Tribunal; namely, the discrimination that [Mr B] would face on account of his disability, particularly if he were to relocate outside of Swat. 1. Security Situation in Swat The Tribunal must approach the country information in this case with considerable care. Viewed as a whole, recent country reports depict Pakistan as a country in a state of political turmoil and upheaval, riven with internal political conflict regarding the approach to take towards militancy and its relationship with its immediate neighbours. Reports suggest that the country as a whole, and the tribal regions in particular, have been destabilised by events in Afghanistan, as various militant factions align themselves with the Afghan Taliban. While noting the relative ‘improvement’ in the security situation in Khyber Pakthunkhwa in the years leading to 2021, the most recent report issued by the Department of Foreign Affairs and Trade concludes that:

    3.85 DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups. At page 6, the 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 [Mr B]’s claims; DFAT is aware of sufficient incidents of sectarian targeting of peace committee 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 real and not fanciful risk. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293–295).

    Rather, the DFAT report suggests obvious and immediate danger to peace committee members throughout Swat. 

    In the recent case of BSU20, Greenwood J criticised the Immigration Assessment Authority for its failure to consider a similar passage of the previous DFAT report, concluding as follows:2 Whilst it is true that the IAA had regard to aspects of the document of 20 November 2019 and country information, it did not specifically take into account in its reasoning an important assessment made as at 20 February 2019 that “Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith” [emphasis added]. It is difficult to see how the IAA could reason to a conclusion of no real chance of the appellant suffering any harm from the Taliban or other anti-Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if the appellant were to return to Kurrum Agency, without addressing two things. First, the express submissions put to the contrary to the IAA by the appellant as described in these submissions. Second, the assessment as at 20 February 2019 recited in bold above. The Tribunal’s task is to determine whether [Mr B] faces a real chance of serious harm in the reasonably foreseeable future in Swat, not only at the precise moment of his return. On any reasonable view, the security situation in Pakistan’s border regions, and indeed throughout the country, is volatile and liable to deteriorate further as the Taliban consolidates power in Afghanistan and internal pressures grow towards rapprochement with militant groups. The coalescence of the Tehreek-e-Taliban (TTP) poses an immediate and growing risk to the tribal regions. A report to the United Nations Security Council dated 25 May 2022 states:3 82. TTP constitutes the largest component of foreign terrorist fighters in Afghanistan, with their number estimated to be several thousand. Other groups include the Eastern Turkistan Islamic Movement (ETIM) , Islamic Movement of Uzbekistan, Jaish-i-Mohammed (JiM) (QDe.019), Jamaat Ansarullah (not listed) and Lashkar-e-Tayyiba (LeT), with each numbering in the few hundreds. 83. TTP has arguably benefitted the most of all the foreign extremist groups in Afghanistan from the Taliban takeover. It has conducted numerous attacks and operations in Pakistan. TTP also continues to exist as a stand-alone force, rather than feeling pressure to merge its fighters into Afghan Taliban units, as is the prospect for most foreign terrorist fighters. The group is estimated to consist of 3,000 to 4,000 armed fighters located along the east and south-east Afghanistan[1]Pakistan border areas. 84. TTP is led by Mufti Noor Wali Mehsud and supported by three deputies, Mawlawi Faqir Mohammad, Mufti Hazrat Deroji (alias Amjad) and Omar Khalid Khurasani (alias Abdul Wali Rakhib). The TTP leadership council sits above two regional committees (northern and southern) that cover seven separate zones of operation. The main body of TTP also includes 17 former splinter groups that rejoined the main TTP body in the period from 2020 to 2021, including Jamaat ul-Ahrar (JuA). The Pakistan Institute for Peace Studies (PIPS) has recently released its quarterly report for April to June 2022 entitled ‘Perspectives from Pakistan on Afghan Peace and Reconciliation’. The report highlights the impact of the seizure of power by the Taliban in Afghanistan on the power of the TTP and other militant groups, including Islamic State, in Pakistan, particularly in KPK and Balochistan. The report explains the current instability and uncertainty due to ongoing peace talks between the TTP and Pakistani government, which it predicts will not lead to a lasting ceasefire and may indeed strengthen other militant forces in Pakistan: 5 What’s on the line Talks with TTP: The Afghan Taliban took the role of mediating peace talks between the TTP and the government of Pakistan and successfully achieved ceasefire agreement for an indefinite period. The group is reportedly demanding the reversal of ex-FATA’s merger in Khyber Pakhtunkhwa, withdrawal of all military presence from tribal region, enforcement of Sharia law in the Malakand region of KP, and release of over 100 commanders and fighters, among other things. Some observers consulted for this report asserted that Pakistan understood the Taliban’s limitation in influencing or acting against the TTP beyond a certain point, hence it strategized to use the “possible available” help from them to deal with the TTP on negotiations table. However, not all are convinced with the decision and the approach adopted for that. For one, towards the end of May 2022, annual report of the UNSC-led 1988 Taliban sanctions committee monitoring team warned that “The group [TTP] is focused on a long-term campaign against the Pakistani state”, which implies “that ceasefire deals have a limited chance of success”. Instead of influencing the TTP against anti-Pakistan violence or acting against them which most believe will never be a case, the Afghan Taliban have so far done two things to address the concerns of Pakistan. First, as 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. At present, apparently the TTP is observing the ceasefire due to its talks with tribal jirgas from Khyber Pakhtunkhwa, which have the support of Pakistani security forces. 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. [emphasis added] The report to the United Nations Security Council, referred to in the PIPS report, states: 6 31. According to one Member State, control of the Ministry of Interior and the Ministry of Refugees and Repatriations gives the Haqqani Network further points of contact with the Tehrik-e Taliban Pakistan (TTP) (QDe.132). Sirajuddin Haqqani has reportedly been relied upon more than anyone else in the de facto administration to act as an intermediary between TTP and Pakistan. Haqqani mediations have not led to a sustainable ceasefire, but are a further indication of Sirajuddin’s central role within the Taliban as a mediator and figure of authority among rank-and-file TTP and other mainly Pashtun groups in eastern Afghanistan. [emphasis added]

    PIPS reports that the number of terrorist attacks by the TTP and other militant groups has vastly increased in frequency in 2022, with KPK remaining the most affected region: 7 The number of terrorist attacks undertaken by the TTP and other insurgent groups such as the Islamic State Khorasan (IS-K) and notable Baloch groups have vastly increased in frequency this year. While sources claim discrepancies between the actual number of attacks conducted by the TTP and their repercussions, Pak Institute for Peace Studies’ digital database on security incidents in Pakistan suggested that there were approximately 46 attacks conducted by the TTP from January 1 to June 25, 2022, in which 79 individuals were killed while a further 45 were injured. In April alone, the TTP and its associated groups carried out 19 attacks in KP, but the figure declined notably after the announcement of ceasefire in June. PIPS also reports that Islamic State is gaining strength in Pakistan and is responsible for a significant number of attacks on civilians, almost all of which have occurred in KPK: Nonetheless, the US withdrawal has allowed the Islamic State’s Khorasan chapter (IS-K) to recover, regroup and strengthen its membership and position in Afghanistan and Pakistan. As per the latest figures provided by the UN early this year, the number of IS-K fighters in Afghanistan has now “risen from earlier 12 estimates of 2,200 to approaching 4,000, following the release of several thousand prisoners.” The extent of the threat the IS-K group could pose to countries in the region can be assessed from the diverse origin of its fighters in Afghanistan who come from the Middle East, Central Asia, Pakistan, India, Kashmir and China, etc; about half of the IS-K fighters in Afghanistan are foreigners. In 2022 so far (till June 20), the IS-K has already perpetrated 13 attacks in Pakistan (12 in KP and one in Balochistan), which have claimed 81 lives. The worst of these IS-K attacks was the suicide bombing at a Shia mosque in Peshawar, which alone killed 65 people. In another suicide attack claimed by the group, at least six FC officials were martyred, and 19 others were injured in Sibi (Balochistan). In 2021, the group had perpetrated a total of eight terrorist attacks including seven (7) in Khyber Pakhtunkhwa and one in Balochistan, claiming in all 21 lives. The South Asia Terrorism Portal records that there have been 295 terrorism-related fatalities in KPK between 1 January 2022 and 5 July 2022, 92 of which have been civilian deaths.9 When compared with the total number of terrorism-related fatalities across Pakistan in the same period, being 527 total deaths and 181 civilian deaths, it is clear that there is a significant concentration of terrorist violence in KPK.10 2. Disability Discrimination in Pakistan As well as the risk faced by [Mr B] on account of his profile, his previous occupation and involvement with the VDC, the Tribunal must cumulatively consider the harm he would face as a person with a disability.

    Stigma, discrimination and exclusion of persons with disabilities is pervasive throughout Pakistan. In 2019, Islamic Relief published a report on the situation of persons with disabilities in Pakistan’s tribal regions, observing as follows:

    The research also showed that 70 per cent of respondents agreed that PWD [persons with disabilities] are the subject of jokes or unacceptable or negative comments. Sixty-eight per cent agreed that PWD are more likely to be the victims of bullying. Cultural norms in the FATA mean that care and safety-related issues within families, such as gender-based violence, are not reported, especially about girls and women with disabilities. Reporting such problems is against the family code of conduct. In relation to access to services, only four per cent of respondents agreed that health services are fully accessible to PWD and only 12 per cent agreed that education services are fully accessible to PWD. These attitudes are not limited to KPK but are pervasive throughout Pakistan. In an extensive 2014 report, the British Council observed as follows:

    The grave lack of sensitivity when dealing with persons with disability often means that they are denied access to even the most basic services… … Even in Pakistan’s largest cities, there is a dominant impulse to see persons with disability as deserving of charity rather than equality (this idea is further entrenched because persons with disabilities are often seen working as street beggars). When politicians wish to make a gesture of support for persons with disability, it typically involves the distribution of free wheelchairs or walking canes in front of television cameras. This, in turn, creates a hierarchy of disabilities, where the most visible physical disabilities receive most of what limited attention is available. Persons with hearing, visual or speech impairments get some attention, and persons with mental disorders receive almost no attention at all. In regard to the social stigma associated with disability, the same report continues:

    Stigma is a major reason why barriers in society remain, and changing the language used to describe disability plays a big part in removing those barriers. In Pakistan, persons with disabilities are still referred to in derogatory terms such as “crippled” and “mentally retarded”. There are also learning institutions using these terms in their names. Globally, the nomenclature around persons with disabilities has shifted from “disabled person” or “handicapped person” to “person with disability”. Dr Maryam Mallick, technical adviser on disabilities and rehabilitation, WHO Pakistan, explains that using the word “person” acknowledges that he or she is first a human being and then a person who has an impairment. The term “persons with disabilities” is also used in the CRPD. However, in rural areas, and even in cities, people still use extremely derogatory terms. The government is also using archaic terms such as “disabled persons” and “special persons”. In some societies, the negative words used to describe persons with disabilities have been the driving force reducing the stigma. Professor Stein of Harvard University recounts his experience in drafting a disability law in Vietnam. “The community there said: ‘We know we are not going to get all these rights for ages and ages, but we’re tired of being called this horrible word. We’d like a word that has dignity in it and that will mean more to us on a daily basis’.” In Pakistan, persons with disability experience similar derogatory words, but with no credible mechanism to voice their concerns, they only suffer in silence. One Peshawar resident interviewed for this study could not even utter the words he had been called. “As a child, the names were very painful. And as you grow older, things change, but not because the perception has changed, but maybe they are scared of you. These days, kids on the streets call me the one-legged man, and others call me ‘good for nothing’.” An article published in the Journal of the Pakistan Medical Association in December 2020 noted that Pakistan still lacks a uniform national definition of disability. There is no national disability registry to accurately determine the total burden of PWD in the society. The present data on the epidemiology and patterns of disability in Pakistan is limited and mostly unreliable.

    Detailed statistical data collection has never been a part of any of the national population census in the past. According to a 2014 estimate there might be up to 27 million people in Pakistan living with some form of disability. The PWD face mobility barriers and sociocultural discrimination in the community. They are still not part of the mainstream society and have difficulty accessing healthcare services. It is difficult for them to get even an official certificate of disability or vote for their candidate in elections. According to one report "PWDs continue to be victims of charitable model, sympathy model, medical model, the social model, the economic model, and the minority group model in a number of policies and laws designed and implemented so far." It is self-evident from the above reports that [Mr B] would face profound stigma, social exclusion and vilification as a person with a cognitive and locomotor disability. On this separate basis, we submit that [Mr B] satisfies the criteria for the grant of a Protection visa under s 36(2) of the Migration Act 1958.

1. These sources were quoted:

   oBSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 at [47].

   oPIPS, ‘Perspectives from Pakistan on Afghan Peace and Reconciliation’, April to June 2022, pp 5-6

   oSouth Asia Terrorism Portal, Datasheet – Khyber Pakhtunkhwa – Yearly Fatalities, accessed 7 July 2022 at . 10 South Asia Terrorism Portal, Datasheet – Pakistan – Yearly Fatalities

   oIslamic Relief, Stigma and discrimination faced by people with disabilities returning to the Federally Administered Tribal Areas in Pakistan, available 12 British Council, ‘Moving from the margins Mainstreaming persons with disabilities in Pakistan,’ available >

   From consistent written and oral evidence, the Tribunal concludes that the applicant’s biographical details and life narrative are as he has stated. He is [age] years old and is Pashtun, Sunni Muslim Pakistani man. 

2. He has supplied ample evidence of his decades-long work in village defence and NGOs.

3. Although I have not quoted from it directly, the applicant provided an 11-page statement detailing all of the events in question in considerable detail. The Tribunal took case studies of this account and discussed them with the applicant. He answered consistently with his written account and this goes positively towards his credibility.

4. I have no reason to find that he has embellished or invented any of his account. The Tribunal respectfully departs from the conclusion of the delegate that the applicant was not involved in village defence after his 2012 stroke. I find that the applicant was in danger after being harmed in the way he described.  

5. His evidence was plausible that he joined the VDC and that the president and another VDC member were killed by Taliban in April 2010. From unvarnished oral evidence I accept his claims he was threatened by Taliban over the phone and told to hand himself over. I accept he reported the matter to the police, yet the police could not help him.

6. I also find from clear oral evidence that his employer transferred him to Kohistan. I am satisfied that he received another call from the Taliban and they demanded money.

7. His account is accepted that in November 2012 on his way back to Kohistan, unknown persons stopped, pointed a gun at him and ordered him to sit in their car and made him lose consciousness.

8. I accept he was given a demanded for PKR 2,000,000 and that beaten and tortured. He gave a plausible account of being in hospital, paralysed. I accept that his high blood pressure made him susceptible to strokes and that the attack brought one on.

9. He was not able to continue his employment and was dependent on others for survival. He joined a rehabilitation centre for stroke treatment and shifted to Karachi with his family for safety and treatment in early 2013.

10. He gave a believable account of being continually followed up in his village and I accept that his family avoid contact with those who might pose risk and are dispersed.

11. The applicant has a variety of medical and psychological illnesses and conditions. There are medical opinions and letters on file from medical professionals to this effect.  Much of it is caused or linked to the violence and threats he has suffered. His anxiety, depression and PTSD make him especially vulnerable to threats upon his return. I do not accept that with the passage of time militants such as the Pakistan Taliban might overlook or forget the decades of service and activism he has engaged in. This does not seem a reasonable proposition to the Tribunal’s mind. The poor state of the hospital and medical system in Pakistan would worsen his situation , per DFAT’s latest report ([2.10] “The overall standard and availability of healthcare in Pakistan is low. The Lancet’s Healthcare Access and Quality Index ranks Pakistan’s healthcare system 154 out of 189 countries”).[2]

    [2] DFAT Country Information Report Pakistan, 25 January 2022

12. Bearing in mind the most country information from DFAT’s Pakistan country report,[3]:

    [3.113] DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, DFAT Country Information Report – PAKISTAN - January 2022 35 the former FATA and Balochistan). NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups. Harassment and monitoring by security forces can occur anywhere in the country

    the Tribunal concludes that the applicant faces a moderate risk of societal discrimination and violence. This is a significant consideration pointing to the prospect that there is a real chance of persecution for the applicant.

    [3] DFAT Country Information Report Pakistan, 25 January 2022

13. While the security situation in Swat has improved overall from the darkest periods of the early 2000s, the Tribunal is not satisfied that it has improved to such an extent that it negates the real chance of harm for this applicant. I accept that there have been ongoing queries about the applicant in Swat, and also that his health and mental state make him additionally vulnerable in a way that a more able-bodied and able-minded people might not be.  The rise of the Taliban government in Afghanistan has had a negative impact on peace prospects in Pakistan and the improvement in Swat may well have been tempered by this. I note that in DFAT’s most recent report at [2.40] TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021.

14. I accept that the applicant has a real chance of serious harm from Taliban and/or other militants because he worked in the NGO sector and [a specified area].

15. The Tribunal considers the applicant’s main risk to be as an NGO activist in Pakistan.

16. There is a causal connection between the harm feared and the refugee ground. Terrorist and criminal groups have a motivation to harm him seriously.

17. The Tribunal is satisfied the applicant has a well-founded fear of being persecuted for reasons of his membership of a particular social group. He is one of an identifiable group of persons with a social presence in a country, he is set apart from other members of that society, and the group he is a member of is united by a common characteristic, attribute, or activity.

18. The harm he fears is not solely attributable to this refugee reason, but it is sufficiently attributable to this ground.

19. The Tribunal finds that the applicant is still perceived as an NGO activist.

20. He departed Pakistan some six years ago. The Tribunal finds this is a fresh enough presence to warrant concern.

21. The Tribunal notes the following DFAT information[4] about the prominent group Tehreek-e Taliban Pakistan (TTP) along with terrorist action and violence:

    [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.

    [4] DFAT Country Information Report Pakistan, 25 January 2022

22. I have little reason to believe that the position will change greatly in the foreseeable future for the applicant.

23. The level of state protection is low for the applicant, per DFAT’s report [5]:

    [5.1]

    Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).

    5.2

    Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.

    [5] DFAT Country Information Report Pakistan, 25 January 2022

24. I find that there would be tenuous state protection for him. As terrorist and criminal organisations are broadly across the country, I cannot foresee that relocation for him is a feasible option. His attempt at relocating to Karachi was not feasible as he continued to face telephone demands and he lost his Karachi-based relative [Mr A] in an attack. Relocation would be even less a prospect due to his severely impacted health.

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

    DECISION

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

    Justin Meyer
    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.

    …