1806435 (Refugee)

[2023] AATA 4670

1806435 (Refugee) [2023] AATA 4670 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  1806435

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Joseph Lindsay

DATE:1 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the [first named applicant] satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicant, [Ms D], satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 1 December 2023 at 12:35pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – former VDC member of Swat Valley – known activist against the Taliban – state protection – internal relocation – mental health condition – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 1 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who are citizens of Pakistan, applied for the visas on 4 August 2017. The applicants appeared before the Tribunal on 25 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] ([the applicant]’s brother), [Mr B] ([the applicant]’s brother) and [Mr C] ([the applicant]’s father). [The applicant]’s wife, [Ms D], was present in the hearing.

3. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The protection claims were initially put forward in the protection visa application with the following statutory declaration from [the applicant]. Due to the detailed and comprehensive nature of the statement, it is provided verbatim below:

    1. I wish to make this statement in support of my application for a Protection (Subclass 866) visa. I wish to note that my father, [Mr C], and by brother, [Mr A], have both applied for and been granted asylum in Australia, because of our family's problems. I will provide their statements with my application, so that the decision maker can have a complete sense of my history.

    Background

    2. I am now [age] years of age. I was born on [date] in the village of [Village 1], Swat Valley. I lived in [Village 1] for my whole life, up until I arrived in Australia [in] October 2009. I came to Australia to get away from the war and bloodshed in my home country. I had hoped that I could get on my own feet here, by studying and applying for a Skilled visa. But I cannot go back under any circumstances.

    3. I did my year 12 in [year] from [College 1], in [Swat] followed by a six month Diploma in [Discipline 1] from [Education Provider 1 in] Swat. In Australia, I have completed a Diploma of [Discipline 2], Certificate III, IV and Diploma of [Discipline 3].

    4. I married my wife, [Ms D], in March 2013. All of my immediate family is here with me in Australia. This includes my parents [and] my brothers [Mr B], [Mr A], and [Mr E]. I have one sister she is married and living in [Country 1]. I am glad to say that my family are all safe now from the threat that we faced in Swat.

    5. I returned to Pakistan on two short occasions since I came to Australia, for reasons I am going to explain later in the statement.

    6. My family and I are Sunni Muslims. I would say that we were religious and devoted to our religion, but we were not fanatical like other people who started to come in Swat Valley in recent times. We would go to mosque for prayers and fast during Ramadan, but we would not go out and tell other people how to live or practice their religion.

    7. I believe it was 2006 a cleric by the name of Fazalullah started his own FM radio station by which he uses to reach to people. At the beginning, he was a respected person. He would plead to the people of swat valley to assist him in ending social injustice and inequality. He was doing all this under the banner of religious slogan and Islamic teachings, he was not really making any demands or announcing any targets. He was speaking to people in a language they understood about their religion and their cultural identity and so people came to like him. I could see around me that many people, especially young men, had become Fazalullah's followers and would dress in a traditional way with robes and long beards. However, as time went by, he became violent and through his teachings, he was brainwashing people, telling people that it was against the spirit of our religion to listen to music or watch television. He used to purport to tell people what was and what was not in our religion, and he started to target girl's education.

    8. It was 2007 when we started to have problems with Fazalullah's followers. My sister was a teenager, in year [level], and my father was accompanying her from school on local transport - her school was around 2 kilometres from the house. My father was committed to all my siblings getting an education so that they could be independent. On the way back from school, my father was stopped by men dressed in Taliban garb - I don't think they were from [Village 1] because my father said he did not recognise them. They were not armed as such but two of them were carrying sticks. They stopped my father and my sister in their tracks. My sister was clearly carrying her school bag and was wearing her uniform. She was not covered head to toe. One of them reached out for my sister's bag and held her by it. Suddenly, one of the men struck my father and began to beat him with a stick. My sister began to shout and cry, but she was thrown on the ground. My father was too afraid for my sister to do anything in response. When they were done beating my father, one of the men said, 'let this be a lesson, to never take girls to school again.'

    9. By the time when all this was happening, I was not there but later as I back home. I heard the story from my father. I was angry but all in vein as I can't do anything by that time Taliban was in full control of the area.

    10. After that, my father encourages my sister to continue with school but by 2008 Fazalullah had made it clear that he and his followers were opposed to girls' education. They had even said that they would target people who facilitated education to girls. My sister was too afraid to start her schooling again after that, and it was very difficult to find someone who was brave enough to teach my sister at home.

    Attack in Early 2008

    11. By 2008, Fazalullah's influence was becoming even more dangerous in [Village 1]. His followers would roam around at prayer times, and if they found someone who was not in the mosque they would beat them as punishment. There were stories that the Fazalullah's followers used to go around to the families of poor farmers and ask them to donate a portion of their crop, saying they were going to donate it to the poor. During Eid it was a tradition to slaughter animals owned by the family and then donate the skins to the poor _however, Fazalullah's followers would come around and collect them instead. There used to be discussions all the time inside our home and behind closed doors about the corruption ofFazalullah's followers. By 2008, most of [Village 1] was under Fazalullah's influence and people who did not follow him were bad Muslims and were socially outcaste.

    12. In early 2008, I remember I got into a conversation at our family shop, in the market of [Village 1]. I had a conversation in the shop with some of the other shopkeepers - the topic had turned to Fazalullah and his followers and I made a comment that they were no good for Swat Valley and were taking the area backwards. And they are deceiving the people by the name of religion. In the meanwhile, no one said anything.

    13. Some days after that conversation, me and my father were tending to our family land when there were a series of gunshots. Me and my father dropped to the ground and tried to crawl away out of sight. Our land is uneven and, so we could not see exactly who was firing shots at us. We were on the side of our land which was bordered by a wall, which is the back of someone's home - the shots were hitting the wall near us, and seemed to be targeted at us, maybe being fired from a distance. We were lucky to manage to get away. From the way the shots were being fired it was clear they were aimed at us. Looking back, it seem clear to me that this event was related as punishment to my comments made against Fazalullah's followers in the days earlier. Because those days no one else can carry guns. We were very scared for our life and left the house. We went to [another] village which is on the other side of the river. We stayed there for two weeks and then I left for Peshawar. I was forced to remain there until the time that I left for Peshawar.

    14. My father thought that it was imperative for me to get out of [Village 1]. I am the oldest son of the family, and in our culture the eldest son is the family heir and carries the responsibility for the whole family. The Taliban would target the eldest sons from the families of their enemies.

    15. My family's problems with the Taliban continued even after I left the home. In early 2009, my family's movements in and out of the home were restricted because of the Taliban. One day in 2009, in the afternoon, my brother [Mr A] had gone to visit his grandfather's house. When he was in the house, some local Talibs knocked the door and bundled him into their car, taking him to their hideout they named '[location].' I found out about this only after it happened, as I wasn't there.

    16. I heard that, my grandfather went to our home to tell my parents what had happened. My mother began to cry, thinking that we had lost [Mr A]. My grandfather said that as an elder, he would go to the Taliban's place and reason with them for [Mr A]'s release. On his first attempt, my grandfather went alone but could not find anyone with authority to say where [Mr A] was.

    17. My grandfather went back on the next day, but even then, he could not find out about [Mr A]'s whereabouts. The day afterwards, finally my father in law and his brother [Mr F] managed to catch the attention of one of the senior Talibs. They pleaded for [Mr A]'s release. Eventually they agreed, but only upon payment of Rs 5,00,000.00 in ransom. On the third day, [Mr A] was released.

    18. By April 2009, the Pakistani Army started to announce that they were commencing a massive military operation in Swat Valley to rid the area of Fazalullah's followers. The army was stationed at [location] which was right next to [Village 1]. The army started to tell to evacuate Swat Valley by May 2009. People who had their own private transportation were able to get out of the region in time, and most of them took their families to safety. However, people without private transport like our family were stuck. As a result, our family along with more than half the local population had to remain in [Village 1].

    19. As I mentioned, the Taliban had control over [Village 1] up to the time of the military operation in 2009. In May 2009, the army first advanced on Kanju and then onwards. There was massive destruction in that area because of the operations. As the army started to surround [Village 1], those who were left in the village began to fear for civilian casualties because of the army's activities. The army did not think to draw any distinction between civilian and Taliban targets, and it was likely that anyone who remained in the area could get caught in the crossfire.

    20. I heard from my father that one morning a man by the name of [Mr G] started a conversation with some of the elders who were in attendance - my father joined in. More than half of the population was left during the military operation in [Village 1]. [Mr G] said that we were about to face a very difficult time if the military entered [Village 1] - there would be nowhere for us to go and lives would be lost. He said that we had to try and negotiate so that the fighting would avoid the civilian areas.

    21. Following these discussions, it was decided that a group of elders remaining would approach the Taliban stationed in [Village 1] and tell them to move on from the area so that the population could escape the military shelling. The group was comprised of my father, [Mr G], [Mr H], [Mr F], [Mr I], [Mr J], [Mr K] and [Mr L], as far as I heard.

    22. There was a Taliban station in our area-they had stationed themselves in someone's property on [specified] Road.

    23. After a lot of discussion and negotiations Taliban reach to an agreement with the local  elders that if the army will petrol the main road and go back so Taliban will not do anything.

    24. After all this conversation with the Taliban my father and the other elders they approach the army which was a bit hard though and told them about the civilians and their negotiation with Taliban.

    25. The army also know that there is a lot of civilians in the area so that's why they also agree that they will pass the main road and go back once they show their high authorities that they had a successful operation. But they also put responsibility on my father and the other elders if anything happened they will be the one responsible.

    26. After coordinating amongst themselves, the army instructed the elders to walk in front of their cavalcade of cars with white flags -perhaps to demonstrate to them that the road was safe for them to travel. Accordingly, the group of elders including my father, [Mr G], and the others that I have mentioned, walked in front of an army cavalcade of jeeps, trucks, and foot patrol soldiers. Sure enough, they were able to clear the main road of [Village 1] without a single shot being fired upon them.

    27. My father said that he and the other elders had thought that the army would just pass through our area and move onto their next target. But after they had crossed through the town, their officers returned to establish dozens of check posts throughout the village. Every three to four minutes' walk, there was another check post. The Taliban dispersed from the area and headed into the surrounding regions which were not yet under army control. As they were escaping, we came to know that the army in fact shot and killed some of their officers.

    Return to [Village 1]

    28. After the military operation, the Army announced that it was possible for people outside Swat to return. I felt obligated to return to see my parents and family, as they had suffered through a terrible time during the military operation, and I was concerned to ensure their safety. The Army had assured everyone that the area was completely rid of the Taliban and that it was completely safe to return.

    29. When I got back I noticed a completely changed environment. Even though the operation the army in the area and our relations with them were good. Because the army had managed to capture [Village 1] with the assistance of the local elders that had approached them, the army would come to those elders often with different requests. My father was called upon as one does to respond to the requests of the Army. As his eldest son, it was my obligation to stand with and accompany him.

    30. The Army used to pass on a message to them to meet at a time at the main check post near to [location]. The main officer we were dealing with was [a named Major]. The army said they would need information, help identifying different locations, monitoring in the local areas for strangers who were not known in the area, gathering intelligence from locals. During the time that I was in [Village 1], I personally helped to identify the homes of former known Taliban cadres, including [named persons]. As a result, the Army invaded those homes to check for weapons and later I learned that the homes were destroyed. I also helped the Army identifying particular fields which they then dug up to find weapons.

    31. Quickly, it became clear that the Army could not carry out their duties alone and they needed the help of the elders. In tum, the duties could not be carried out by the group of elders alone. It was decided that we would break the village into Mohallah based groups, and that elders would nominate other trusted people to assist them in cooperation with the army. In my area, there was my father, [Mr F] and [Mr I] amongst the elders who approached the army. Amongst them, they nominated others to help them in their tasks.

    32. I was granted a Student visa to travel to Australia in October 2009. Though it was very hard for me to leave my family, I flew out of Pakistan [in] October 2009.

    33. Later I heard that the group of elders who were managing the defence activities in different areas decided to give themselves the name of Qaumi Aman Committee, or Local Peace Committee. They had a semi-official role as they were entrusted with tasks in support of the army. The army eventually changed the name to 'Village Defence Committee' or VDC. The army would approach them all the time for various types of assistance and intelligence. For example, I heard they were tasked with rounding up all the people in our Mohalla and registering the weapons owned by the families. This was usual task for my father - as he was the trusted person from our Mohalla, he had been responsible for recording people's details and identification numbers when they rented a property in our area, and passing these details onto the Army.

    Incidents After I Left

    34. My family continued to have very serious problems after I left Pakistan. After I arrived, I used to hear from news, friends, and family members that the situation for Committee members was getting worse by the day as Taliban was targeting the Committee members and their family. As a respected elder who had stood with Bahre-Karam during the military operation, my father was obligated to continue work with the Committee. In my stead, my immediately younger brother, [Mr A], would stand with him. For years, I was deeply worried for the safety of my father and brother, as there were reports all the time of the killing of Committee members. In April 2010, I received the news that Bahr-e-Karam had been killed.

    35. I was anxious to get my father and brother out of Pakistan as soon as I could. I applied for a Visitor visa for my parents and brother, and it was granted in 2011. I managed to convince my brother, [Mr A], to stay in Melbourne but my father insisted on returning home at the end of his visa. The obligations on him were enormous. My father is the sole support for his two brothers, who live in the family home and are both profoundly disabled.

    Return to Pakistan in February 2013

    36. Ultimately, my brother [Mr A] and I were forced to return to Pakistan in February 2013 to tie up my father's affairs and pressure him to return with us to Australia for his own safety. While I was there, my parents took the opportunity to very quickly arrange my marriage. I was married to [Ms D] [in] March 2013.

    37. While I was home, it was incumbent on me to perform night patrols alongside my father. I took over my younger brother's duties. I would have done this a few times, but it was my obligation since I was the elder son of the family.

    38. Soon after I left Pakistan, in July 2013, we received a letter of threat to our home from the Tehreek-e-Taliban Pakistan. The letter was addressed to my father and said that the Tehreek knew of his activities, and neither he nor his family members would be spared. After receiving this letter, we finally convinced my father to leave Pakistan. I returned with my parents and brother accompanying me [in] June 2013.

    39. I had to leave my wife behind when I travelled to Australia. My wife had to move to live with her parents, and shift out of our family home when I came to Australia. I applied many times for a Student visa for my wife to join me, so that I could make sure that she was safe, but all of her applications were refused.

    40. As the months went on and I could not find a solution for her, my wife became more and more upset and unwell. Whenever she would talk to me on the phone, she would cry. She would worry about whether the threats against our family would come back to her. She stopped sleeping at night. She visited a doctor who gave her some sleeping pills and recommended that I visit to relieve her anxiety. I was grieved that I had put my wife in this situation, where she had to live in fear. It was for this reason that I had to make the difficult decision to go back to Pakistan [in] March 2014. I returned in June 2014. During that entire trip, I remained inside the four walls of my wife's family home in Mardan, and did not go to my home village.

    41. The period that I spent in Mardan was one of the hardest times of my life. There were reports all the time about target killings and I could not leave the home. My wife was  almost bedridden with despair when I first came back, and it took a long time for her to stabilise. When she recovered a little, l promised her I would apply again for her to join me as soon as possible, and only then did she agree to let me go, and I left Pakistan for the last time.

    42. After that, my wife's visa application was refused once again. I knew that I had to meet with her to reassure her but the situation in Pakistan was far too dangerous. For that reason, I arranged to meet her in [Country 2]. I have not been back to Pakistan since that trip in 2014.

    43. On the basis of their experiences and the threats out family faced in Swat, my brother and father were granted Protection visas in 2016.

    Why I cannot Return or Relocate Within Pakistan

    44. When I arrived in Australia, my main intention was to make sure that my family were all in Australia and safe, before I applied for Protection myself. I was the first member of my family who came to Australia, and it was my obligation to take care of everybody. That is the reason for the delay in making my Protection visa application.

    45. I cannot return to [Village 1] under any circumstances. Me and my family supported Pakistan army. I show them houses of Taliban which they destroyed. I identified Talibans to the army they captured some and killed some. I did night watches. That's the reasons I believe Taliban will kill me.

    46. My father and brother were active member of the Army-supported Qaumi Aman Committee from 2009 until 2013 when they left Pakistan. And they target every family member of the committee members. If I will go back, I must join my elders and to start helping army again. Our family is a known to the Taliban. And everyone know that I helped to bring my family to Australia.

    47. They are successfully targeting the committee members and their family members who oppose them and helped the Army in binging peace. There are stories every day of the target killings. It is a matter of time before this same can happen to me. I feel so glad that now we all are here safe.

    48. No where is safe in Pakistan as the Taliban are widespread. I can't seek help from Pakistan government as they can't protect themselves.

    49. Because of what happened to us in the past and the violence that I have seen, and my fears for my family, I have long had trouble sleeping properly and concentrating. I have sudden experiences where I feel as though I am in the middle of the fighting. After a long time, I am now finally getting psychological help for my problems.

    50. I experience these symptoms, even though I am safe here in Australia. I am still not normal or stable. I can only imagine what I would be like if I set foot in Pakistan. Every place in that country has violence, bloodshed, and instability. Every day there would remind me of what I have seen in [Village 1]. It is unthinkable.

    51. My entire family, including on my wife's side, were born, and bred in Swat Valley. We have no family, even extended family, in any other place in Pakistan. We would go there as strangers. No one will give me a house or hotel on rent because I am a Pashtun and they think every Pashtun is a terrorist. Whatever happens in Pakistan they always catch a Pashtun and put them in prison. They are clearly discriminating against us.

    52. How could a man of my health difficulties and my psychological condition without family support spend life somewhere else. I can't even think of it.

1. Prior to the hearing, the representative provided a comprehensive submission for the Tribunal’s consideration:

   Due to the time that has passed since those submissions, we provide the following updated country information and an updated report of [Dr Q], in respect of [the first named applicant].

   Further evidence – Updated report of [Dr Q]

   We attach a report of [Dr Q] dated 15 May 2023 in respect of [the first named applicant]. [Dr Q] confirms he has been treating [the first named applicant] since 2017 and that [the first named applicant] has continued attending regular appointments since the previous report (also before the Tribunal) dated August 2021. [Dr Q] confirms his assessment that [the first named applicant] has post-traumatic stress disorder with anxiety disorder and depression.

   [Dr Q] notes that [the first named applicant] has responded positively to the treatment he has received, but he considers that [the first named applicant]’s mental health conditions would worsen, should he return to Pakistan. He highlights the significance that [the first named applicant]’s immediate family are now in Australia and, therefore, he would be without a support system in Pakistan.

   We again reiterate our submission [the first named applicant] and [Ms D] will face severe barriers to access to specialised mental health services on return to Pakistan, where the mental health doctor-to-patient ratio is one of the lowest in the world. We urge the Tribunal to consider that both [the first named applicant] and [Ms D] are highly vulnerable and psychologically infirm. Taking into account the attached report and the recent report regarding [Ms D], along with factors set out in our previous submissions, we submit that relocation is not reasonable in this particular case.

   Country information regarding TTP 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, 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 has been destabilised by events in Afghanistan, as various militant factions align themselves with the Afghan Taliban.

   As recently as 30 July 2023, The New York Times reported on a mass-casualty event in KPK as follows:

   An explosion at a political rally on Sunday in northwest Pakistan killed at least 43 people and wounded 200 more, officials said, the latest sign of the deteriorating security situation in the country, where some militant groups have become more active over the past two years since finding a haven in neighboring Afghanistan under the Taliban administration there. […]

   A Surge in Militancy

   The blast was the latest attack to rattle Pakistan, where militant groups — including the Pakistani Taliban, known as Tehreek-e-Taliban Pakistan, or T.T.P., and ISIS-K — have become more active in recent years. This year, the T.T.P. has carried out several major attacks that have jolted Pakistanis’ already tenuous sense of security. In January, T.T.P. militants attacked a mosque in Peshawar, killing more than 100 people, and one month later they waged an hourslong assault on the police headquarters of Pakistan’s largest city, Karachi.

   The attack on Sunday “is yet another reminder that militancy remains ascendant in Pakistan, and insecurity is likely to rise in the coming months,” said Asfandyar Mir, a senior expert at the United States Institute of Peace.

   The most recent report issued by the Department of Foreign Affairs and Trade (DFAT) issued in January 2022 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 VDC members and their families, such as [the first named applicant], the 2022 DFAT report states:

   [3.84] Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP)…

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

   As to the risk faced by Pashtuns, as is [the first named applicant], the 2022 DFAT report states:

   3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns (see Turis, Bangash).

   “Moderate risk” is defined as referring to instances where “DFAT is aware of sufficient incidents to suggest a pattern of behaviour”. This, in our submission, powerfully corroborates the Applicants’ claims; DFAT is aware of sufficient incidents of sectarian targeting of ANP members to suggest a “pattern of behaviour” by militants. This suggests a level of risk far greater than a “real chance”, which requires a risk that is not remote nor fanciful.3 The DFAT report suggests obvious and immediate danger to ANP members throughout Swat.

   In the recent case of BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642, Greenwood J criticised the Immigration Assessment Authority for its failure to properly engage a similarly worded risk assessment in an earlier DFAT report on Pakistan. His Honour stated at [47] (emphasis in original):

   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 the Applicants face 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, and bearing in mind the country information set out below, the security situation in Pakistan’s border regions – and indeed throughout the country – remains volatile and is likely to deteriorate further as the Taliban consolidates power in Afghanistan and internal pressures grow towards rapprochement with militant groups. The DFAT report, for instance, paints a stark picture of the security environment in Pakistan’s border regions. Relevantly, it states:4

   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.

   The above findings from DFAT, in my submission, strongly support a conclusion that the applicant in this matter faces a moderate to high risk of harm upon return to Swat. It is evidence that Swat remains deeply unstable, volatile and the security situation is fluid. Read as a whole, the most recent January 2022 Department of Foreign Affairs and Trade (DFAT) report confirms the real, operational capabilities of the Taliban throughout Pakistan and in KPK in particular.

   Moreover, there is a wealth of country information demonstrating that the TTP are only growing stronger, and the risk to those known to oppose the TTP is only growing stronger.

   We firstly refer to the alarming news dated 28 November 2022, when the TTP announced the end of the ceasefire agreed with the government and issued orders to fighters to carry out indiscriminate attacks “wherever you can in the entire country”, as reported in multiple media sources including Aljazeera:

   The armed group Tehreek-e-Taliban Pakistan (TTP), also known as the Pakistani Taliban, has announced the end of an indefinite ceasefire agreed with the government in June and issued orders to its fighters to carry out attacks across the country.

   “As military operations are ongoing against mujahideen in different areas, … so it is imperative for you to carry out attacks wherever you can in the entire country,” the group said in a statement on Monday.

   In a recent report regarding the security situation in Pakistan, SATP notes that since the ‘official’ talks between the TTP and the Government collapsed with the TTPs declaration of an end to the ceasefire on 28 November 2022, violence continues to rise, the TTPs presence in Swat has “re-emerged violently” and the risk to violence spreading into other areas of Pakistan have “increased dramatically”:

   Though an attempt to start a direct dialogue between the TTP and the Pakistan Government was initiated soon after the Taliban seized Kabul, it finally succeeded in May 2022. After a fractious six months, it came to an end in November 2022. During this entire period, there was not a single phase of peace on the ground.

   On the contrary, an October 12, 2022, report suggested that the TTP had re-emerged violently in the restive areas of Swat, as militants detained Police personnel and an Army officer after enforcement officials launched an operation to capture TTP militants. Earlier, an August 12, 2022, report noted that TTP militants had established a check-post at Balasoor Top, besides roaming about freely in other areas of the Matta tehsil of Swat. The areas included Bar Shor, Koz Shor, Namal, Gat Peuchar and among others. Significantly, the Geo News correspondent in Swat, Mehboob Ali, claimed that at least 200-250 TTP terrorists were present and operating in the area.

   …

   Meanwhile, a report presented to Prime Minister Shehbaz Sharif during the national security review meeting in December 2022, warned that, because of an acute shortage of staff and resources, the KP CTD would not be able to prevent or stop terrorist attacks in the province, and lacked the capacity to fight terrorism.

   …

   As ‘official’ talks between the TTP and the Government collapsed with the TTPs declaration of an end to the ceasefire on November 28, 2022, an escalation of violence within KP, and the possibilities of its fanning out into other areas of Pakistan, have increased dramatically. The risk of Pakistan’s tribal areas once again becoming the “most dangerous place on earth” is real.

   Similarly, the South Asia Terrorism Portal describes Pakistan as a “turbulent nation” and highlights the vulnerable and deeply unstable political situation, as well as the rise of the TTP:

   All indications suggest an imminent escalation of the political crisis. There is a possibility also of a significant rise in terrorism, with the Tehreek-e-Taliban Pakistan (TTP) intensifying operations as well. It is useful to recall that Khan has long been relatively sympathetic to the TTP, long supporting a negotiated settlement with the terrorists, instead of kinetic operations against them. Of course, Khan has also alleged that the TTP was trying to kill him - a charge the TTP leadership has denied - but there is no reason to believe, if nothing more, that the TTP will take advantage of any compounding of the political disorders in the country to intensify its own campaign of terror.

   Amidst a deteriorating security situation in the country due to escalating terrorism, more particularly after the withdrawal of the TTP from peace talks in November 2022, the volatile economic and uncertain political situation, Khan's onslaught, even after his release from jail, against the Military Establishment and the government has unnerved both the centres of national power. Nevertheless, it is useful to recall that the Army remains by far the most powerful institution in Pakistan. While there are several reports of increasing divisions within the Army leadership on Imran Khan and the PTI's recent actions, it is unlikely that these would be sufficient to force the Army to abandon its present hardline. Given the scale and character of the protests across the country after Khan's arrest, however, there can be no simple predictions of any easy outcome of the present contretemps - certainly in the long run. After a downslide over decades, Pakistan appears to be at the threshold of some very 'interesting times'.

   We also refer to the recent report from CTC Sentinel located within the Combatting Terrorism Center at West Point which provides a comprehensive and current status report on The Tehrik-i-Taliban after the Taliban’s Afghanistan takeover. In particular, it sets out the following:

   -    With Pakistan engulfed by political and economic turmoil, the Tehrik-i-Taliban Pakistan (TTP) is again growing as a threat.

   -    With a solid organizational foundation and its eyes set on the Pakistani state, the TTP appears ready to follow in the footsteps of the Afghan Taliban and take control of territory in Pakistan’s tribal areas. The Taliban victory in Afghanistan has emboldened and strengthened the TTP. With the Taliban in control of Afghanistan and sympathetic to the TTP, the TTP now enjoys a level of ‘strategic depth’ that is arguably unparalleled in its history.

   -    The TTP has obtained new more sophisticated weapons and relocated fighter from Afghanistan to Pakistan and is now turning its focus back to its war against the Pakistani state. Over the past two years, the group has gone through a series of mergers, strengthened its media and operational activities, moved away from the indiscriminate targeting of civilians in suicide attacks, implemented a range of new internal policies centralizing its organizational structure, and settled on a localized strategy.

   -    The TTP’s attacks have increased rapidly, have expanded from the tribal belt to the major cities of the country, and have strategically focused on the security forces. The number of TTP-claimed attacks more than tripled between 2020 and 2022, with the monthly attack average increasing from 14.5 in 2020 to 23.5 in 2021 and 45.8 in 2022.

   We also draw the Tribunal’s attention to recent country information from the South Asia Terrorism Portal (SATP) which makes clear that, far from being in the midst of a downward trend, violence in the province of Khyber Pakhtunkhwa (KPK) is on the rise, including against civilian targets.

   Looking at the reported deaths on SATP, it is clear that 2022 was a particularly bloody year, with 527 fatalities reported in KPK, including 119 civilians. High levels of violence and fatalities have continued into 2023, with 300 fatalities in KPK already reported up to 14 August 2023:

Year	Incidents of Killing	Civilians	Security Forces	Terrorists/ Insurgents/ Extremists	Not Specified	Total
2020	78	61	57	98	0	216
2021	129	71	108	121	0	300
2022	184	119	173	235	0	527
2023	138	93	191	199	0	483

Further, looking at the data in context from 2019 to 2023, it is clear that there is an increasing trend of violence, with deaths increasing substantially since 2019. Indeed, the number of fatalities in 2022 is greater than any recorded since 2014 and, the figures for 2023 have already almost exceeded those figures, suggesting this year will be even bloodier than the last.

In August 2023 alone, as of 14 August 2023, there have already been 10 fatalities in KPK – in just 14 days.

The 2023 assessment published by the South Asia Terrorism Portal in relation to the security situation in KPK states:

According to partial data compiled by the South Asia Terrorism Portal (SATP), KP has recorded 33 terrorism-related fatalities, including 23 terrorists, eight Security Force (SF) personnel and two civilians, so far, in the current year (data till January 22, 2023). During the corresponding period of 2022, the province had recorded 19 such fatalities including 11 terrorists, five SF personnel and three civilians.

KP recorded a total of 527 fatalities (119 civilians, 173 SF personnel and 235 terrorists) in 184 incidents of killing in 2022, as against 300 such fatalities (71 civilians, 108 SF personnel, and 121 terrorists) in 129 such incidents in 2021, registering an increase of 75.66 per cent in overall fatalities. Overall fatalities, on year-on-year basis, have been on a continuous rise since 2020, when fatalities stood at 216 (61 civilians, 57 SF personnel, and 98 terrorists) in comparison to 130 (30 civilians, 69 SF personnel, and 31 terrorists) in 2019.

Significantly, overall fatalities in 2022 are the highest in a year since 2014, when there were 697 fatalities. In terms of SF fatalities, the 2022 tally is the highest since 2013, when there were 181 fatalities. Terrorist fatalities in 2022 were the highest since 2011, when there were 372 such fatalities. The number of civilians killed in a year touched three digits after a gap of five years, with 122 civilians killed in 2016.

Other parameters of violence also indicated a worsening security situation in the province. Total terrorism-linked incidents jumped sharply from 168 in 2021 to 225 in 2022, the highest since 2015, when there were 278 incidents. The number of major incidents (each involving three or more killings) increased from 41 in 2021 to 56 in 2022, the highest since 2013, when there were 72 such incidents. The resultant fatalities in such attacks also increased from 186 in 2021 to 337 in 2022. Similarly, KP accounted for an increased number of explosions, from 32 in 2021 to 45 in 2022 (the highest since 2015, when there were 50 such incidents), and the resulting fatalities spiked from 52 to 129. The province recorded eight suicide attacks in 2022 (the highest since 2017, when there were also eight such attacks) as against two in 2021. In the worst attack, on March 4, at least 63 worshippers lost their lives and 194 others were injured when a suicide attacker detonated himself inside a Shia Mosque in the Koocha Risaldar area of Peshawar.

We also draw the Tribunal’s attention to the following recent reports of terrorist incidents in KPK as only examples of the recent upsurge in violence and security tensions in [the first named applicant]’s home area:

• On 12 August 2022, reports noted that TTP militants had established a check-post at Balasoor Top, and were roaming about freely in other areas of Swat. Local residents said that the TTP militants were also present in large numbers in the mountainous areas of Matta tehsil, and the Geo News correspondent in Swat claimed that at least 200-250 TTP militants were in the area.

• On 13 September 2022, Idrees Khan, VDC leader and two of his police guards were among five people killed, while several others sustained injuries, in a remote-controlled bomb blast at the Kot Katai village of the Brai Bandi area of the Kabal tehsil (revenue unit) in Swat. A TTP statement later claimed:

We killed the leader of the peace committee Idress Khan… The mujahedeen were pursuing him for almost 13 years”

• On 9 October 2022, the Counter-Terrorism Department intercepted a terrorist attack and killed two TTP terrorists during an encounter in the Rahimabad area of Swat. Four Security Force personnel were also injured during the encounter;

• On 10 October 2022, the son of a local peace committee member was shot dead by terrorists in the Waliabad area of Swat; and

• On 10 October 2022, assailants attacked a school van in Swat, killing the driver and injuring at least one student.

• On January 14 2023, three policemen were killed in a terrorist attack on the Sarband Police Station in Peshawar, the provincial capital of KPK. TTP claimed responsibility for the attack.

• On January 19 2023, three police constables were killed in a suicide attack in KPK. Police said terrorists armed with hand grenades, entered the premises and opened fire using a sub-machine gun. After the firing, a suicide bomber blew himself up. TTP claimed responsibility for the attack.

• On April 8, 2023, two Army soldiers were killed in an Improvised Explosive Device (IED) blast in the Bara tehsil (revenue unit) of Khyber District.

• On April 3, 2023, two Policemen were killed by unidentified terrorists while they were on patrol duty in the Tapi area of Kohat District.

• On March 30, 2023, four Policemen, including Deputy Superintendent of Police (DSP), Iqbal Mohmand, were killed while another six Policemen were injured when terrorists attacked a Police check post in Lakki Marwat town (Lakki Marwat District).

• In May 2023 one student was killed and six others were injured in Sangota village of Swat District in Khyber Pakhtunkhwa Province when a Police official deployed at Sangota Convent Girls School opened fire, reports Tribune PK on May 16.

• On 8 June 2023 two Policemen were killed as unidentified assailants opened fire at them near Sabzi Mandi in Mingora town of Swat District in Khyber Pakhtunkhwa. The attackers managed to flee the scene.

• On 20 July 2023 three police officers and one civilian killed by a suicide bombing in a compound office in Bara, Khyber Pakhtunkhwa.

• On Sunday 30 July 2023, an explosion at a political rally in Bajaur, KPK killed at least 43 people and wounded 200 more.

Further, a recent PIPS report on Pakistan emphasises a ‘spike in terrorist activities’ and a ‘return to violence’, including, in particular, KPK:

As noted earlier, the spike in terrorist activities and the increasing presence of terrorists has seriously raised concerns among Pakistani authorities. Areas that were once peaceful face the prospect of returning to violence. Many are concerned that assassinations, kidnappings, and terrorist assaults could resume into being commonplace occurrences in Khyber Pakhtunkhwa.

The same report records high numbers of attacks in the first quarter of 2023:

According to statistics provided by Pak Institute for Peace Studies (PIPS), militants carried out 82 attacks during this quarter of January to March in which 183 people were killed, including 139 personnel of security and law enforcement personnel, 30 civilians, and 14 militants, while 418 others were injured. Therefore, Pakistan needs to undertake decisive kinetic operations against the TTP, IS-K and other groups unilaterally if need be, astride the Pak-Afghan border too.

...

The number of cross-border attacks is continuing to rise for a second consecutive year. According to the annual security report published by the Pak Institute for Peace Studies (PIPS), 15 cross-border attacks took place in Pakistan during the last year. Out of the total 13 attacks happened across the country’s border with Afghanistan in Khyber Pakhtunkhwa and Balochistan. These attacks from Afghanistan killed 34 people, including 20 security officials, and injured 52 others.

Furthermore, the report highlights the resurgence of the TTP:

1.2.2 The growing TTP threat and attacks

Since the Taliban seized control of Afghanistan in August of 2021, many experts have warned of the TTP's ominous resurgence in Pakistan. Initially, Imran Khan, the then-prime minister, and others in Islamabad celebrated the Taliban's victory in Afghanistan by declaring that the nation had freed itself from “the shackles of slavery.”22 Islamabad was expecting that a friendly Afghan regime would join Pakistan in eliminating terrorist outfits such as the TTP, but the Afghan Taliban have failed to curtail the TTP threat resulting in ongoing tensions between both neighbouring countries.

The most recent PIPS report Pakistan’s Afghan Perspective and Policy Options found that the Taliban’s return to power in Afghanistan has strengthened TTP and marked a return to conflict and terrorist violence in Pakistan:

The Taliban’s to return to power in Kabul had given hope to many in Pakistan that they will limit anti-Pakistan groups’ freedom of action. However, “contrary to these expectations, the Afghan Taliban’s return has so far strengthened the TTP.

In relation to KPK, it stated:

Khyber Pakhtunkhwa has been witnessing heightened level of terrorist violence by the TTP as well as IS-K since the August 2021, although militants had been trying to regroup there long before that. In July 2021, when the Afghan Taliban emerged as a more critical component in the Afghan power calculus by reportedly extending their control “roughly [over] a third of all 421 districts and district centers in Afghanistan,” the TTP also started intensifying attacks against Pakistani security and law enforcement personnel. Pak Institute for Peace Studies’ (PIPS) monthly security reports for July and August 2021 had noted that the TTP and affiliates had perpetrated 33 attacks mainly against police and army personnel in Khyber Pakhtunkhwa causing 47 deaths. Since then, the TTP and affiliates have been constantly increasing their presence and activities in the erstwhile FATA and other parts of Khyber Pakhtunkhwa (KP). The twin Waziristan and adjacent KP districts in southern KP such as Lakki Marwat, Tank, Bannu and DI Khan, as well as the provincial capital and neighboring Khyber districts have, in particular, emerged as flashpoints of insecurity and violence since August 2021.

We also draw the Tribunal’s attention the following analysis in the Terrorism Monitor from 9 February 2023:

Since late 2022, the Tehreek-i-Taliban Pakistan (TTP), also known as the “Pakistani Taliban,”—an alliance of jihadist networks that have fought the Pakistani state since 2007—has been regrouping. This is especially so in the Khyber Pakhtunkhwa province on the border of Afghanistan. For example, there was an attack on October 10, one day after the tenth anniversary of the shooting of Nobel Laureate Malala Yousafzai. In this incident, unidentified armed men opened fire on a school van in Swat district, killing the driver and injuring students (Dawn, October 10). The attack occurred following the resurgence of the TTP militants in Swat, which indicates that the TTP is attempting to make its presence felt in Swat and elsewhere in the province.

…

TTP militants are now re-emerging in the mountainous areas of Swat. Like in the past, they are conducting improvised explosive device (IED) attacks and targeted killings in Swat valley. This has resulted in a backlash from the civilian population, however, with hundreds of people taking to the streets to protest against the rise of militancy throughout Khyber Pakhtunkhwa province (Dawn, September 16; Dawn, October 12). Among other controversial incidents, in one Swat attack, a peace committee member

and his police guards were killed in a remote-controlled bomb blast, which the TTP claimed responsibility for (Dawn, September 13).

Meanwhile, the Pakistani state has pressured the Afghan Taliban to bring TTP militants to the negotiating table. Although the Afghan Taliban did so, and negotiations were attempted, they were not a success. The TTP did not concur with the Pakistani civil and military leadership’s demand to abandon their position on jihad, nor did the Pakistani delegation concur with several of the TTP’s requirements (Terrorism Monitor, October 21). The TTP has also been using Afghan soil to carry out attacks inside Pakistan and against the Pakistani security forces at the Pakistan-Afghanistan border. Unsurprisingly, this has become a source of tension between Afghanistan and Pakistan. On the other side, Pakistani security forces carried out attacks against the TTP’s safe haven inside Afghanistan, which drew protests from Kabul (Gandhara, April 20).

…

Over the years, the TTP has become a greater threat to the Pakistani state and has been able to challenge its control over the border with Afghanistan and the country more broadly. Currently, however, the TTP is bolder than in the past, due to the assistance they have received from their Afghan counterparts (Dawn, September 6). Pakistan seems to be unable to control the threat; a good case in point is the resurgence of the TTP elements in Swat district, which notably does not share a border with Afghanistan. It is not inconceivable that the TTP will continue to make inroads throughout the country, even as far as Islamabad. Therefore, the Pakistani state must act promptly to crack down on the TTP before the militant group becomes too large to contain (Dawn, July 7).

Similarly, a recent article in The Diplomat highlights Pakistan’s ‘alarming rise in terrorism’:

Since the Afghan Taliban reclaimed power in Kabul, there has been a gradual increase in insecurity in Pakistan, with a rise of terrorist acts. 2022 witnessed 27 percent more terrorist acts as compared to 2021, and the lethality continued to intensify, as is evident from the Police Lines mosque suicide bombing in Peshawar.

…

Moreover, the reluctance of the Afghan Taliban to stop the TTP and other elements from using their soil for attacks on Pakistan has resulted in more mayhem and bloodshed. The TTP, ideologically associated with the Afghan Taliban, is finding a sort of legitimacy in its fight against Pakistan. Ultimately, the group is being fortified and is finding supporters along with facilitators for their nefarious designs inside Pakistan.

The reemergence and regrouping of the TTP in KP, particularly in Swat, Malakand Division, has caused a wave of unrest among the locals. There are mass protests in settled and tribal areas against the intrusion of these foreign elements once again into the country.

In addition to the TTP, the Khorasan branch of the Islamic State and Baloch insurgent groups, such as BLA and others, further intensified terrorist activities during 2022. The same year also saw the emergence of the BNA and SPA as new terrorist organizations in Balochistan and Sindh; these groups went on to claim responsibility for terrorist activities in Lahore and Karachi, respectively. It is believed that Sindhi insurgent groups have developed a nexus at the tactical level with the Baloch elements targeting the China-Pakistan Economic Corridor (CPEC).

In 2022, up to 512 terrorist acts (on an average 43 attacks per month) were carried out in Pakistan, targeting both security personnel and civilians. The attacks caused 980 fatalities and 750 injuries. Among them, at least 283 security personnel lost their lives in 2022, with 40 fatalities in December 2022 alone. In comparison to 2021 (850 causalities), there was a 14.47 percent rise in fatalities in 2022 in Pakistan.

Most of the casualties have been in KP and Balochistan, KP accounts for 64 percent of all terrorist activity in Pakistan, followed by 26 percent in Balochistan, 5.8 percent in Sindh and 2.8 percent in Punjab. The overall level of violence has exponentially increased in KP, with a 59 percent increase in fatalities in 2022 (633 fatalities, as compared to 399 in 2021). Balochistan faced 254 deaths, along with 218 injuries in terrorist incidents. In Sindh, 57 people lost their lives and 58 people were injured; 28 people were killed and 27 injured in Punjab.

Finally, we refer here to a decision by the presiding Member Joseph Lindsay at the Administrative Appeals Tribunal dated 1 May 2020 in which he concludes:

“It appears that Swat is a place where people can go skiing and to which tourists can travel to marvel at as the “Switzerland of Pakistan” but at the very same time is also a place that is not free from the adverse influence of extremists that seem to be ever present and can flare unexpectedly.”

In that case, the Tribunal surveyed recent country information to confirm that targeted violence against those with anti-Taliban views imputed to them continued to occur throughout Swat:

“In consideration of the above information, the Tribunal is not satisfied that the security situation has sufficiently improved to a situation where the Tribunal could reasonably find that there is not a real chance of serious harm to the applicant, given his circumstances and risk profile as identified, should he return to Pakistan in the foreseeable future. Accordingly, the Tribunal accepts that the applicant does have a well-founded fear of persecution from individuals in the Taliban who would remember his previous involvement in opposing the Taliban. The Tribunal accepts that the applicant is a member of a particular social group, that group being a former VDC member of Swat Valley and also he was a known activist against the Taliban. Therefore, the Tribunal finds that there is a real chance of serious harm to the applicant, given his circumstances and risk profile as identified, should he return to Pakistan in the foreseeable future.”

In our submission, the above country information demonstrates that the security situation in KPK has further deteriorated since that decision. On the basis of the above, we urge the Tribunal to find that the TTP maintains a real and operational presence throughout KPK, including Swat Valley, with the capacity and propensity to carry out attacks against perceived opponents. We submit that [the first named applicant] will continue to be marked as an opponent of the TTP, on account of his activities with the VDC, his family’s status in Swat, and his return from a Western country. If so identified, the above country information confirms that [the first named applicant] would be subjected to unimaginable threats and danger on return to his home village and the Swat Valley generally.

4.2. State Protection

We submit that [the first named applicant] will be unable to avail himself of effective state protection in relation to the harm he fears. In relation to the harm feared in Swat on account of the TTP and its associated militias, country information confirms the inadequacy of the national government and state authorities in curbing militancy.

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.

The DFAT report also notes that:

[5.9] Police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary.

We also highlight information contained in the South Asia Intelligence Review, detailing weaknesses in Pakinstani police forces and the KP counter-terrorism department:

Indeed, a report released by Radio Free Europe/Radio Liberty on March 31, 2023, noted that the weapons left behind by US Forces when they pulled out from Afghanistan in 2021, and that had been seized by the Afghan Taliban, have reached terrorist groups, mainly the TTP, operating in Pakistan, principally in KP. Abdul Sayed, a Sweden-based researcher who tracks the TTP, claimed that the group’s access to sophisticated combat weapons has had a “terrifying” impact, especially on the relatively lesser-equipped Police forces in Pakistan.

Indeed, according to a report released on December 19, 2022, the KP Counter Terrorism Department (CTD) lacks the capacity to fight terrorism. The report noted that the KP CTD had a staff of 2,135 against an authorized strength of 3,161. This put an average strength across KP’s 34 districts at 62 personnel per district. As against Punjab’s massive fleet of 1,466 Police vehicles, KP has a mere 448.

On February 1, 2023, Prime Minister Shehbaz Sharif blamed the KP Government for its failure to equip the Police and civil armed forces to counter terrorists, questioning the manner in which the provincial Government had spent funds to the tune PKR 417 billion received from the Federal Government since 2010. During the Federal Cabinet meeting, the PM demanded, “Where did these funds go even though the National Counter-Terrorism Authority and Counter-Terrorism Department (CTD) had been established?” The PM said that the nation wanted the KP Government to be held accountable for the rise of terrorism in the Province.

We draw the Tribunal’s attention to the following examples of recent terrorism incidents throughout Pakistan, including in Karachi and Islamabad, as evidence of the government’s lack of capacity to prevent terrorism, targeted killings and harm to civilians in Pakistan and particularly to those who are perceived opponents of the TTP/Taliban:

• On 23 December 2022, a suicide car bombing killed one police officer and injured four officers and two civilians in Islamabad. The TTP claimed responsibility for the attack;

• On 14 January 2023, three policemen were killed in a terrorist attack on the Sarband Police Station in Peshawar. The TTP claimed responsibility for the attack;

• On 18 January 2023, a teenager, Raheedullah, was found beheaded in a remote area of Bargai village in Lakki Marwat District. The Ittehadul Mujahideen-i-Khurasan left a dagger and a handwritten chit in Pashto near the body, with the message that Raheedullah was found guilty of spying for the Army and the Counter Terrorism Department (CTD);

• On 19 January 2023, three Police constables were killed in a suicide attack at the Takhta Beg Police checkpost in Jamrud tehsil (revenue unit) of Khyber District in Khyber Pakhtunkhwa. The TTP claimed responsibility for the attack;

• On 31 January 2023, over 100 people were killed and many more people injured in a suicide bombing carried out at a mosque in the city of Peshawar. A commander for the TTP took responsibility for the attack;

• On 17 February 2023, at least four people were killed and 14 people injured after militants stormed police headquarters in Karachi. The TTP claimed responsibility for the attack.

As reported in the ABC, experts describe the TTP as “Pakistan’s Frankenstein’s monster”:

Sydney-based Ayesha Jehangir, a media, war and conflict researcher at the University of Technology Sydney, described the TTP as "Pakistan's Frankenstein's monster".

"Only this time, Pakistan – who has had an influence over the Taliban since the militant organisation was created in the 1990s – appears to be losing control, and the Karachi attack is evidence of the fact that the TTP problem is once more growing and is not confined to the Khyber-Pakhtunkhwa province only," she said.

The attack on the police headquarters in Karachi should not be looked at as an isolated event, she said.

…

Many analysts have blamed the resurgence of militancy inside Pakistan on Islamabad's alleged long-standing support for the Taliban in neighbouring Afghanistan.

"What do you expect will happen when the state supports militant organisations in the region, and make religion a determinant of Pakistani political identity?" Dr Jehangir said. "The result is that militants such as the TTP are now claiming their share in the country's politics, as did their comrades in Afghanistan."

Pakistani geopolitical analyst Malik Ayub Sumbal said the recent attacks showed Pakistan's mammoth spending on the army was having little benefit to the country. "The army's self-proclaimed success stories [against militants] and the recent rise of militancy is a clear contradiction," he said.

...

The surge in terrorist activity comes as Pakistan's economy appears to be buckling, following widespread floods last year that left a third of the country under water. Earlier this month, Prime Minister Shahbaz Sharif called the economic situation "unimaginable".

Under pressure from global lenders, Islamabad has put in place severe austerity measures resulting in widespread poverty and disparity.

Latest figures suggest the central bank reserves in the country stand at $US3.09 billion ($4.47 billion), the lowest in more than two decades. Meanwhile, Pakistan's rupee has dropped 16.5 per cent in value against the US dollar in weeks.

It is clear that the current security situation in Pakistan remains volatile and the entire country, including Swat, is in the midst of an increasing spate of attacks. It is self-evident that [the first named applicant] cannot avail himself of effective state protection against the harm he fears from the TTP.

1. In the hearing the Tribunal spoke to [the first named applicant] about his claims. He confirmed that his father and his brothers who were in attendance at the hearing have all been granted protection. In particular, evidence was provided showing the Department had recently granted protection to [the applicant]’s brother, [Mr B].

2. The applicant gave evidence that his father was against the Taliban’s activities, where they were bashing people, killing people and closing down schools. He said he was also against the Taliban’s activities. He spoke of an incident where certain Taliban members beat one of the villagers, for no reason. He spoke of an incident where he and his father were shot at by the Taliban. He spoke about the incident where the Taliban kidnapped his brother. He spoke about doing work with the VDC. He spoke about his involvement in assisting the Pakistani Army. He spoke about the Taliban targeting VDC members and killing them. He said his mental health has been affected by his experiences. He spoke about his fear of returning to Pakistan and of the continuing Taliban threat. He acknowledged that these events happened some time ago, but he said he was still afraid of the Taliban. He said he believed himself to still be on a target list due to his previous actions against the Taliban when he was in Pakistan.

3. After the hearing, the Tribunal received further submissions:

   [The first named applicant]’s future conduct if returned to Swat

   Firstly, we emphasise paragraph 46 of [the first named applicant]’s statement dated 12 January 2018, in which he confirms that, if he returned to Swat, he would again be active with the VDC and assist the army:

   46. My father and brother were active member of the Army-supported Qaumi Aman Committee from 2009 until 2013 when they left Pakistan. And they target every family member of the committee members. If I will go back, I must join my elders and to start helping army again. Our family is known to the Taliban. And everyone know that I helped to bring my family to Australia.

   We are instructed that this statement remains true and he was not questioned about this at the hearing. [The first named applicant] considers it his duty, as a member of his community and the eldest son in his family, to play his role in protecting his community from the TTP. He still holds strong anti-Taliban opinions, as expressed in his previous statements. We enclose a letter from [Mr H], Senior Vice President of the VDC, [Village 1], dated 29 August 2023 describing the current role and activities of the VDC in Swat.

   We also refer to paragraph 14 of [the first named applicant]’s statement dated 16 August 2022 in which he clearly articulates how the Taliban would identify him, if he were to return:

   14. However, returning to Mardan and living in hiding for several weeks is very different from relocating a permanently living there. If I did that, then of course I would become known to the Taliban. I could not just stay at home – I would have to go out to find work, register my residence, do things for the family. The local Taliban networks would realise I was not from the area and would begin to monitor me. They could then obtain intelligence regarding me from their networks in the area where I lived.

   Targeting of [the first named applicant] in lieu of his father/relatives

   The Tribunal (differently constituted) and the Department have accepted that [the first named applicant]’s three brothers and father have been previously targeted by the Taliban and that each faces a real risk of harm upon return to Pakistan. [The first named applicant]’s entire immediately family now resides in Australia and a number of them gave evidence, or were available to give evidence, at the recent hearing. We submit that this further increases the risk to [the first named applicant] upon return. He is likely to be targeted not only due to his own profile, but in lieu of the Taliban being able to harm his father and/or brothers.

   Evidence of attacks on previous VDC members

   In the absence of supporting evidence, the Tribunal cannot assume the Taliban will not target [the first named applicant] simply because he has been away from Swat for a number of years. Country information clearly demonstrates that the Taliban do in fact continue to target and seek out those who oppose them, including past and present members of the VDC.

   We draw the Tribunal’s attention to report that on 13 September 2022, VDC leader, Idrees Khan was killed. A TTP statement later claimed:

   We killed the leader of the peace committee Idress Khan… The mujahedeen were pursuing him for almost 13 years”

   Numerous sources have also reported the death of Muhammad Sherin in Charbagh tehsil, Swat district in September 2022. Reports indicate that Muhmmad Sherin was a member of the VDC between 2010 and 2015. The TTP claimed responsibility for the attack. Despite having ceased involvement with the VDC in 2015, Muhammad was targeted seven years later. Further, as stated, it is abundantly clear that [the first named applicant] would resume his activities against the Taliban, including with the VDC, should he be forced to return to Pakistan.

   These reports demonstrate that the Tribunal continues to target people who were VDC members, many years after they cease their involvement in the VDC. The country information provided to the Tribunal in advance of the hearing, including the most recent DFAT report, indicates that past and present members of the VDC are considered enemies of the Taliban and are threatened and targeted. We further note that media reporting in Swat is relatively limited and usually only high-profile cases (such as that of Idrees Khan) are published in Western media. Nevertheless, it remains the case that the situation on the ground is volatile and dangerous. By way of example, we enclose a local news article, published 28 August 2023, reporting an attack on police personnel just last week. Furthermore, we enclose a letter from [Mr H], Senior Vice President of the VDC, [Village 1], dated 29 August 2023. [Mr H] describes the targeting of VDC members and the increase in danger due to the new wave of terrorism.

   Despite the time that has passed since his previous active involvement in the VDC, [the first named applicant] still faces a real chance of serious harm at the hands of the Taliban in the reasonably foreseeable future, due to his and his family’s previous involvement in the VDC and anti-Taliban political opinion, as well as his commitment to rejoin the fight against the Taliban if he is forced to return to Pakistan.

4. The Tribunal has also considered the following documents:

   - Letter from [Mr H] dated 29 August 2023, and English translation;

   - Copy of Zama Swat news article dated 28 August 2023, and English translation;

   - News article titled ‘Another peace committee member killed’ dated 16 September 2022; and

   - News article title ‘Ex-peace body member martyred in Swat’ dated 16 September 2022.

   Findings and analysis

5. The Tribunal has carefully considered the [the first named applicant]’s claims and evidence as detailed above. The Tribunal has had regard to the DFAT Country Information Report for Pakistan dated 25 January 2022. Having carefully considered the information before the Tribunal, the Tribunal makes the following findings.

6. The Tribunal finds that [the first named applicant] is born [date], he is a citizen of Pakistan, and Pakistan is his receiving country. The Tribunal finds that he is from [Village 1] Swat, Khyber Pakhtunkhwa, Pakistan. The Tribunal accepts that his ethnicity is Pashtun and that he is a Sunni Muslim. The Tribunal accepts that his family members, [Mr A] ([the applicant]’s brother), [Mr B] ([the applicant]’s brother) and [Mr C] ([the applicant]’s father) have already been granted protection.

7. The Tribunal accepts that [the applicant], along with his family, were involved in opposing the Taliban when he was in Pakistan. The Tribunal accepts that [the applicant] became the subject of adverse attention from members of the Taliban when he was in Pakistan, including in respect to an incident when he and his father were shot at in 2008.

8. The Tribunal accepts that [the applicant] provided assistance to the Pakistani military, and that his father had a leadership position in the VDC. The Tribunal accepts that [the applicant]’s brother was kidnapped by the Taliban in 2009 but and later released after the payment of a ransom. The Tribunal accepts that in 2012 VDC members were killed by the Taliban in [Village 1] and surrounding areas.

9. The Tribunal accepts that in 2013 [the applicant]’s parents received a “warning” letter from the Tehreek-e-Taliban, and his parents fled Pakistan [in] July 2013.

10. The Tribunal accepts that [the applicant] has diagnosed mental health issues and is receiving treatment.

11. In all the circumstances above, and having due regard to the country information above, the Tribunal has concerns about the fragility of the current security situation in Pakistan, but in particular to the applicant’s home area of Khyber Pakhtunkhwa in Pakistan. The Tribunal accepts that the security situation in Khyber Pakhtunkhwa is deteriorating at the present time.

12. The Tribunal accepts that [the first named applicant], due to his previous history and his family’s history of opposing the Taliban, would be a person of interest to the Taliban should he return to Pakistan in the possible future. The Tribunal accepts that his mental health situation makes him a particularly vulnerable person, which only serves to increase his risk profile should he return to Pakistan in the foreseeable future.

13. Accordingly, the Tribunal accepts that [the first named applicant] has a well-founded fear of persecution from individuals in the Taliban who would remember his previous involvement, and his family’s involvement, in opposing the Taliban. The Tribunal accepts that [the applicant] is a member of a particular social group, that group being a former VDC member of Swat Valley and also he was a known activist against the Taliban. Therefore, the Tribunal finds that there is a real chance of serious harm to [the first named applicant], given his circumstances and risk profile as identified, should he return to Pakistan in the foreseeable future.

14. Based on the country information in the DFAT Country Information Report for Pakistan, the Tribunal is not satisfied that the applicant would receive effective protection from the Pakistani authorities. In addition, the Tribunal is not satisfied that the applicant would reasonably be able to relocate within Pakistan, given his current health issues.

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

16. The Tribunal is not satisfied that [the applicant]’s wife, [Ms D], is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that [Ms D] is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of [Ms D]’s application depends on the outcome of [the applicant]’s application. It follows that [Ms D] will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.

    DECISION

17. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the [first named applicant] satisfies s 36(2)(a) of the Migration Act; and

    (ii)that the other applicant, [Ms D], satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Joseph Lindsay
    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.

    …