1807065 (Refugee) [2023] AATA 4368 (13 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Coffey
CASE NUMBER: 1807065
COUNTRY OF REFERENCE: Pakistan
MEMBER:Peter Vlahos
DATE:13 September 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
This Statement was made on 13th September 2023 at 9.00AM.
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race –Pashtun ethnicity – religion – Pashtun Sunni male –imputed political opinion – anti-Taliban – past work with foreign armed forces in Afghanistan – working as a translator – sympathiser of the West – State protection not available – relocation is not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 19 September 2016. The delegate refused to grant the visa on the basis that did not meet the requirements of s.36(2) of the Act.
The applicant appeared before the Tribunal on 29 August 2023 to give evidence and present arguments. The Tribunal did not receive any evidence from any other individual.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background – Applicant’s migration and visa history
[In] August 2016 the applicant arrived in Australia on a Visitor FA-600 visa and on 19 September 2016 he applied for a XA-866 Protection visa (which was refused by the Department) but was granted the associated bridging visa.
The applicant’s identity and country of origins as claimed
Based on the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal,[1] and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of the information before the Tribunal, the Tribunal accepts the applicant’s identity as claimed.
Protection (if) available to the applicant in another country considered
[1] Department of Home Affairs File no.[deleted]
The Tribunal having reviewed and considered all information before it also concludes and finds that there is no evidence which indicates that the applicant has a right to enter and reside in a country other than his home country – Pakistan. Therefore, the Tribunal finds that s.36(3) of the Act does not apply to the applicant in this case.
The applicant’s Department file and information therein accessed by the Tribunal
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the department’s record of decision to the Tribunal with his application.
EVIDENCE AT THE HEARING
Background of the Applicant
The applicant was born on [date], in city of Karachi, Pakistan. He is married with two sons. The applicant’s immediate family remains in Pakistan. The applicant completed his primary and secondary education in Pakistan. Also, between 23 March 2014 to 18 March 2016, the applicant worked as ‘a supervisor’ for the company ‘[Company 1], [Country 1]. While in Australia, the applicant has been working in the building construction industry. The applicant’s father passed away on 22 June 2023 of natural causes, while his brother resides in [Country 2] (having obtained asylum) while the applicant has sisters who are in residence in Pakistan.
Applicant’s claims for Protection
The applicant’s claims for protection, including those at his protection visa interview, and evidence provided by the applicant in support of his claims are contained in his file, [number] and are summarised as follows:
§The Applicant is a Pashtun born in Karachi. He is married with two sons.
§He fears returning to Pakistan because he was threatened and targeted by Taliban because he worked with the [Country 3] army as a translator in Afghanistan.
§He translated Pashtun for the [Country 3] army from 27 January 2013 to 2 June 2013.
§On 15 March 2013 he was granted one week’s leave to visit his family in Pakistan. When he arrived home, he had a letter waiting for him from the Taliban warning him to quit his job in Afghanistan with the American occupiers. He claims he ignored the letter and returned to work in Afghanistan.
§After two and a half months, he requested another week’s leave to go home to visit his wife and child. He went back home and after a few hours someone knocked on the door. A small kid gave him a paper and told him two men had asked the child to give the paper to him. He claims it was another death threat from the Taliban.
§The applicant claims he decided to return to Karachi so as to leave Pakistan for a safer country, however, his bag was stolen on the bus journey home along with his passport, laptop, certificates, and other belongings.
§He had to stay in Karachi until his new passport was issued.
§The applicant claims the Taliban kept coming to his house bothering his family and asking for him.
§He claims he contacted his community council to ask them to advise the Taliban that he had already quit his job in Afghanistan.
§The applicant claims the community council advised him not to go back home as the Taliban have ordered Mujahedeen to kill him and his family if he ever showed up in North Waziristan again.
§He claims while in Karachi he got another letter from Taliban warning to kill him. He claims he had two options to leave the country or face the death penalty.
§He claims he got scared and contacted a friend who worked in [Country 1]. He claims his friend gave him contact details for a job in [Country 1] with a [company] called “[Company 1].”
§He worked in [Country 1] for this company starting on 1 April 2014. He went home to Karachi [in] August 2015. He claims he wanted to visit his family in North Waziristan but was scared and
so asked his wife and son to come to Karachi. During this period he received a phone call from a stranger who said “welcome to hell.” He claims a week later he received another threatening letter from Taliban. He departed to [Country 1] on [date] November 2015. His wife went back home to North Waziristan.
§He claims if he returns, he will be targeted by Taliban on account of returning from a Western country.
§He claims he will be “butchered” if he returns to Pakistan.
The applicant said that he had worked as ‘a translator’ and ‘interpreter’ for the [Country 3] Army during its peacekeeping operations in Afghanistan in the period January 2013 to June 2013. The applicant told the Tribunal that his ‘home area’ in Waziristan Province, Pakistan was very close to the Pakistan/Afghanistan border.
The applicant explained during that period the border between the two countries (that closer to his home) was very rarely patrolled and was porous and it was easy and without any difficulties for a person or persons to travel between the Pakistan and Afghanistan sides of the border.
The applicant said that he leant ‘English’ while ‘growing up in Pakistan’ and during the time he was learning English, the applicant’s friend – a Mr ‘[A]’ who was described by the applicant as a ‘former English teacher’ was ‘working for the [Country 3] army’ and ‘helped’ the applicant to obtain this work (as a translator) with the [Country 3] peacekeeping army in Afghanistan.
The applicant said that ‘often people from the local area surrounding the base’ would come on to the base in order ‘to provide information’ about ‘issues in the area’. According to the applicant’s description of his work with the [Country 3] military, he ‘would assist by interpreting for these locals’. The applicant said that he ‘worked directly for the [Country 3] forces’ and was not attached to any agency or third-party company.
The applicant described the activities of the [Country 3] military in the area, as the ‘[Country 3] forces were assisting the plight of the American and NATO forces in Afghanistan’ and were
The applicant said because of his work as an interpreter for the [Country 3] peacekeeping forces, he received ‘the commendation certificate’ from the US Military. The applicant said that the certificate was ‘genuine.’
The applicant said that as a result of his work with western military and their allies in Afghanistan, he received ‘threatening letters’ from local extremists. According to the applicant, the Taliban and other extremists are ‘known to use threat letters’. The applicant believed that the ‘extremists’ had a ‘genuine and ongoing interest in’ the applicant and this left him ‘with no other option’ but ‘to leave Pakistan’ to ‘safeguard his life.’
The applicant said that while he was in Pakistan, the local ‘community elders’ were engaged by him in order ‘to negotiate with the Taliban and other ‘extremists’’ with a “Jirgas”. The applicant said that the community elders “may have been able to convince not to harm” his “wife, children and elderly father” but could not ‘stop them from’ attempting ‘to find’ the applicant.
The applicant told the Tribunal that if ‘he was to return’ to Pakistan and to his home area, ‘the extremists would definitely harm me [him]’ because ‘they view [me] him as an infidel for supporting the foreigners.’
Further information by the applicant
According to the applicant on or about mid-2019, his brother, while travelling home from his school ‘was stopped’ by ‘five men’ and forcefully detained in a truck. The applicant said that the brother ‘was blindfolded’ also. These ‘men’ then (according to the applicant) told him that “given I (the applicant) had worked with the infidels” he, the applicant’s brother “needed to prove he was not a supporter of the foreigners” and that he “supported the extremists.”
The applicant said that his brother told him that “he was taken to a place in the mountains, a rural area” he “was not aware of.” He was interrogated and then he “was returned to the truck” and the “journey continued” his brother being “taken to a camp”. Initially, the applicant’s brother was “held in a tent” and then, was taken “into a room where he was held” on his own. The applicant said that his brother’s incarceration by extremists, lasted approximately 25 days. In this time, the applicant said that his brother was forced by his captors to do certain tasks (like, for example, washing, cleaning and gathering wood).
The applicant said that while his brother was ‘kept at the camp’ he was ‘questioned and interrogated about the applicant’s [work]. The applicant also said that his brother – during his interrogation was physically assaulted. The applicant also told the Tribunal that his brother was asked to undertake certain tasks for the extremists (acting as a suicide bomber) which he refused.
The applicant said that his brother became ‘very emotional’ while being detained and interrogated. Then one day, (the applicant did not specify a particular date) his brother while on an errand for his captors “was able to escape.” After escaping, the brother (according to the applicant) returned to his family’s home and then “went into hiding” and “then left the country after two weeks.” The applicant explained, that in order to flee Pakistan, his brother engaged the services of “smuggler” who “helped him flee to Iran then [to Country 2].” The applicant said that while in [Country 2] his brother lodged an application for Protection which was successful. The applicant said that his brother has remained in [Country 2] since he was granted protection.
The Tribunal requested the applicant if he could make available a certified and translated copy of his brother’s grant of Protection/or asylum provided to him by the [Country 2] authorities. The applicant was allowed seven days to provide the said document in the form requested by the Tribunal.
Why the applicant fears harm in Pakistan
The applicant said that he continues to ‘fear harm’ due to his ‘imputed political opinion.’ The applicant explained that his is “a Pashtun Sunni male” and that “the Taliban expect [him] to support their plight.” The applicant emphasised the point to the Tribunal, that his ‘past work’ with the [Country 3] armed forces in Afghanistan created for himself, the profile amongst extremist militants of a ‘infidel’ and he feared that if he returned to Pakistan he would be harmed or even killed.
The applicant also said that he had “now spent many years in a western country” and this would further characterise him in the “Taliban’s view” as a “infidel” who deserves to be dealt with in a harsh manner.
The Tribunal was told that “since the Taliban had come to power in Afghanistan” the “extremist groups in Pakistan” have “increased their power base and influence.” Therefore, according to the applicant, if he was “forced to return to Pakistan,” he “would be at risk of harm or being killed by [these] extremists.” It was the applicant’s belief, that “they targeted my brother” and this (according to the applicant) “suggested that they (the Taliban) have an ongoing interest in me [him].”
The Tribunal was told that “the Pakistani authorities are weak and inefficient.” It was the applicant’s opinion, that “they are unable to stop extremist groups from harming individuals who oppose them.” He went on to say that “the authorities are also corrupt and often support the plight of extremists” and because of this corruption, the applicant “cannot rely on their assistance, support” and protection.
Relocation
The applicant said that he had previously attempted to relocate so as to avoid harm, but said that he still faced harm.
It was the applicant’s opinion, that there is “nowhere safe in Pakistan” where he can reside in peace.
The applicant fear is that the “extremists” have “a strong network throughout the country (Pakistan)” and “will ensure that [he] is punished” and “harmed no matter where” he chooses to live.
The applicant also told the Tribunal that he can “be easily identified as being from Waziristan” because of his “accent and appearance…”
The applicant said that (if he returns) he will “be treated with suspicion no matter where” he “lives and will be at risk of harm.”
EVIDENCE (WRITTEN) SUBMITTED TO THE TRIBUNAL TO CONSIDER
The applicant provided the following written evidence to the Tribunal to consider which is as follows:
§‘Unsworn statement’ signed by the Applicant and dated 23 August 2023.
§‘Unsworn statement signed by the Applicant’s brother [name provided] undated verifying his brother’s circumstances and his own circumstances which caused him to leave Pakistan and to seek successfully ‘asylum’ in [Country 2].
§Submission (written) submitted by the Applicant’s legal counsel, A.U.M LAYWERS dated 22nd August 2023.
Comments – Applicant’s legal counsel concerning the applicant’s claims
Counsel contended that the applicant feared harm if returned to Pakistan due “to his imputed pollical opinion.” Counsel told the Tribunal that the applicant “had explained throughout his immigration process the details of his life while in Pakistan” and this included his fears of harm, “given his imputed political opinion” which arose because of his work for the [Country 3] peacekeeping forces in Afghanistan. Counsel was of the opinion, that these actions by the applicant had caused him “to be viewed as an infidel and opponent of extremist groups” operating in Pakistan.[2]
[2] see, AAT File – A.U.M LAWYERS – written submission 22 August 2023, paragraphs [17] at p. 4
Counsel identified the applicant’s “work for thew [Country 3] peacekeepers in Afghanistan as a “translator” – translating Pashtu and Urdu to English. This employment continued, according to Counsel for “approximately six months” and this work (accordingly) caused the applicant to become known to the local Taliban.[3]
[3] Ibid see, paragraph [18] and [19]
According to Counsel, the applicant “became known to the Taliban” because the [Country 3] peacekeepers “were in fact working under the operations (command) of US Army (in Afghanistan)” and the applicant “working as their translator” was considered to be a supporter of foreigners and the West.”[4]
[4] Ibid see, paragraph [20]
Counsel stated that the Taliban contacted and ‘threatened’ the applicant many times. He was told to quit his involvement with the foreign military. In order to convince the applicant to become compliant to the Taliban’s wishes, their threats became ‘increasingly aggressive’ and this caused the applicant to ‘fear that he would be killed’ if he remained in Pakistan. Also, the Taliban ‘attended his home’ and ‘enquired’ about his whereabouts with the applicant’s family members ‘on multiple occasions’ while the applicant was away.[5] Having received threats, (according to Counsel) the applicant travelled to Karachi to for his safety and while in Karachi, the applicant ‘made contact with his community council’ and ‘requested them to ‘advise the Taliban’ that ‘he was no longer working for the [Country 3] peacekeeping forces in Afghanistan. However, these attempts to settle matters with the Taliban led to no positive results.[6]
[5] Ibid see, paragraph [21] at p.5
Counsel emphasized the applicant’s claim that ‘given the on-going harassment, threats and abuse’ directed at the applicant’s person ‘the applicant could not remain in Pakistan and decided to leave for [Country 1].’ While in [Country 1], the Tribunal was told the applicant found employment and remained there for approximately one year and five months. The applicant was concerned about his family’s welfare decided to visit them.
However, according to counsel, the ‘applicant was extremely fearful of returning to his home in Waziristan’ and ‘arranged to meet his wife in Karachi’ hoping to avoid the Taliban and its informants. Nevertheless, ‘while in Karachi’, the applicant ‘received threatening phone calls and another letter from the Taliban’ – threatening his life. According to counsel, ‘the applicant is understandably fearful’ that ‘if he returned to Pakistan, he would be at risk of harm from the Taliban.’[7]
[7] Ibid at p.5-6 paragraph [25]-[26]
Counsel also reaffirmed that ‘since his departure from Pakistan’ the applicant’s family ‘has continued to be approached by the Taliban requesting information about his whereabouts. Also, in 2019, the applicant’s brother ‘was kidnapped’ and ‘held for approximately twenty-five days’ by the local Taliban and was threatened, abused and interrogated on matters concerning the applicant.’[8]
[8] Ibid at p.6 paragraph [27]-[28]
Counsel told the Tribunal that ‘the Taliban were suspicious that the applicant’s brother may have (also) been a supporter of the West’. However, the brother ‘escaped’ and has ‘successfully obtained protection in [Country 2].’[9]
[9] Ibid at p.6 paragraph [29]
It was counsel’s submission that:
It was highly apparent from the country information [submitted to the Tribunal] that the situation in Pakistan has continued to worsen following the resurgence of the Taliban in Afghanistan. Given the applicant’s personal circumstances, it is highly likely that the applicant would continue to be considered a supporter of the West and the foreign forces given his previous role with the [Country 3] Army and also given he has now lived in a Western country for many years.
Furthermore:[10]
With respect, we submit that given the Taliban and associated extremist groups are known for subjecting individuals affiliated to the West and individuals who do not support their ideology to serious and significant harm, there is no doubt that the applicant would be subjected to such harm on return to Pakistan. Of importance is the fact that the Taliban expect the applicant as a Sunni Pashtun man to support them. The fact that he (applicant) chose to work for the foreign forces then live in a Western country for prolonged will ensure they treat him disdain and subject him to serious harm.
[10] see, ibid at p.6 paragraph [30]
Therefore, it was Counsel’s conclusion that:[11]
…the applicant would be at risk of harm no matter where he resides in Pakistan. Extremist groups have strong networks throughout the country. He previously attempted to relocate to avoid harm, however continued to face issues and therefore was compelled to flee the country. We submit that the applicant’s profile emanating from his past work with the [Country 3] Army and time abroad in the West is such that he would be at risk of harm no matter where he resides.
COUNTRY INFORMATION – PAKISTAN – RULE OF LAW – SECURITY AND THE RE-SUREGENCE OF TEHREEK-e-TALIBAN PAKISTAN (TTP)
[11] Ibid at p. 6 see paragraph [31]
The country information that follows is relevant to the issues raised in the application for Protection visa by the applicant:[12]
[12] see, Department of Foreign Affairs and Trade, Country Information Report – Pakistan, January 2022.
2.1 The Islamic Republic of Pakistan came into being on 14 August 1947 after the partition of India. Partition caused riots and mass population movement; approximately half a million people were killed in communal violence, and one million were left homeless.
2.2 Since partition, Pakistan and India have fought three wars, including the Indo- Pakistani war of 1971, which resulted in the separation of East Pakistan to become Bangladesh. Kashmir remains disputed, and there have been periodic military clashes in that area for decades. The military holds powerful influence and has repeatedly seized power from civilian governments, most recently under General Pervez Musharraf from 1999 to 2008.
POLITICAL SYSTEM
2.22 Pakistan is a federal parliamentary republic with a bicameral legislature consisting of the National Assembly and the Senate. Under the constitution, all powers are vested in the Parliament, the Prime Minister and the Supreme Court, with powers and duties of other authorities defined by Acts of Parliament.
The Prime Minister is elected by the National Assembly and leads the executive branch, while the President is a largely ceremonial figurehead. There are three levels of government: national, provincial, and local.
2.23 While the military is theoretically accountable to the Prime Minister and, through that position, to the President, in practice the military exerts an outsized influence on all levels of Pakistani politics, especially domestic security and foreign policy.
2.24 Pakistan includes four provinces – Sindh (capital: Karachi), Punjab (capital: Lahore), Khyber Pakhtunkhwa (formerly the North-West Frontier Province and now including the former Federally Administered Tribal Areas; capital: Peshawar) and Balochistan (capital: Quetta). Islamabad has its own status as a 'Federal Capital Territory'. All four provinces have their own elected provincial assemblies and governments. A Chief Minister heads each provincial government. Each province also has a Governor, who is appointed by the President of Pakistan. The Kashmir region is disputed with India. Pakistan-administered Kashmir comprises Azad Jammu Kashmir and Gilgit Baltistan. Local government is made up of various district, municipal and village councils.
2.25 Until 2018, a swathe of territory along the Afghanistan-Pakistan border known as the Federally Administered Tribal Areas (FATA) was governed under colonial-era laws called the Frontier Crime Regulations (FCR). These laws deprived residents of some fundamental rights, including freedom of movement and access to justice, and exposed them to collective punishment. The former FATA agencies are now part of Khyber Pakhtunkhwa province (see Pashtuns).
Corruption
2.28 Corruption, both petty and serious, is a major problem in Pakistan. It is driven by low public sector wages and a culture of nepotism, patronage and kinship ties that overrides loyalty to the state or respect for the law. Transparency International ranked Pakistan 124 out of 180 countries in its 2020 Corruption Perceptions Index. According to Transparency International’s Global Corruption Barometer, 40 per cent of
Pakistanis surveyed reported having paid a bribe to access public services in the 12 months prior to the survey, the worst result in the Asia-Pacific. This figure jumped to 68 per cent for people in contact with law courts and 75 per cent for people seeking help from the police. See also Prevalence of Fraud.2.29 High-level corruption is common in Pakistan, despite efforts to combat it. In April 2016, the ‘Panama Papers’ scandal led to the indictment and disqualification from office of then-Prime Minister Nawaz Sharif by the Pakistan Supreme Court. In 2020, former President Asif Ali Zardari was charged with money laundering and other crimes (he denies wrongdoing).
2.30 The National Accountability Bureau (NAB) is responsible for investigating corruption. Critics allege the NAB is politicised and pursues opposition figures while ignoring corruption within the ruling party.
SECURITY SITUATION
2.34 Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
2.35 Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e- Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. See also Armed groups.
2.36 Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
2.37 While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).
Armed groups
2.38 Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.
Domestic jihadist groups
2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In
October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.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. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. 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.
2.41 Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e- Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious
minorities including Christians, Hindus, and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan.Global jihadist groups
2.42 Islamic State (IS) and Al Qaeda both have a presence in Pakistan and have carried out attacks there, either directly or through proxies. Both groups are motivated to expand their influence and recruit fighters to their cause. They have targeted Pakistani military and government representatives, and religious and ethnic minorities, and also carried out anti-Western attacks. Besides LeJ, Al Qaeda has frequently collaborated with the TTP to carry out attacks. Al Qaeda’s capability in Pakistan has been reduced, but the group is still active. Two suspected Al Qaeda terrorists were reportedly killed in an encounter with police in Dera Ghazi Khan in November 2020. Recent IS attacks in Pakistan include the bombing of a mosque in Quetta in January 2020 that killed 15 people, and an attack in January 2021 that killed 11 Hazara miners in Balochistan. Many fighters for Islamic State in Khorasan Province (ISKP, the local branch of IS active in Pakistan and Afghanistan) are former TTP fighters, and the group has also carried out attacks in coordination with LeJ, including a 2016 attack on a Quetta police station.
Nationalist and ethnonationalist groups
2.43 India-focused Sunni extremist groups use Pakistan as a safe-haven, as well as for recruiting and fundraising. Their goal is to unite Indian-administered Kashmir with Pakistan under a radical interpretation of Islam. Since 2015 the capacity of these groups has been degraded by the Pakistani military, but they remain a threat to regional stability. These groups include Jaish-e-Mohammad (JeM) and Lashkar-e- Taiba (LeT). The former claimed responsibility for an IED attack that killed 12 soldiers in Pulwama in 2019, while the latter was responsible for the 2008 Mumbai terrorist attacks that killed 164 people. According to Indian media, these groups continue to carry out targeted attacks against civilians and security forces in Indian administered
Kashmir, with ‘about 15’ such killings in October-November 2021. These groups do not generally carry out attacks within Pakistan but may seek to kill or intimidate rivals or ex-members, or engage in other illegal activity.2.44 Ethnonationalist groups in Sindh and Balochistan carry out attacks against the Pakistani military and government, often causing civilian casualties. These include the Baloch Liberation Army and the Baloch Liberation Front, both of which carried out multiple deadly attacks in 2020, as well as the Sindhudesh Liberation Army. The goals of these groups include independence or greater autonomy for their provinces.
Civil disorder.2.45 Political and religious groups stage protests across the country. These can draw large crowds and turn violent. International events can prompt demonstrations or violent protests. Demonstrations relating to blasphemy and other religious issues can also draw wide – and rapid – support.
Tehreek-e-Labbaik Pakistan (TLP)
2.46 Tehreek-e-Labbaik Pakistan (TLP) is an influential Sunni extremist political party and sectarian religious movement founded by Khadim Hussain Rizvi in 2015. TLP rose to prominence in 2018 after organising massive street demonstrations to protest the acquittal of accused blasphemer Asia Bibi (see Blasphemy). Their goals include punishing ‘blasphemers’ (especially Shi’a and Ahmadis) and pursuing the imposition of Sharia law throughout Pakistan.
2.47 TLP has organised multiple large street protests and sit-ins, some of which have turned violent. They are also alleged to have been involved in extrajudicial killings and attempted assassinations. Their tactics have won concessions from the government, including the removal of Princeton economist Atif Mian from the Prime Minister’s Economic Advisory Council on the basis of his Ahmaddiya faith.
2.48 In April 2021, the government banned TLP and arrested its current leader, Saad Hussain Rizvi, in response to widespread violent protests demanding the expulsion of the French ambassador following the republication of cartoons of the prophet Mohammad in Charlie Hebdo, a French satirical magazine. Two police were killed and another 300 injured in the violence. Violence again broke out in November 2021when TLP began a march on Islamabad to demand Rizvi’s release and an overturn of the ban on their organisation. Seven police were killed, and dozens injured in clashes with protestors. The government capitulated, agreeing to reverse the ban and committing to release Rizvi.
Violent and organised crime
2.49 Violent crime occurs across Pakistan, including armed robbery, assault, carjacking and kidnapping. According to UN Office on Drugs and Crime data, Pakistan has a homicide rate of 3.1 murders per 100,000 population, about average for the region and lower than the global average of 6.1 murders per 100,000 population. Islamabad has a lower crime rate than other major cities due to its large security presence. Crime rates in Lahore and Karachi have also dropped in recent years due to police crackdowns. Violent crime in rural areas and in Gilgit- Baltistan is generally lower.
2.50 Criminal gangs exist in Pakistan. Their activities include drug trafficking, kidnapping, extortion, human trafficking, and child sexual exploitation. Some are politically connected.
Cross-border volatility
2.51 Violence occurs along Pakistan’s borders with India, Afghanistan and Iran, including mortar and artillery attacks, and gunfights. In 2020, the Indian Border Security Force clashed numerous times with the from India in 2020. There were 11 cross-border attacks from Afghanistan in 2020, involving the Taliban, Afghan National Army and Afghan border forces; 17 died and 18 were injured in these attacks. 2.50 With the Taliban seizing power in Afghanistan in August 2021, Pakistan bolstered security along its land border with Afghanistan. Pakistan has completed over 90 per cent of a border fence between the two countries, but its border with Afghanistan remains porous and susceptible to irregular migration and people smuggling, movement of terrorists and extremists, and transit of narcotics and other illicit goods. As the economic and human rights situation in Afghanistan deteriorates, further displacement of Afghans across the border to Pakistan is possible. Pakistan Army, and killed Pakistani civilians; 45 Pakistanis died and 204 were injured in cross- border attacks.
Pashtuns
3.13 The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns may also wear distinctive clothing, such as the red-and- black ‘Pashteen hat’, which has reportedly become a symbol of the Pashtun Tahafuz Movement Pashtun culture emphasises tribal and family relations, as well as customary norms known as Pashtunwali. Pashtuns speak an Eastern Iranian language called Pashto. Most, but not all, follow Sunni Islam.
3.14 There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis. Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
3.16 Until 2018, those living in the FATA were governed under separate, extra- constitutional arrangements, which denied them some fundamental rights (see Political System). Residents of Khyber Pakhtunkhwa, including the former FATA, now have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats under the Khyber Pakhtunkhwa Alternate Dispute Resolution Act (2020). In 2017 civilians living in the FATA were injured and lost access to land due to landmines left over from security operations.
3.17 Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating, which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan.
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.
TRIBUNAL’S REASONS FOR DECISION
Credibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[13] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[13] For example see, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Another (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pem Run Juan (1996) 40 ALD 445, Chand v Minister for Multicultural Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Minister for Immigration and Ethnic Affairs and McIllhaton v Guo Wei Rong and Pam Run Juan[14] Foster J stated that:[15]
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[14] (1996) 40 ALD 445
[15] At [482]
Numerous decisions have endorsed the principle that benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Lian & Others,[16] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[17]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the fact (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
[16] (1996) 185 CLR 259.
[17] At [25][
The Tribunal is not required to accept uncritically any, or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obligated to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:
Where there is conflicting evidence from different sources, questions of credit of witnesses may be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[18]
[18] [1997] FCA 1198 accessed 15 February 2017.
Nevertheless, as Burchett J counselled,[19]it is necessary to:
…understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[20] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991_Butterworths) at pp.84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[21] Nor, is there any rule that a decision-maker must hold a “positive state of disbelief…” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[22] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[23] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[24]
…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that the Applicant for refugee status is, on one view of events, engaged in an often-desperate battle for freedom, if not life itself.
[20] see, in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167, at accessed 15 February 2017.
[21] see, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
[24] (1999) 197 CLR 510 at [191].
The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim a satisfied. The Tribunal notes that in lyer [25] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go further in its analysis of the basis of the claim. This decision was affirmed on appeal.[26]
[25] Iyer v MIMA [2000] FCA 52 (see, the judgement of O’Connor J, 4 February 2000), at [32]-[34].
[26] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
The Tribunal notes that if it makes findings that the applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. On the other hand, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is subjective fear.[27]
[27] see, SAAD v MIMA [2003] FCAFC 65 (Cooper, Carr and Finklestein JJ, 11 April 2003) at [38] and see also, Selliah v MIMA [1999] FCA 615 at [40].
Consideration of the applicant’s claims
In essence the applicant claims to fear persecution involving serious harm from the Pakistan Taliban due to an actual or imputed political opinion of opposition, due to his status and work as English-language interpreter for the [Country 3] Army (Peacekeeping) in Afghanistan, and his wider anti-Taliban activities, should he return to his home area in [….]; and that he remained at a real chance or a real risk of harm based on his ethnicity, his political opinion – both imputed and actual in the context of his personal circumstances.
Generally speaking, the Tribunal found the applicant to be a largely credible witness and found his oral evidence was consistent with his written statements and supporting documentation. The Tribunal most accepts past events and the critical aspects about his ethnicity, religion and family circumstances and composition.
Background – the instability and conflict in Waziristan, Pakistan
The Tribunal accepts the applicant was born in Karachi, he was raised and resided in Waziristan, Pakistan. It continues to be the place where the applicant’s wife and children reside.
North Waziristan comprises the area west and south-west of Khyber Pakhtunkhwa between the Kurram River (Tochi) to the north and the Gomal River to the south. Miramshah is the district headquarter of North Waziristan. North Waziristan is divided into three subdivisions Mirali, Miran Shah, and Razmak. For the purposes of this decision, the Tribunal considers that the wider district of Waziristan and the neighbouring districts of the of the Khyber Pakhtunkhwa Tribal Districts of the Khyber Pakhtunkhwa Province to be the applicant’s home area for the purposes of this decision.
The British entered Waziristan in 1894. After the British military operations in 1984-95, Waziristan was divided into two “agencies”, North Waziristan and South Waziristan. The two parts have quite distinct characteristics, though both are subgroups of the Wazir tribe, after which the region is named,[28] and speak a common Waziristani dialect. They have a fame reputation as formidable warriors, and are known for their hospitality. The tribes are divided into sub-tribes governed by male village elders who meet in a tribal jirga. Socially and religiously, Waziristan is and extremely conservative area. In 1910, North Waziristan Agency was constituted as a full-fledged agency at Miramshah. It is inhabited by the Wazir and Dawar tribes.
[28] “Tribe: Ahmadzi Wazir’ (PDF) Naval Postgraduate School.
In 2018, the FATA was merged with the neighbouring Khyber Pakhtunkhwa Province (KPP) which had been known as the North-West Frontier Province until April 2010. Peshawar, with more than 2 million people, is the capital and the largest city in KPP.
Extremist violence in KP (the Overall trend): In January 2021 PIPS reported that in 2020: different militant, nationalist/ insurgent and violent sectarian groups perpetrated a total of 146 terrorist attacks across Pakistan resulting in 220 deaths. These attacks caused casualties to security and law enforcement personnel (97 dead and 113 injured), and civilians (94 dead and 372 injured), while militants (15 dead and four injured) also casualties. Compared to 2019 this amounted to a 36 percent decline in the number of attacks, and a 38 percent decline in the number of deaths from such attacks.[29]
[29] PIPS, “Pakistan Security Report 2020”, January 2021, 20210630123526, pp. 17.
Who was targeted? In January 2021 PIPS reported that in 2020:
§Security forces and law-enforcement agencies personnel were targeted in 84 attacks (or 58 percent of the total number of attacks) and these caused 133 deaths and injury to 215 other persons (these figures would appear to include civilian bystanders harmed in such attacks).
§Civilians were the apparent targets of 29 attacks (20 percent), and these attacks killed 19 persons and injured 138 others.
§A combined total of eight attacks targeted Shi’a and Sunni community members, claiming 18 lives, and another three attacks hit worship places and madrassas killing 24 people.
§Six attacks targeted tribal elders and four attacks hit political leaders and workers. Health workers and railway assets were targeted in two instances. A gas pipeline, private property, a government office, the media, foreign nationals, NATO supply vehicles, and a development project, were each targeted in one instance.[30]
[30] Ibid at pp. 18.
Which groups perpetrate these attacks? In January 2021 PIPS reported that in 2020: religiously inspired militant groups (such as the TTP, its splinter groups Hizbul Ahrar and Jamaatul Ahrar, other local Taliban groups, and also Islamic State affiliates) perpetrated 95 terrorist attacks (compared to 158 in 2019). In 2020 these attacks killed 140 people and injured 344 others. In 2020 Baloch and Sindhi nationalist insurgent groups carried out 44 attacks (compared to 57 such attacks in 2019) and these attacks killed 71 people and injured 189 others. In 2020 as many as seven of the reported terrorist attacks were sectarian-related (half from such attacks in 2019) and these killed nine people and injured 14 others.[31]
[31] Ibid at pp. 17
In January 2021 PIPS reported that continuous anti-militant operational and surveillance campaigns by security forces and police counterterrorism departments, as well as some counter-extremism actions taken under the National Action Plan, have apparently helped sustain that declining trend from 2013 onwards. However, these plummeting numbers do not suggest, in any way, that the threat of terrorism has been completely eliminated. Certainly, most terrorist groups have been weakened but they are still present in physical and virtual spaces.[32]
[32] PIPS, "Pakistan Security Report 2019", January 2020, 20200114102703, p.11.
FRC on the former FATA
The FATA Research Centre (FRC) states that it focuses its research on the former FATA areas (which it refers to as the KP tribal districts, or KPTDs, or as the Newly Merged Districts, or NMDs) and that the objective of its annual reporting is to outline and categorize all forms of violent extremism, and the role of terrorist groups and the scale of terrorist activities in the area.
The overall trend: In January 2021 FRC reported that: the security situation continued to deteriorate in the four out of the seven KPTDs during the year 2020. An upward trend in militancy related incidents and resultant casualties was observed in Bajaur, Khyber, North Waziristan and South Waziristan districts of KPTDs in the reporting year. Overall 29 percent increase in militancy incidents and 39 percent in causality index was observed in the year 2020 as compared to the preceding year. A total of 169 violent incidents (137 militancy and 32 counter-militancy) were recorded during the year 2020 as compared to 160 such incidents (106 terrorism and 54 counter-militancy) in the year 2019.[33]
[33] FRC, "KP Tribal Districts Annual Security Report 2020", 7 January 2021, 20210113125205, p.1.
At the district level: According to the FRC of the 169 violent/major incidents which occurred in the tribal districts in 2020, and of the 106 which occurred in 2019, most occurred in North Waziristan (64 in 2020; and 45 in 2019), following by South Waziristan (38 in 2020; and 27 in 2019), Bajaur (36 in 2020; and 15 in 2019), and Khyber (22 in 2020; and 12 in 2019), while some incidents also occurred in Orakzai (4 in 2020; and 1 in 2019), Kurram (3 in 2020; and zero in 2019), and Mohmand (2 in 2020; and 6 in 2019). According to the FRC: The main reason for the high number of terrorism incidents in North Waziristan during 2020 was an increase in the target killing of civilians, IED attacks, and ambush attacks carried out by militants belonging to Tehreek-e-Taliban Pakistan.[34]
[34] FRC, "KP Tribal Districts Annual Security Report 2020", 7 January 2021, 20210113125205, pp.3, 13.
According to the FRC: Although only three militancy related incidents were reported from Kurram district; nevertheless, the security situation in the district remained volatile during the outgoing year due to the growing number of land disputes in the district. For instance, in May 2020, fierce clashes erupted between Parachamkani tribe and Balishkhel tribes in Kurram tribal district. These clashes resulted in 54 casualties (14 killings and 40 injuries).[35]According to the FRC: Extremist elements in the districts are using the land disputes to promote sectarianism in the district; and: There were reports that extremist groups distributed pamphlet among Sunni community in Kurram to boycott social and business relations with the Shia community in the district.80 The FRC opined that: Given the sectarian nature of conflict in Kurram and Orakzai, disputes over the ownership of land can potentially lead to another wave of violent armed conflict on sectarian grounds. Besides Kurram, land disputes also reported from all the other six districts of the newly merged districts (NMDs). According to FRC data base, 158 tribesmen lost their lives in 15 incidents related to dispute of the ownership of land in the NMDs.[36]
[35] FRC, "KP Tribal Districts Annual Security Report 2020", 7 January 2021, 20210113125205, p.4.
[36] FRC, "KP Tribal Districts Annual Security Report 2020", 7 January 2021, 20210113125205, p.19.
The FRC also expressed concerns about Kurram in its annual report of 2019 (though at that time the FRC seemed more concerned by extremism in neighbouring areas than by local land disputes). In January 2020 the FRC reported of 2019 that: Kurram tribal district largely remained peaceful, and had seen a remarkable decrease in violent incidents and resultant casualties; and that during 2019 it had seen only one terrorist incident with this being an ambush attack by militants on security forces. Even so, in January 2020 FRC took the view that the district was highly vulnerable to terrorist attacks due to its proximity North Waziristan, and to the volatile Afghanistan region of Nangarhar, and to the history of sectarian conflict in the region.[37]
[37] FRC, "KP Tribal Districts Annual Security Report 2019", 13 January 2020, 20200122123739, pp.8-9.
Which groups perpetrate these attacks? According to the FRC: the surge in militancy related incidents in the NMDs during year 2020 illustrates that the militants belonging to Tehreek-e-Taliban are returning back to the former tribal areas and are trying to regroup in areas close to the Pak-Afghan border, particularly in North and South Waziristan. The reunification of various groups under the banner of Tehreek-e-Taliban (TTP) in August 2020 in particular has significantly increased their presence and operational capacity in KPTDs.[38]
[38] FRC, "KP Tribal Districts Annual Security Report 2020", 7 January 2021, 20210113125205, p.14.
The FRC has opined that: The current wave of terrorist attacks signify that TTP militants are again not only trying to contest the government control over the newly merged districts, but are trying to expand their activities and destabilize hitherto peaceful adjacent districts of KP province.[39]
[39] FRC, "KP Tribal Districts Annual Security Report 2020", 7 January 2021, 20210113125205, p.18.
Who has been targeted? FRC observed of 2020 in the KPTDs that most militancy incidents targeted civilians (unfortunately the FRC reports do not clarify how their reporting defines “civilian” status, such that it is unclear whether this does or does not include persons such as police and paramilitary forces). Nonetheless, according to the FRC security forces remained the prime target of militants (in that there were more casualties from such attacks among security forces). According to the FRC: of a total 137 militancy incidents in 2020, 86 militancy attacks (51 percent) targeted ordinary civilians while 54 attacks (32 percent) were directed against security forces in the area.[40] According to the FRC: of the total casualties, 146 casualties (65 killed and 81 injured) were that of security forces which accounted for 38 percent of the overall casualties; while: civilians stood second with 143 casualties (80 killed and 63 injured).[41]
[40] Ibid at pp. 1-2
[41] FRC, “KP Tribal District Annual Security Report 2020”, 7 January 2021, 202113125205, p.2
According to the FRC: the growing number of target killings and IED attacks by militants, particularly in Khyber, Bajaur, North and South Waziristan districts were the main causes of the high number of civilian casualties during the year 2020. Comparatively, 62 percent increase in civilian casualties was observed in the reporting year as compared to the year 2019.
The State response: the FRC reports that to counter the rising tide of militancy incidents in the KPTDs, Pakistani security forces as part of ongoing military operation, code named Radd-ul-Fasad conducted intelligence-based operations (IBOs) across the newly merged district during the year 2020. In total 28 IBOs were recorded in the year 2020. Though IBOs were conducted in all the tribal districts of KP, the North Waziristan, South Waziristan, Khyber and Bajaur remained the prime focus of these counter-terrorist operations.[42] In 28 IOBs some 81 militants were killed, 20 were injured and 21 others were captured. On 8 September 2020, Waseem Zakeria, the mastermind of militant attacks along with four accomplices were killed during an intelligence operation in North Waziristan tribal district. According to the Pakistan Army the deceased terrorist. Waseem Zakeria, was the mastermind of 30 attacks, including targeted killing of government officials and security forces personnel.[43] FRC has also observed that: although the high number of militant casualties during IOBs in the year 2020, illustrates effectiveness of intelligence-based operations; nevertheless, it also shows the growing presence of the Tehreek-e-Taliban in the newly merged districts.[44]
[42] Ibid at p.2
[43] Ibid at p. 3
[44] FRC, “KP Tribal Districts Annual Security Report 2020”, 7 January 2021, 20210113125205, at p. 3
The Tribunal accepts that the applicant is a Pashtun from Waziristan, is of Sunni Muslim faith and a Pashtun. The Tribunal also accepts that the applicant did work as an English-language translator for the [Country 3] Army in Afghanistan translating Pashtu and Urdu to English for approximately six months and this work became known to local militants which included the local Taliban. The Tribunal also accepts that because of this employment with foreign military closely working with the US-NATO forces in Afghanistan, the applicant had cause to fear retribution and harm from the Taliban and other extremist groups which operate in his home area and now (as the country information reports) throughout Pakistan.
The Tribunal also accepts that the applicant’s family has not been the subject of retaliatory attacks or harm because he has not returned to his home region of Waziristan. Moreover, the Tribunal accepts (on the evidence submitted) [45] that his family has received continued approaches from the local Taliban sympathisers and possibly by the local Taliban - questions concerning the applicant’s whereabouts and this is indicative that the applicant’s past as a translator for Western forces in Afghanistan continues to be an aspect of on-going interest. Further, the Tribunal noted the evidence of the applicant’s brother, (signed, undated but unsworn written statement)[46] where the applicant’s brother recollects the incident which occurred in 2019, when his brother ‘kidnapped and held in captivity for approximately twenty-five days by the Taliban.’ The Tribunal noted the following from the applicant’s brother’s written statement:
“Approximately six weeks before my departure from Pakistan, I was coming home from school when I was stopped by a group of five men who had a truck. I was blindfolded and forced into the truck. I was prettified.
“When I asked the men why they were doing this to me, they advised it was because my brother supported the infidels and they wanted me to demonstrate I did not support the infidels, by supporting them.
“After travelling for quite some time in the truck, the men pulled over. They forced me out of the truck and told me I must pray with them. I was then forced back in the truck and taken to a camp. Upon arrival, I had to wait in a tent. There were other people in neighbouring tents.
… after I was questioned about my brother [name mentioned] and whether I assisted the foreigners, I was taken to a room where I was locked in….
I was kept at the camp for about 25 days. While I was there, I was regularly interrogated, taunted and physically assaulted. I was told they were aware my brother worked for the foreigners.
… I was asked if my family and I also supported the foreigners…
… After approximately 25 days, I was taken by a couple of men to the market. While there, I escaped. I went home and then kept a low profile until I could flee Pakistan.”
[45] see, AAT File – written submission by Applicant’s legal Counsel, AUM Lawyers dated 22 August 2023.
[46] see, AAT File – written statement by Applicant’s brother now living in [Country 2].
The Tribunal noted and accepts that the applicant’s brother, following his forced detention by local militants managed to allude their attention and later found the means to leave [Pakistan]. Indeed, the Tribunal was provided as evidence of the applicant’s brother’s asylum protection grant having been provided to him by the Republic of [Country 2].[47]
[47] see, AAT File, [Country 2] grant of Protection visa & asylum (Applicant’s brother) with translation attached.
Country information indicates that the campaign against the Taliban and its supporters in the Swat and other areas of Khyber Pakhtunkhwa Province (which includes North and South Waziristan) has been brutal, with atrocities committed by the Army. According to a 2009 report, an estimated 300 to 400 corpses of suspected Taliban militants, last seen alive when taken away by the Army, were found on street corners, bridges or outside homes in the Swat and other areas of the Province. It was unclear whether the executions were perpetrated by the Army, local tribal militias or other Taliban insurgents.[48] According to another 2009 report, “scores, perhaps hundreds of bodies of tortured militants were found on the roads of Mingora (a major centre) and in rural areas that were former militant strongholds in the aftermath of the Army offensive, with local residents blaming the military.[49]
Attempts to explain and mediate resolution through village elders with the local Taliban and his work as a Western translator
[48] ‘The law in whose hands?’, The Economist, 1 October 2009.
[49] Perlez, J & Shah, P. ‘Pakistan Army Said to Be Linked to Swat Killings’, The New York Times, 14 September 2009 (CISNET Pakistan CX233452)
Though, the applicant tried to mediate an understanding through his village’s elders (council) concerning his previous involvement with the [Country 3] military in Afghanistan that is, to explain his involvement as being more a professional basis and not for any anti-Taliban or political reasons or opposition, these ended in failure. The council (elders) informing the applicant that the Taliban ‘had ordered the Mujahedeen to kill him if he ever returned to North Waziristan’. The Tribunal accepts that having been told that the applicant was considered persona non granta by the Taliban (and militants in Waziristan) he had no alternative open to him to take except to remain in Karachi and eventually when ready to leave Pakistan, as he later did.
It is apparent from the country information already referenced above, that the situation in Pakistan has continued to deteriorate following the resurgence of the Taliban in Afghanistan and given the applicant’s personal circumstances, it is likely (and the Tribunal agrees with the submissions made) that the applicant would continue to be considered a sympathiser of the West and of foreign (Western) forces given his previous role with the [Country 3] Army and his work as a local translator.
The applicant’s portrayal of himself as an informant for foreign military and a sympathiser of the West and its interests is consistent with relevant country information considered by the Tribunal.
The following extracts from a report by Dr Claude Rakisits highlights that there has been an increase in attacks by the Tehreek-e-Taliban Pakistan (TTP) in Pakistan since the Taliban took power in Afghanistan:[50]
On 30 January, over 100 people were killed and over 200 others were injured in a terrorist attack in Peshawar, Pakistan. The mosque where the attack occurred was located in the most secure zone of the city, where the police and other security agencies are located. This is one of the deadliest attacks to hit the city in many years. It was claimed by the Mohmand chapter of the banned Tehreek-i-Taliban Pakistan (TTP). However, later TTP Central denied any involvement in the act. Most of the victims were police officers. The TTP — a US State Department-designated Foreign Terrorist Organization — was also responsible for the massacre of over 140 people, including 132 children, at a school in that same city in December 2014….Since the Taliban took over in Afghanistan in August 2021, TTP attacks have increased by 84 percent. This is principally because the TTP, which is ideologically, tribally, and operationally closely affiliated with the Taliban, has rear bases in Afghanistan from where it has been able to launch attacks back into Pakistan. Even though the Taliban has condemned the attack, no one is fooled by those words. Since the Taliban took over, Pakistan has been demanding that the Taliban shut down the TTP camps in Afghanistan with its estimated 6000 fighters. The Taliban has refused to oblige, and it is unlikely that they will do so in the near future. This confirms that Pakistan’s support for the return of the Taliban in Kabul was always a bad idea.
[50] “Pakistan, Terror and Politics: The 30 January Peshawar Terrorist Attack’, Dr Claude Rakisits, Australian Institute of International Affairs, 7 February 2023,
The same report also notes that the TTP remain prominent particularly in the border area between Afghanistan and Pakistan, close to the applicant’s home area:[51]
In an attempt to halt the TTP attacks, the previous government of Imran Khan entered into negotiations with the TTP in October 2021. These were facilitated by the Taliban and a ceasefire was implemented. However, these negotiations made no progress and ended in November 2022, when the TTP called off the ceasefire. While there were no terrorist attacks during the talks, the time wasted in negotiations gave the TPP an invaluable opportunity to regroup in different parts of the country. For example, a day after the Peshawar attack, a police station in Mianwali, Punjab, came under a gun attack by heavily armed TTP fighters. While the attack was repulsed, it illustrates the extent of the TTP’s present reach along areas of the Afghan/Pakistan border. To date, all negotiations with local terrorist groups have failed. With terrorists like the TPP becoming more emboldened, and the attacks larger and more sophisticated, the call for a military solution has become louder. However, given the nature of counterterrorism and the difficult terrain the TTP operates in, it’s unlikely that the current prime minister, Shehbaz Sharif, will be able to show any real progress on this front, at least over the next six months. Accordingly, there’s a very good chance that Imran Khan will have further increased his popularity with this latest terrorist act. His party, the Pakistan Tehreek-e-Insaf, has won most of the provincial by-elections since being ousted from office in April 2022.
[51] Ibid
Moreover, the nature of extremist groups in Pakistan and how following the resurgence of the Taliban in Afghanistan, Pakistan has experienced an increase in terrorist attacks throughout the country:[52]
Greatly emboldened by the Afghan Taliban’s rise to power, the Pakistani Taliban, or Tehrik-e Taliban Pakistan (TTP), have declared the former as their role model and launched an escalating terror campaign inside Pakistan from its base in North Waziristan. On Nov. 28, the group ended its five-month-long ceasefire with the government, and on Nov. 30 a suicide bomber from the TTP blew himself up near a police truck in the restive Balochistan Province, killing at least three and injuring 28 others, including 20 security personnel. Claiming responsibility for the attack, the TTP justified it as retaliation for the killing of one of its senior commanders, Abdul Wali, also known as Omar Khalid Khorasani, in Afghanistan in August. Now that the TTP has officially ended its ceasefire, it is expected to carry out lethal attacks in areas where it has maintained networks. The end of the controversial ceasefire also comes at a time of transition for Pakistan’s military, with Gen. Asim Munir Ahmed succeeding Gen. Qamar Javed Bajwa as Army chief of staff. It remains to be seen what Munir’s policy will be regarding peace talks with the TTP.
Following the upsurge in Islamist militancy in tribal areas, Pakistan’s security forces are facing direct attacks from the TTP, leading the government to complain about terrorist safe havens in Afghanistan. Indeed, the alliance between the Afghan and Pakistani Taliban seems stronger than ever and there are signs of integration across the Durand Line. Not ready to accept Pakistan’s border-fencing activities, which are viewed as “one-sided,” “illegitimate,” and an attempt to change the status quo ante, Taliban fighters are reportedly removing the barbed-wire fence at many places along the Durand Line. According to one Pakistani think-tank, the county has seen a 50% spike in terrorist attacks since the Taliban returned to power in Afghanistan, underlining the fast-deteriorating security situation.
Pakistan’s borderlands are witnessing an alarming increase in the number of extortions, kidnappings for ransom, and other forms of racketeering. Wealthy residents and local lawmakers alike are being blackmailed to pay extortion money to the TTP, which enjoy freedom of action in Afghanistan. There has been a significant rise in the TTP’s extortion activities in Karachi in the past few months.
[52] MEI – Middle East Institute, Pakistan/Afghan Taliban relations face mounting challenges, 2 December 2022, htttps://
Publicly available information (recently available) highlights the severe consequences of the recent resurgence of the TTP in Pakistan, and notes the increase in attacks in North Waziristan, with ongoing clashes between government forces and the TPP:[53]
The reappearance of the TTP in Pakistan has terrified locals.
During its brutal rule, the militants imposed their extremist version of Islam in areas that they controlled in Khyber Pakhtunkhwa, severely curbing freedoms and rights, including those of women. Targeted killings, bomb attacks, extortion, and harassment dominated daily life in some areas
.
The Pakistani military campaigns that pushed out the TTP across the border took a heavy toll on locals, killing thousands of civilians, uprooting millions, and causing widescale destruction.
Shafqatullah and his family were forced to flee their home in the district of North Waziristan, a former stronghold of the TTP, in 2014. His family, like many others from the region, became internal refugees and lived in poverty for years.“We returned to our area in 2017 with the hope that the situation will get better,” said the father of four. “But things are heading in the wrong direction again. We fear that we will be displaced again.” Shafqatullah said he is planning to move his family and electrical appliances business to the relative safety of Bannu.
[53] Radio Free Europe/Radio Liberty, ‘Clouds of War Are Gathering’: Pakistanis Brace For Bloody Year As TTP Ends Cease-Fire, Intensifies Attacks, 31 December 2022,
Independent information before the Tribunal also indicates that despite setbacks for the Taliban in many areas in the Khyber Province, the nature of attacks in the applicant’s home area of Waziristan have increased in violence and targeted attacks:[54]
This year has seen a marked uptick in violence in the South Waziristan and adjoining North Waziristan districts – once the birthplace and headquarters of the Tehreek-e-Taliban Pakistan (TTP, also known as the Pakistani Taliban) – and with the Afghan Taliban now controlling neighbouring Afghanistan, which borders both districts, residents of these areas say they fear a return to life under the TTP.
The situation is complex, analysts and residents say, and involves a resurgence of the TTP and its allied local militias, as well as Pakistani government-backed “surrendered” Taliban fighters, all engaged in targeted killings of civilians, extortion, tribal councils and attacks against security forces.
Since January, at least 69 people have been killed in 37 attacks across South and North Waziristan districts, according to data from the South Asia Terrorism Portal (SATP).
The attacks have included targeted killings of anti-Taliban civilians, extortion-related killings, check post raids and numerous improvised explosive device (IED) attacks targeting security forces, who account for 84 percent of all reported casualties in these areas.
Pakistan’s military attributes the rise in violence to “the evolving situation in Afghanistan”, according to a security source familiar with the matter, who spoke on condition of anonymity given the sensitivity of the subject.
[54] Al Jazeera, In Pakistan’s borderlands, Taliban quietly expanding influence, 8 December 2021,
The same article notes the significant presence of the Taliban in North Waziristan and the devastating impacts this has had on civilians residing in the area:[55]
In neighbouring North Waziristan, the security situation appears to be even worse. Since January, at least 45 people have been killed in 25 attacks in the district, according to SATP data, with a mix of armed actors active in the area, including the TTP and local militias led by commanders Hafiz Gul Bahadur, Sadiq Noor, Aleem Khan and others.
“After the collapse of Kabul, they have gotten internal strength and confidence, and they have come onto the front foot,” says Mohsin Dawar, North Waziristan’s sole member of Pakistan’s lower house of parliament, who travels often to the district.
“They had quite a large presence before as well, and they were moving around as well, but it was done in a certain [hidden] way. Now they have become very visible again.” Asked what kind of activities these armed actors engage in, Dawar is emphatic:
“Everything. There is extortion, taking money from contractors or anyone who has any business there. There are abductions as well [and] there are killings,” he says. In one case in early November, Dawar narrates, local tribal elder Malik Laik, from the Hamzoni area of North Waziristan, was dragged out of his home and beheaded by a local Taliban-allied militia. “They kill brutally in order to spread fear,” says Dawar.
That incident, like many others in the Waziristan districts, which are entirely controlled by the Pakistani military since a 2014 operation to drive out the Taliban and its allies from those areas into neighbouring Afghanistan, was never reported in Pakistan’s mainstream press.
“Statistically, it is quite difficult to gauge what is happening there, because we have only one official source from where information is coming, this is ISPR [the military’s press wing],” says Amir Rana, a security analyst and director of the Pakistan Institute of Peace Studies (PIPS). “Specifically, the TTP and other militant groups are also targeting civil society and elders, and the reporting of these attacks are still missing.
[55] Ibid
119. The Tribunal notes that the US Government's travel advisory indicates that while threats still exist, terrorist attacks are rare in Islamabad where there are greater security resources and infrastructure, and security forces are more readily able to respond to an emergency compared to other areas of the country.
120. After carefully considering all the available evidence and the relevant country information, the Tribunal finds that outside of KP, where the applicant has no family support, he may well be treated with suspicion and/or hostility because of his Pashtun ethnicity, making it difficult for him to find accommodation and employment. The Tribunal also accepts there is a real chance that he will be expected to find accommodation outside of KP with his wife and dependent children. This would indicate the burden of care and meeting the costs of living for his family will overwhelming fall upon his shoulders.
121. The country information cited above indicates that official and societal discrimination faced by Pashtuns seeking to relocate outside of KP can include ethnic profiling, harassment by security officials, demands for large bribes under threat of being listed as a terrorist, and blocking of CNICS/SNICS.
122. The applicant also has very limited skills and education suitable for finding employment in metropoles like Islamabad, Rawalpindi, Lahore, Karachi, Faisalabad, Hyderabad, and Gujranwala. His work experience has historically been as a farmer. He has no functional literacy in Urdu or English and has only worked in low skilled employment while in Australia. While around 64 per cent of the total Pakistani population is rural, there is only a remote and not a real chance Pashto-speaking Pakistani internally displaced persons can successfully work among farming communities dominated by non-Pashto-speaking populations which have overstretched and poorly funded basic services. Poverty rates in rural areas of Pakistan, according to the World Bank estimates, is more than twice as high (30.7 per cent) than in urban areas (12.5 per cent).[66]
123. The Tribunal considers that, in the applicant's particular individual and familial circumstances, the impact of the official and societal discrimination and harassment that he could face would amount to serious harm in that it could threaten his liberty and cause him significant economic hardship that threatens his capacity to subsist.
124. The Tribunal concludes, therefore, that the applicant faces a real chance of suffering persecution involving serious harm anywhere in Pakistan, based on a cumulative consideration of the risks of serious harm he faces because of his actual and imputed anti- TPP political opinion in combination with his membership of a particular social group, as a translator for western military in Afghanistan and his ethnicity.
Availability of State protection
125. While DFAT comments that Pakistan's formal legal framework provides for state protection of people's property, lives, places of worship and religious beliefs, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. DFAT comments that police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Police work in Pakistan is poorly paid and dangerous, and individual police officers often augment their salaries with bribes. The public perception of police is generally poor, although it has reportedly improved in recent years.
126. DFAT indicates that despite measures introduced to curb violence across the country under the National Action Plan (NAP) - strengthened powers for military and paramilitary security forces and the establishment of military courts - successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses, and their families.
[66] Poverty & Equity Brief: South Asia: Pakistan, April 2019,
In March 2022, leaders of the non-violent Pashtun Tahaffuz Movement were sentenced to life imprisonment on ‘terrorism’ related charges. Voice of America reported on the trials as follows:[67]
[67] VOA, ‘Pashtun Activists Decry Pakistan’s Anti-Terror Trials,’ 4 March 2022 available
/6470814.html.
Pakistani authorities say their country has been a victim of terrorism, and that thousands of
Pakistani citizens, including military personnel, have died in terrorist attacks over the past two
decades.Pakistani military officials say they’re still actively fighting terrorists.
“Their desperate attempts for revival won’t be allowed to succeed,” the Pakistani chief of army
staff reiterated. “We will eliminate all remnants of terrorists, their abettors & accomplices
whatever is the cost,” a spokesperson for the Pakistani army said in a tweet February 9.Critics, however, accuse Pakistan’s powerful military of covert involvement with militant
groups that conduct terrorist operations in India and Afghanistan.
There are also concerns that the military has been abusing anti-terror laws to stifle legitimate
dissent.“Civil and political dissidence is not terrorism,” Afrasiab Khattak, a former Pakistani senator,
told VOA, adding that the government should stop treating political activists, particularly
Pashtun and Baloch minority rights activists who criticize state institutions, as terrorists.
Human rights organization also say minorities in Pakistan are subjected to discrimination and persecution with the government failing to provide protection.
128. The Tribunal noted from the country information that there is an increasing willingness (by the Pakistani state authorities) to employ draconian ‘anti-terrorism’ and ‘sedition laws’ used against ethnic Pashtuns in urban capitals, as the state authorities’ attempt to take a public stance against any forms of militancy.
129. There is also a disturbing trend from nationalist movements against Pashto-speaking Pakistanis in areas outside of KP. In June 2022, ethnic riots broke out throughout Sindh with Sindhi nationalists and their allies targeting Pashtun residents and labourers:[68]
[68] DAWN, ‘Calls for Calm as Ethnic Strife Threatens Peace in Sindh,’ 15 July 2022 available
calls came as several incidents of violence were reported in the province on Thursday,
where shops and hotels owned by Pashtuns were attacked and forcefully closed, allegedly by
Sindhi nationalists…Meanwhile, hotels and shops owned by Pashtuns were attacked and forcefully shut in Dadu,
Sehwan, Khairpur Nathan Shah, Kotri and Jamshoro.Armed men on motorbikes attacked three hotels in Kotri. In retaliation, the owners pelted
stones leaving two men, identified as Uzair Soomro and Sadaqat Ali, injured. A heavy police
contingent reached the spot and shifted the injured to Kotri’s District Headquarters Hospital.
Police have also claimed the arrest of seven activists of nationalist parties in Dadu who were
forcefully closing the shops.In the Sakrand area, activists of nationalist parties blocked a section of N5 National Highway
at Noonari CNG station Thursday night following reports of disturbances and maltreatment of
families by miscreants at Karachi’s Sohrab Goth area.The protest led to long queues of vehicles including buses and heavy vehicles.
Jeay Sindh Qaumi Mahaz-Bashir (JSQM-B) leader Dr Niaz Kalani told Dawn that such
protests would also be held in Moro, Ubauro and other areas.Pashtuns make up a large majority of drivers who drive trucks and goods carriers, moving
cargo from ports in Karachi to other parts of the country. A large number of these trucks move on highways in Sindh to enter Punjab and travel further north towards Khyber Pakhtunkhwa.130. The available country information indicates that there is a strong element of anti-Pashtun chauvinism throughout areas not dominated by Pashto-speaking peoples within Pakistan, and this appears to be reflected in tolerance of anti-Pashto protests and the willingness of the authorities to single out Pashtun-led protests movements as threats against state security. This trend is exacerbated by the economic downturn in Pakistan whereby its economy has weathered localised lockdowns arising from pandemic restrictions, national political uncertainty, double digit inflation and tightening global financing conditions. The August 2021 takeover by the Pashtun-dominated Taliban of neighbouring Afghanistan has also worsened fears of Pashtuns seeking residency outside of KP, as exemplified by the former Prime Minister Imran Khan’s public remarks in October 2021 suggesting that all Pashtuns were ‘sympathetic’ to the Afghan Taliban.[69]
[69] RFERL/Gandhara, ‘Pakistan’s Imran Khan Under Fire For Claiming Pashtuns are TalibanKhan’s remarks on Pashtuns and the furore surrounding them have only intensified since the
Afghan Taliban, a militant group consisting mainly of Pashtuns, seized power in Afghanistan.
On October 11, Khan claimed that many Pakistani Pashtuns support the Afghan Taliban due
to ethnic affiliation.“The Pashtuns on this side [Pakistan] were completely sympathetic with the [Taliban]
Pashtuns [in Afghanistan] -- not because of the religious ideology but because of Pashtun
ethnicity and nationality, which is very strong,” Khan told the Middle East Eye, a digital news
organization based in Britain.Khan’s remarks prompted outrage among many Pashtuns, who accused the prime minister of spreading misinformation and rubbing salt on the wounds of the community in Pakistan.
131. The Tribunal finds that the level of protection available to the applicant, from the Pakistani authorities outside of Pashtun-dominated KP, does not meet the level of protection whereby the applicant can access protection in his receiving country that is durable, and where the protection consists of an appropriate criminal law, a reasonably effective police force an impartial judicial system, as required by s 5LA(2). Therefore, the Tribunal finds that the applicant faces a real chance of persecution due to his actual and imputed opposition to the TPP and other Sunni militant groups. The chance of serious harm by the TTP, Sunni militants and/or political actors hostile to displaced Pashtuns from KP is heightened by the applicant’s illiteracy and economic hardship.
132. Having considered that the applicant will be persecuted throughout his home state of Khyber Pakhtunkhwa Province and the country information about the rest of Pakistan, the Tribunal accordingly does accept the applicant faces a real chance of serious harm throughout the rest of Pakistan, pursuant to s 5J(1)(a), (b) and (c) and s 5J(2).
133. The applicant, therefore, has met the definition of a refugee in s 5H(1) as an applicant with a nationality must, owing to a well-founded fear of persecution, be unable or unwilling to avail him or herself of the protection of his or her country of nationality.
134. In summary, the Tribunal accepts the applicant has a well-founded fear of persecution based for a reason mentioned under s 5J(1)(a), should he return to Pakistan now or in the reasonably foreseeable future and meets the criterion of s 36(2)(a).
135. As mentioned above, the claimant does not have a right to enter and reside, either temporarily or permanently, a third country for the purposes of s.36(3).
Conclusion
136. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
137. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Vlahos
MemberATTACHMENT - 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.
…
15 October 2021 availableDetails
- AGLC
- 1807065 (Refugee) [2023] AATA 4368
- Case
- [2023] AATA 4368
- Decision Date
CaseChat Overview and Summary
The applicant, a Pashtun male from Pakistan, sought a protection visa. The dispute concerned whether he faced a real chance of persecution involving serious harm if returned to Pakistan, primarily due to his past work as a translator for a foreign armed force in Afghanistan and subsequent threats from the Taliban. The matter was before the Tribunal for review.
The core legal issue before the Tribunal was to determine if the applicant had established a well-founded fear of persecution, as defined by the Migration Act 1958 (Cth), specifically whether he would face serious harm due to his ethnicity, imputed political opinion, or other grounds, and if state protection was unavailable or unreasonable to avail. The Tribunal also considered whether the applicant had a right to enter and reside in another country, which would render section 36(3) of the Act applicable.
The Tribunal accepted the applicant's identity and country of origin as Pakistan. It found no evidence that the applicant had a right to enter and reside in any country other than Pakistan, thus section 36(3) of the Act did not apply. The Tribunal reviewed the applicant's claims, including his work as a translator for a foreign army, the death threats he received from the Taliban, and the subsequent harassment of his family. The Tribunal concluded that the matter should be remitted for reconsideration.Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the department’s record of decision to the Tribunal with his application. EVIDENCE AT THE HEARINGBackground of the Applicant The applicant was born on [date], in city of Karachi, Pakistan. He is married with two sons. The applicant’s immediate family remains in Pakistan. The applicant completed his primary and secondary education in Pakistan. Also, between 23 March 2014 to 18 March 2016, the applicant worked as ‘a supervisor’ for the company ‘[Company 1], [Country 1]. While in Australia, the applicant has been working in the building construction industry. The applicant’s father passed away on 22 June 2023 of natural causes, while his brother resides in [Country 2] (having obtained asylum) while the applicant has sisters who are in residence in Pakistan. Applicant’s claims for Protection The applicant’s claims for protection, including those at his protection visa interview, and evidence provided by the applicant in support of his claims are contained in his file, [number] and are summarised as follows: §The Applicant is a Pashtun born in Karachi. He is married with two sons. §He fears returning to Pakistan because he was threatened and targeted by Taliban because he worked with the [Country 3] army as a translator in Afghanistan. §He translated Pashtun for the [Country 3] army from 27 January 2013 to 2 June 2013. §On 15 March 2013 he was granted one week’s leave to visit his family in Pakistan. When he arrived home, he had a letter waiting for him from the Taliban warning him to quit his job in Afghanistan with the American occupiers. He claims he ignored the letter and returned to work in Afghanistan. §After two and a half months, he requested another week’s leave to go home to visit his wife and child. He went back home and after a few hours someone knocked on the door. A small kid gave him a paper and told him two men had asked the child to give the paper to him. He claims it was another death threat from the Taliban. §The applicant claims he decided to return to Karachi so as to leave Pakistan for a safer country, however, his bag was stolen on the bus journey home along with his passport, laptop, certificates, and other belongings. §He had to stay in Karachi until his new passport was issued. §The applicant claims the Taliban kept coming to his house bothering his family and asking for him. §He claims he contacted his community council to ask them to advise the Taliban that he had already quit his job in Afghanistan. §The applicant claims the community council advised him not to go back home as the Taliban have ordered Mujahedeen to kill him and his family if he ever showed up in North Waziristan again. §He claims while in Karachi he got another letter from Taliban warning to kill him. He claims he had two options to leave the country or face the death penalty. §He claims he got scared and contacted a friend who worked in [Country 1]. He claims his friend gave him contact details for a job in [Country 1] with a [company] called “[Company 1].” §He worked in [Country 1] for this company starting on 1 April 2014. He went home to Karachi [in] August 2015. He claims he wanted to visit his family in North Waziristan but was scared and so asked his wife and son to come to Karachi. During this period he received a phone call from a stranger who said “welcome to hell.” He claims a week later he received another threatening letter from Taliban. He departed to [Country 1] on [date] November 2015. His wife went back home to North Waziristan. §He claims if he returns, he will be targeted by Taliban on account of returning from a Western country. §He claims he will be “butchered” if he returns to Pakistan.Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The issue in this case is whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background – Applicant’s migration and visa history [In] August 2016 the applicant arrived in Australia on a Visitor FA-600 visa and on 19 September 2016 he applied for a XA-866 Protection visa (which was refused by the Department) but was granted the associated bridging visa. The applicant’s identity and country of origins as claimed Based on the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal,[1] and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of the information before the Tribunal, the Tribunal accepts the applicant’s identity as claimed. Protection (if) available to the applicant in another country considered[1] Department of Home Affairs File no.[deleted] The Tribunal having reviewed and considered all information before it also concludes and finds that there is no evidence which indicates that the applicant has a right to enter and reside in a country other than his home country – Pakistan. Therefore, the Tribunal finds that s.36(3) of the Act does not apply to the applicant in this case.The applicant’s Department file and information therein accessed by the Tribunal The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the department’s record of decision to the Tribunal with his application. EVIDENCE AT THE HEARINGBackground of the Applicant The applicant was born on [date], in city of Karachi, Pakistan. He is married with two sons. The applicant’s immediate family remains in Pakistan. The applicant completed his primary and secondary education in Pakistan. Also, between 23 March 2014 to 18 March 2016, the applicant worked as ‘a supervisor’ for the company ‘[Company 1], [Country 1]. While in Australia, the applicant has been working in the building construction industry. The applicant’s father passed away on 22 June 2023 of natural causes, while his brother resides in [Country 2] (having obtained asylum) while the applicant has sisters who are in residence in Pakistan. Applicant’s claims for Protection The applicant’s claims for protection, including those at his protection visa interview, and evidence provided by the applicant in support of his claims are contained in his file, [number] and are summarised as follows: §The Applicant is a Pashtun born in Karachi. He is married with two sons. §He fears returning to Pakistan because he was threatened and targeted by Taliban because he worked with the [Country 3] army as a translator in Afghanistan. §He translated Pashtun for the [Country 3] army from 27 January 2013 to 2 June 2013. §On 15 March 2013 he was granted one week’s leave to visit his family in Pakistan. When he arrived home, he had a letter waiting for him from the Taliban warning him to quit his job in Afghanistan with the American occupiers. He claims he ignored the letter and returned to work in Afghanistan. §After two and a half months, he requested another week’s leave to go home to visit his wife and child. He went back home and after a few hours someone knocked on the door. A small kid gave him a paper and told him two men had asked the child to give the paper to him. He claims it was another death threat from the Taliban. §The applicant claims he decided to return to Karachi so as to leave Pakistan for a safer country, however, his bag was stolen on the bus journey home along with his passport, laptop, certificates, and other belongings. §He had to stay in Karachi until his new passport was issued. §The applicant claims the Taliban kept coming to his house bothering his family and asking for him. §He claims he contacted his community council to ask them to advise the Taliban that he had already quit his job in Afghanistan. §The applicant claims the community council advised him not to go back home as the Taliban have ordered Mujahedeen to kill him and his family if he ever showed up in North Waziristan again. §He claims while in Karachi he got another letter from Taliban warning to kill him. He claims he had two options to leave the country or face the death penalty. §He claims he got scared and contacted a friend who worked in [Country 1]. He claims his friend gave him contact details for a job in [Country 1] with a [company] called “[Company 1].” §He worked in [Country 1] for this company starting on 1 April 2014. He went home to Karachi [in] August 2015. He claims he wanted to visit his family in North Waziristan but was scared and so asked his wife and son to come to Karachi. During this period he received a phone call from a stranger who said “welcome to hell.” He claims a week later he received another threatening letter from Taliban. He departed to [Country 1] on [date] November 2015. His wife went back home to North Waziristan. §He claims if he returns, he will be targeted by Taliban on account of returning from a Western country. §He claims he will be “butchered” if he returns to Pakistan.