1807132 (Refugee)

1807132 (Refugee) [2023] AATA 3048 (8 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Karyn Anderson
CASE NUMBER:  1807132
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Vlahos
DATE:8 June 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 8^th June 2023 at 9.30AM.
CATCHWORDS
REFUGEE – protection visa – Pakistan – ethnicity – Pashtun – religion –particular social group – mental health post-traumatic stress disorder – imputed political opinion – ANP member – strong connections and political alignment with the ANP – engaged with the with local Village Defence Committee – death threats made by the local Taliban – no effective protection available in Pakistan -unable to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 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 8 March 2017. The delegate refused to grant the visa on the basis that it did not meet the requirements of s.36(2).
The applicant appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Dr [A], Psychologist. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. 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 Australia has protection obligations in respect of the applicant and for the reasons that follow in this decision the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of Nationality and Identity
Based on a copy of the passport of the applicant, which was provided to the Department of Home Affairs[1] (the ‘Department’), the applicant’s oral and written evidence, 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 assessed his claims for protection against that country in relation to ss. 36(2)(a) and 36(2)(aa) of the Act. On the basis of this evidence before the Tribunal, the Tribunal accepts the identity of the applicant as claimed.
Protection in another country assessment
On the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than Pakistan. Therefore, the Tribunal finds that s. 36(3) of the Act does not apply to the applicant.
The Applicant’s Department File accessed
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal has also had regard to material referred to the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.
Background of the Applicant
The applicant is a [age]Sunni Muslim man, born and raised in the village of [Village 1] which is situated in the [District 1]of the Khyber Pakhtunkhwa (KPK) Province of Pakistan. He is of Pashtun ethnicity. The applicant is married (in [year]). His wife remains in Pakistan with his daughter (DOB [date deleted]). The applicant has parents and [a number of siblings]. His parents reside in[Village 1]. The applicant’s two brothers have left Pakistan and are living in[Location 1]. The applicant’s father passed away suddenly on [date deleted].[2]
Background – migration and visa history of the Applicant
Between 2012 to 2016 the applicant travelled to Australia numerous times on a Maritime Crew (subclass 988) visas. [In] February 2017 the applicant last entered Australia on a Maritime Crew (subclass 988) visa. [In]February 2017 the applicant deserted the ship in Perth and was subsequently located and detained by officials of the Australian Border Force (ABF). On 8 March 2017 the applicant lodged a Protection visa application. On 15 March 2017 the applicant was granted a Bridging (subclass 050) visa and was released from detention.[3]
The applicant has not left Australia since his arrival.
The Applicant’s claims for protection
The applicant’s claims for protection, including those provided at the interview with the delegate, and supporting evidence are contained in Department of Home Affairs File no. [Department number deleted]. The applicant’s claims for protection are summarised as follows:
§The applicant is a married Sunni Muslim of Pashtun background from [Village 1], Swat, Pakistan.
§The applicant is married with child – both residing with applicant’s family in Pakistan.
§The applicant claimed that he joined the student wing of the Awami National Party (ANP) in 2007 while at college. He claimed to have campaigned for the ANP during the election times and organised gatherings and meetings for the Party.
§In March 2008, whilst returning home from college wearing an ANP cap, the applicant was stopped and beaten by a group of Taliban members. The applicant was also threatened that if he did not stop his support for the ANP, he would be killed.
§In 2009 the applicant became a member of the Village Defence Committee (VDC) and assisted the army in identifying Taliban members and maintain law and order in the area.
§In October 2016 whilst travelling in a car with two of his cousins to a recreational centre in [location deleted], they encountered an attack by three masked men from atop a hill. The attackers fired gunshots at the car for a few seconds and then left. As a result, the bumper and roof of the car were hit. The applicant’s [Cousin 1], , was hit in his[lower body].
§People from the nearby picnic area and shops came to their assistance and took [Cousin 1] to the hospital. The applicant claims that when they reported the attack to the police, the police refused to register the report because they could not identify the attackers.
§The applicant subsequently travelled to Karachi and left Pakistan in January 2017 to join the ship to travel to Australia.
§The applicant claimed that he feared being killed by the Taliban due to his support for the ANP and his membership of VDC.
§The applicant claimed that members of his family, such as his father, brother, uncle and cousin had been attacked by the Taliban due to their association with the ANP and involvement in the VDC.
§The applicant claimed that due to the Taliban’s far-reaching presence in Pakistan, nowhere was safe for him in Pakistan and that the government was too weak to afford him with adequate protection.
Supporting documents provided to the Tribunal
The Tribunal noted and considered the following documents submitted by the applicant:
§Statutory declaration of the applicant signed and dated 20 April 2022;
§Psychological report of Dr [A] dated 25 June 2021;
§Photographs of the applicant at an ANP election campaign events in [Village 1] in 2008;
§Letter from [Mr A]ex-ANP member and brother of [Mr B], dated 27 August 2020;
§Letter from the Mayor of [Village 1] confirming the incident of 2016 dated [in] July 2020;
§Letter from the vice-President of the Village Defence Committee dated 21 July 2020;
§Letter from [Mr C] , son of [Mr D]dated 24 February 2023; and
§Statutory Declaration of [Mr E] confirming the applicant’s membership of the ANP dated 1 March 2023.
Applicant’s mental health
The applicant has presented a report from his psychologist, Dr [A] prepared on 3 March 2023. The report indicates that the applicant has been to this professional for a considerable period of time, for some five years. Dr [A] limits himself to opinions and diagnosis derived from his professional experience and his time with the applicant. The report from Dr [A] indicates that when tested the applicant had several factors in the extreme score and indicated that he was suffering from Post-Traumatic Stress Disorder (PTSD). The psychologist observes that the applicant’s affect flat. The Tribunal was particularly interested by the psychologist’s summary though sympathetic to the experiences relayed to him by the applicant while in Pakistan, he, (Dr [A]) was able to say that the history presented by the applicant is consistent with the psychological symptoms measured and observed in sessions the psychologist had with the applicant. The report of Dr [A] indicates that the applicant’s presentation is consistent with PTSD.[4]
The Tribunal accepts on the basis of this evidence, which the Tribunal finds based on the considerable time spent by the applicant in the care of Dr[A], that he suffers from PTSD, and has been prescribed medication and ongoing psychological treatment for this.[5]
Credibility
The applicant’s detailed claims are set out in detailed in a statutory declaration dated 20 April 2022. At the hearing the applicant provided detailed oral evidence that was consistent with his statutory declaration and independent sources before the Tribunal about the situation in the Swat. At the hearing the Tribunal took note of the submissions made on the applicant’s behalf by his legal counsel concerning the applicant being a “vulnerable witness” and indeed the Tribunal in its questioning of the applicant was cognizant of the guidelines concerning such witnesses.[6] The Tribunal also was cognizant that the applicant was under the influence of prescribed medications. The Tribunal also noted that the applicant’s demeanour exhibited the absence of emotion that was considered consistent with the diagnosis and observations of his treating doctor. Despite this, the applicant was able to provide details concerning his circumstances while in Pakistan and where he could not recall events or certain circumstances, he was able to tell and explain to the Tribunal his difficulties. Having said this, the Tribunal considered the applicant to be a credible witness and accepted his account of the events affecting him and his family in Swat.
The Tribunal also considers that the short period between his arrival in Australia –[in]February 2017 and his application for protection – on 8 March 2017 and his unwillingness to make any effort to attend his father’s funeral or to see his wife and child is indicative of his strong subjective fear and to further consider his claims to be credible.
Applicant’s claims of past harm
The Tribunal considers that the applicant’s evidence about events in Swat in recent years and the situation for him and his family is consistent with information contained in independent sources indicating that the leader of the Swat chapter of the Tehrik-Taliban-Pakistan (TTP) Maulana Fazlullah effectively set up a parallel government in the Swat in 2007, controlling the area until 2009 when he and his group were defeated by an army offensive in 2009.[7] Sources indicate that during this time, the Pakistani Taliban were in control of several of the Swat District’s major population centres.[8]
As part of its counter terrorism policy in 2008, the Pakistani Army began encouraging tribal elders to form anti-Taliban militias and lashkars to assist the security forces in maintaining peace in areas cleared of militants.[9] The main activities of such groups are reported to be local patrols, defending against attack, and providing the army with information pertaining to the whereabouts of alleged militants.[10] The BBC reports that government-backed peace committees aim to help locals ensure that their neighbourhoods are secure and also provide information to the army in case of militant activity. The article notes that “as such they are on the front-line – and primary targets for the Taliban”, giving the example of the head of a local peace committee and another member who were gunned down in a targeted killing near the town of Mingora, Swat.[11]
An army offensive against the Taliban in the Swat Valley commenced in April 2009. During that time the military is reported to have sent 15,000 troops into the Swat to confront about 4,000 Taliban militants. Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people in the month after the offensive commenced.[12]
Residents were allowed to return to Swat in approximately August-September 2009. Since the offensive country information indicates that the TTP have gradually returned to the valley and that ‘militants appear to have established an upper hand in the region in their fight against the state’s forces.’[13] SATP gives the following figures for the death rate in Khyber Pakhtunkhwa as a whole in 2011 and 2010:
[A] total of 1,206 persons, including 511 civilians, 364 militants and 331 SF [security force] personnel, were killed in 242 incidents of killing recorded in 2011, marginally down from 1, 212 persons, including 607 civilians, 509 militants and 96 SF personnel killed in 213 such incidents in 2010.[14]
In 2010 Human Rights Watch provided credible research of extra-judicial killings and other mistreatment of detainees and suspects by the Pakistani army in Swat valley.[15] This is confirmed by reports in other news services.[16]
On the basis of the material and evidence before the Tribunal the Tribunal finds:
§That the applicant is a member of the ANP and has been from a young age.[17]
§That the applicant’s family had very strong connections to and political alignment with the ANP and that the values of the ANP shaped the applicant’s life from a young age into adulthood.[18]
§That the applicant was politically engaged with the PSF (Pakhtoon Student Federation) and often spoke about the ANP’s platform to his fellow students.
§That as an ANP member, the applicant performed various activities in support of ANP during the 2008 local elections campaign.
§That in 2008, the ANP was elected to power in the region, on a platform advocating for military intervention of the Pakistani Army in order expel the Taliban from Swat. In response, the Taliban targeted supporters like the applicant and his family and killed members of ANP.
§That as a result of political activities with the ANP, the applicant suffered an attack in March 2008 instigated by local Taliban sympathisers.[19]
§That later in 2008, the applicant’s family were targeted by the local Taliban resulting in his father receiving death threats and the applicant’s cousin and brother being beaten.[20]
§That the applicant in 2009 was engaged in the local Village Defence Committee[21] (VDC) and actively assisted the Pakistani military in identifying Taliban members or persons who were suspicious and handing them over to the military. He also participated in ‘night patrols’ and organised night patrols throughout his local district. He also represented his area at meetings with the military and acted as a contact point for locals if they had security concerns.
§That in October 2016 the applicant and two cousins were attacked by three ‘masked men’ resulting in one cousin suffering a gunshot wound. The attack was in an area where the Taliban were engaging in underground operations.[22]
§That in January 2017 the applicant decided to leave Swat valley first travelling to Karachi then boarded a ship which brought him to Australia. Also, other family members involved with the ANP have sought asylum status in [other countries].[23]
The current situation in Swat Valley, Khyber Pakhtunkhwa
According to DFAT, the ANP is a ‘Pashtun nationalist and secular party’ that formed in Peshawar in 1986 following the merger of several leftist Pashtun parties. Its student wing, the PSF, was formed in 1968. The ANP served in several national and provincial coalition governments in the 1990s. Between 2008 and 2013, the ANP governed the KPK province and formed part of the federal coalition. However, at the 2013 national elections, it received only 0.9% of the national vote, resulting in one seat in the National Assembly, while in the KPK, its primary powerbase, it received 10.3% of the vote, resulting in only four seats in the 124 seat Provincial Assembly.

According to a number of commentators, the main reasons for the erosion of support for the ANP, was, and is, the campaign of violence targeted at the ANP, including its leaders, officials, members and supporters, by the TTP (Taliban),[24] and the increase in youth support for Imran Khan’s ‘Tehreek-e-Insaf’ (PTI) party. Reports indicate that, following its disastrous showing at the 2013 elections, the ANP and its youth wing held a number of consultations and meetings, which led to the formation of the National Youth Organisation (NYO) in June 2013.2 The ANP is the antithesis of the Taliban’s regressive and conservative views of how society should be governed, which has caused its members and supporters to be imputed with adverse profiles by the Taliban and other Islamist groups who oppose the west and seek the imposition of Sharia law.
In assessing the applicant’s claims, the Tribunal considers it relevant to note the events that occurred in the Swat Valley over the past 15 years, as these events provide a contextual background. According to a number of independent reports, the Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement of the Islamic cleric Sufi Muhammad to impose Sharia law in the KPK.[25] In 2002, Sufi Muhammad Khan's son-in-law, the firebrand cleric Maulana Fazlullah, emerged as a force in Swat and established headquarters at Imam Dehri. Linked to the militant Tehrik-e-Taliban Pakistan (TTP or Taliban), Fazlullah stepped up efforts to impose hardline Islam.[26] In January 2003, incidents of violence began to increase in Swat, and between 2004 and 2007, Maulana Fazlullah setup at least 30 illegal FM radio stations to get his message across. Under Fazlullah, the TNSM opposed girls’ education and any active role for women in society, and has used beheadings to advertise its strength.[27]
During 2007 and 2008, the Swat Valley witnessed significant armed conflict between the Taliban and the Pakistani security forces, which ceased (temporarily) in June 2008 when the ‘Taliban signed a 16-point peace agreement with the NWFP government and agreed to disband their militia; they also denounced suicide attacks and agreed to stop attacks on the security forces and government buildings’.[28] However, the peace agreement did not last long and in mid-late 2008, the army had commenced Operation Rah-e-Haq-II and sent in an infantry division and heavy artillery to combat the militants.[29] Despite Operation Rah-e-Haq- II, the Taliban remained in effective control of most parts of the Swat Valley up until April 2009, and major towns and cities, including Mingora, were severely affected by violence, with parts of the marketplace shut down and police stations overtaken by Taliban militants.[30]During this period the TNSM and TTP attacked targets in the Swat Valley that it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music and video stores, barber shops, schools, and artists.[31] As noted by DFAT in their ‘Country Information Report: Pakistan’ published in November 2013, ‘the spread of the TTP within Pakistan has resulted in a growing Islamisation in the areas it controlled in the FATA and KPK’ and ‘establish[ed] traditional tribal justice systems’.
By early 2009 about 60% of Swat's 1.8 million people had been displaced by the escalation of conflict and violence, with thousands of homes damaged and more than 150 schools destroyed, as the TNSM and Taliban gained control of about 75% of Swat.[32] Reports indicate that in April 2009, in response to public disapproval with the situation in Swat, the Pakistan Army launched a major counter-insurgency offensive and 15,000 troops entered Swat to confront about 4,000 Taliban militants and regained control of Swat. Residents were asked to evacuate the area during the army offensive and that more than 1.5 million people were registered as internally displaced in the month after the offensive commenced.[33]
Reports indicate that, in about August 2009, the government encouraged displaced residents to return to their homes in the valley after the army declared that it had removed the Taliban from the Swat Valley.[34]
Information indicates that, as part of its counter terrorism policy in 2008 and 2009, the Pakistan Army encouraged tribal elders in the Swat Valley to form anti-Taliban militias and lashkars (VDCs) to assist security forces in maintaining peace in areas cleared of militants.[35]
According to independent sources, the main activities of such groups included ‘local patrols, defending against attack, and providing the army with information pertaining to the whereabouts of alleged militants’.[36]The BBC reported that government-backed peace committees aim to help locals ensure that their neighbourhoods are secure and also provide information to the army in case of militant activity, and that ‘as such, they are on the front line – and primary targets for the Taliban’.[37]
Report indicate that, following the success of the military operation in 2009, the majority of TTP and TNSM militants fled into neighbouring districts of the KPK, the FATA and Karachi, and that Fazlullah reportedly fled to Afghanistan ‘where his men launch attacks from time to time against the Pakistani security forces’.[38] Some militants reportedly ‘stayed behind with relatives or in remote mountains’ while ‘others shaved their beards and blended in with the population’.
The Tribunal notes that there is clear information that, in the period before and after the army incursion in 2009, the Taliban sought retribution against, and targeted, leaders of VDCs and ANP members who spoke out publicly against the Taliban and those responsible for identifying Taliban members and collaborators,[39] which it has continued to do. According to DFAT, ‘TTP militants have attacked ANP members because of the ANP’s support for counter-insurgency operations in FATA and the KPK’, including in particular, throughout the Swat Valley.[40]
In considering and assessing the reliability of his evidence, the Tribunal has allowed for the possibility of discrepancies arising because of the applicant’s mental health and genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked, and has also taken into account the effect of the passage of time on his ability to recount his experiences. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’, and to the potential difficulties that can occur through giving evidence through an interpreter.
The Tribunal notes there are some inconsistencies[41] in the applicant’s written and oral evidence and that he has embellished some aspect of his evidence such as his leadership role in the VDC.
However, after considering both the written and oral evidence available to it, the Tribunal accepts that the applicant and his family are prominent members and supporters of the ANP and that the TTP has targeted and attempted to kill members his family members. The Tribunal accepts on the basis of the available evidence, including country information, that the applicant and his family were also involved in the local VDC. The Tribunal also acknowledges that the applicant applied for protection within a month of arriving in Australia rather than wait until his student visa was cancelled.
The applicant fears harm from the Taliban because of his and his family’s profile and involvement in the ANP and activities with the VDC in the Swat Valley. The Tribunal finds based on country information that it is from this involvement that the Taliban perceive him to be opposed to them.
The Tribunal accepts that the applicant’s fear of harm falls within the Convention reasons of his political opinion or imputed political opinion of opposing the Taliban.
In determining whether the applicant has a well-founded fear of persecution, the Tribunal has had regard to the applicant’s profile and the prevailing security and human rights conditions in the Swat Valley and the KPK and in Pakistan more generally.
According to the recent ‘Country Report: Pakistan’ published in January 2016, DFAT continues to advise that the Taliban insurgency in the FATA and KPK provinces remains the most potent security threat in Pakistan and that the level of violence is greater in these areas compared to other parts of Pakistan. DFAT notes that the Taliban insurgency and the war on terrorism have claimed more than 57,000 lives since 2001 and conflict in the FATA and Khyber Pakhtunkhwa remains an important factor for internal displacement and external migration.[42]
In respect of the Swat area specifically, there is significant evidence of ongoing militant attacks against peace committee members. Independent information before the Tribunal indicates that, despite the defeat of militants in Swat (operating under the umbrella of the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM)) by the Pakistan military in April 2009,the TNSM has continued to undertake attacks in Swat[43] and regular targeted killings civilians suspected of cooperating with the military, including peace committee members continue,[44] with one Pakistani journalist based in Mingora claiming that ‘every month, one or two [committee members] are killed by the Taliban’.[45]
A May 2014 report by the Voice of America on Pakistan military operations targeting TTP strongholds in neighbouring Buner District, noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014, were a ‘clear indication of militant presence in the region’.[46] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[47] who stated that the Taliban in Swat were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region. Cloughley characterises the Taliban in Swat as being ‘down but…not out’.[48] Most notably, the TTP’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House that the Taliban have become active in Swat again.[49]
There is information that Taliban militants remain active in the district and continue to carry out sporadic ‘hit and run’ type attacks against peace committee members and army patrols since July 2014.[50] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[51] Over the same time period, small groups of Taliban fighters have been infiltrating back into Swat from sanctuaries in the Afghan provinces of Kunar and Nuristan, and militant cells have been operating in the Kabal, Matta, Charbagh and Miadam areas of Swat.[52]
A report by the New York Times in July 2014 noted that, ‘few doubt that conditions in Swat have improved dramatically’ as ‘bloodied bodies no longer hang from traffic lights in the town square where the Taliban once executed their enemies’ and that ‘markets are bustling and more girls are attending school’,[53] however, attacks by the Taliban against Pakistani military operations and institutions or individuals deemed to be un-Islamic continue to occur in the area.[54] According to the New York Times:
[A] steady drumbeat of killings, by both militants and soldiers, has whipped up fear in Swat in recent years and blighted hopes for a return to normality in a place known for its beauty and tourist industry. Taliban fighters have slowly crept back to attack and kill pro-government community leaders … [F]or the most part, the Taliban gunmen have targeted the Village Defense Committees - local militias, mounted by the army to keep the Taliban at bay – which lost nine leaders to Taliban attacks in 2013, and eight so far this year. In the most recent shooting, on Tuesday, gunmen opened fire on Umar Hayat Khan, the committee leader in Takhta Band village, as he said his prayers in a local mosque.
The shootings have scared Swat residents because their targets are prominent community leaders - often landowners or members of the Awami National Party, a secular party that has borne the brunt of Taliban violence across Khyber-Pakhtunkhwa Province. More recently, Mr. Fazlullah has increased violence inside Swat in a bid to shore up his authority inside the Taliban, following a split in the militant ranks last May. In a rare video message released on May 19, he directed suicide bombers to attack “the forces of evil.”
A detailed investigative report ‘Killings target anti-Taliban leaders in Swat’ by Al Jazeera in late 2014, suggests the number of VDC fatalities in the Swat Valley is much higher than reported by the military and other sources,[55] referring to at least 22 VDC members having been killed in targeted attacks across the valley this year alone. The Al Jazeera report refers to a theme that is common to a number of other articles which refer to complaints from Swat Valley residents about the continuing insecurity and the inability of the state to provide protection from the Taliban, and portrays a prevailing atmosphere of fear and instability in the region.
Contrary to reports that indicate the security forces remain in control of the Swat Valley, a recent report issued by the United States Department of State’s Overseas Security Advisory Council on 30 March 2016, ‘Pakistan 2016 Crime and Safety Report: Peshawar’, states that:[56]
The critical terrorist threat that touches all aspects of life in northwest Pakistan dominates the overall security environment. Street robbery, burglary, extortion, revenge and honour killings, political violence, terrorist attacks, kidnapping, sectarian killings, targeted killing of security personnel, military actions, and civil disturbances are common events in Peshawar and northwest Pakistan.
Pakistani authorities have only minimal control of many areas of KP province and FATA,
including the Swat Valley and North and South Waziristan. These areas offer terrorists,
extremists, and militant groups a safe haven to prepare, train, and carry out attacks. The
FATA and Swat Valley are lawless and should be avoided.
The presence of al-Qai’da, Islamic State (ISIL), Afghan and Pakistani Taliban elements, and
other indigenous militant sectarian groups, and geographic proximity to the Afghanistan
borders continue to pose a danger. Targeted attacks against government officials, property,
military, law enforcement, and soft targets (educational facilities) are common. Consulate
Peshawar receives reports that indicate IED strikes, targeted assassinations, and bombings throughout the region occur on a weekly basis.
In 2016, there have been further security incidents in the Swat Valley, with fatal attacks on VDC members, police and people with an anti-Taliban profile,34 including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in Bara Bandai and Manglore.[57]
Having regard to the independent information referred to above, the negative outlook for the security situation in the KPK and FATA region,36 the continuing presence of a number of militant and extremist groups, as well as the increasingly insecure situation in neighbouring Afghanistan,[58] the Tribunal considers that a cautious approach should be adopted in assessing the risk of harm of returning to the Swat Valley for a person in the applicant’s situation.
The Tribunal considers that there is sufficient evidence to demonstrate that members of the ANP and those involved with the VDC have been targeted for harm in the Swat Valley. While the profile of most of the targets and victims are usually high ranking or leadership, such as the four members of the of applicant’s extended family who were killed by the Taliban, the Tribunal does accept that the level of violence in this area of Pakistan has affected lower profile individuals.
The Tribunal finds that the weight of independent information indicates the Taliban continues to target people in the Swat Valley who have anti-Taliban profiles, including ANP members and village defence committee members and it cannot confidently discount the possibility the applicant, with his background and family profile, would again come to the attention of the Taliban if he were to return to Swat Valley in the KPK and continue to engage in the activities that he had formerly engaged in.
For these reasons, on the evidence and information before it, the Tribunal accepts there is a real chance that the applicant would suffer serious harm for reasons of his real and imputed anti-Taliban political opinions in the event he returned to his home area of the Swat Valley in the reasonably foreseeable future. It finds the serious harm is of a kind suggested in the examples set out in s.91R of the Act. Further, it finds that the targeting of the applicant for such serious harm would be systematic and discriminatory.
State Protection
The harm the applicant fears is not from the Pakistan authorities but from non-state actors, including the Taliban. Having found that there is a Convention nexus to his fear of serious harm, the Tribunal must consider whether the Pakistani Government is able to provide adequate protection against that harm. In this context, the Tribunal has considered independent information about the capacity of the state organs and their agents to afford protection to a person in the applicant’s circumstances. According to the United States Department of State’s Overseas Security Advisory Council:
Pakistani authorities have only minimal control of many areas of KP province and FATA,
including the Swat Valley and North and South Waziristan. These areas offer terrorists,
extremists, and militant groups a safe haven to prepare, train, and carry out attacks. The FATA and Swat Valley are lawless and should be avoided.[59]
Although a number of sources report that the authorities control most parts of the Swat Valley, the information before the Tribunal, referred to above and in the independent information provided by the applicant and referred to by the delegate, indicates that the situation in the KPK region remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban.
While the security situation appears to have been stabilised by the presence of the army, there are clear indicators that militants remain active in the area and that little is done in response to attacks on residents by militants. Given the long-standing nature and seriousness of the violence in the Swat Valley, together with information indicating that the authorities in Pakistan are struggling to contain that violence, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities in the Swat Valley does not meet the level of protection which citizens are entitled to expect as referred to by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.
Relocation
The Tribunal considered the available country information in relation to relocation with present-day Pakistan. In the context of its consideration of the issue of relocation, the Tribunal considered the applicant’s personal characteristics (language abilities, education, past and current employment, and professional experience) and independent information regarding the significantly improved security situation in 2014-2015 throughout Pakistan. The Tribunal also took into account the submissions made by the applicant’s legal counsel[60] which described the applicant’s fears of harm to himself emanating “throughout Pakistan” regardless of any improvements at the moment with regards to overall security situation in Pakistan. Counsel pointed out that “by virtue of [the applicant’s] membership of a particular social groups”[61] the risks to his person have not lessened.

The Tribunal having determined on the evidence found there is a real chance the applicant will face serious harm upon his return to Swat Valley, KPK, his home region, the Tribunal must also consider whether there is a real chance that the applicant will suffer serious harm if he relocates to another area of Pakistan, such as Karachi, Islamabad or Lahore. In this context the Tribunal must determine if there is an “appreciable risk of the occurrence of the feared persecution” throughout Pakistan, and, if not, whether it would be “reasonable”, in the sense of “practicable”, to expect the applicant to seek refuge in another part of the same country. What is “reasonable” in this sense depends on the particular circumstances of the applicant and the impact on him of relocation.
The UNHCR Internal Flight Guidelines at paras 29 and 30 states:
[29] If the situation is such that the claimant will be unable to earn a living or to access
accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life a more than just a minimum subsistence level.
[30]. If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums of an urban area where they would be required to live in conditions of severe hardship.
The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan and that there is freedom of movement of Pakistani citizens throughout the country. The DFAT report indicates that many persons formerly displaced from parts of KPK due to past conflict have since been resettled in KPK or successfully relocated to other parts of Pakistan, and identifies that options are available for most ethnic and religious groups to relocate to large, urban centres, that are home to mixed populations with access to services and employment opportunities.
The applicant claims he would not be safe from the Taliban anywhere in Pakistan as the Taliban have a network throughout the country and would seek to harm him and would search for him throughout Pakistan. The Tribunal accepts that country information indicates that the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian, and politically motivated violence, particularly outside of FATA, KPK and Balochistan.
On the other hand, in assessing whether it is reasonable for the applicant to relocate the Tribunal has had regard to the report and opinion of Dr[A]. The Tribunal accepts that the applicant has been referred to a psychiatrist and has been prescribed specific treatment and medicines. In particular the Tribunal notes that Dr [A]concludes that in his clinical opinion the applicant suffers a severe depressive condition and high levels of emotional stress and anxiety and that his condition is indicative of posttraumatic stress syndrome.
In conclusion, having regard to the applicant’s personal profile, the growing presence of extremist groups throughout Pakistan and the applicant’s psychological health, the Tribunal finds that it is not reasonable for the applicant to relocate to any other part of Pakistan to avoid his risk of Convention based persecution.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Vlahos
Member

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

[1] see, Department File sighted <copy applicant’s passport>

[2] Pakistani issued death certificate (Government of Khyber Pakhtunkhwa) [number deleted] dated [date deleted], see in AAT case File attachment to written submissions dated 6 March 2023.

[3] see, delegate’s decision record dated 5 March 2018 on AAT File.

[4] see, ‘Private & Confidential’ Psychological Report prepared by Dr [A], Clinical Psychologist, [organisation deleted]dated 3^rd March 2023 attachment written submissions AAT File.

[5] Ibid[Dr A] Report, see paragraph [21]

[6] Migration and Refugee Division, Guidelines on Vulnerable Persons (November 2018) available at

[7] Siddique, Q 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organisation and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November, pp. 39-43 >; Kronstadt, K.A 2010, ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June, at p. 9

[8] ‘Swat Region, Pakistan’ 2009, The Long War Journal, 12 May

[9] Pak Institute for Peace Studies 2011 Pakistan Security Report 2010 Jan at p.6

[10] Pak Institute for Peace Studies 2012 Pakistan Security Report 2011, January, pp. 10-11; Rehman, Z. 2011, ‘Tribal Militias are double-edged weapons’, The Friday Times, vol. 23, no. 33, 30 September – 6 October Hassan, S. 2010, ‘Militants disrupt the Swat valley’, BBC News, 30 April Tavernise, S. and Shah, P.Z. 2010, ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April

[11] Hasan, S. 2010, ‘Militants disrupt peace in Swat Valley’, BBC News, 30 April Tavernise, S. and Shah, P.Z. 2010, ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April

[12] Macey, J. 2009, “Desperate Swat Valley situation revealed”, ABC News, 1 June

[13] South Asia Terrorism Portal (SATP) 2012, Khyber Pakhtunkhwa Assessment – 2012

[14] South Asia Terrorism Portal (SATP) 2012, Khyber Pakhtunkhwa Assessment – 2012

[15] Human Rights Watch 2010, Pakistan: Extrajudicial Executions by Army in Swat BBC news, 2009, Video shows Pakistani army ‘abuse’, 1October,

[File note deleted].

[19] see, <statutory declaration Applicant> dated 20 April 2022 paragraphs [17] to [56]

[File note deleted].

[21] see, AAT File - <letter from vice-President of the Village Defence Committee> confirming the applicant’s activities in the VDC dated 21 July 2020.

[22] see, AAT File – Applicant’s submissions - <letter [dated 28 July 2020] from Mayor of Kuza Bandai> confirming the incident of 2016.

[File note deleted].

Centre, June 2013, available at ‘Elections 2013: Violence against Political Parties, Candidates and Voters’, Pakistan Institute for

Peace Studies, May 2013.

[25] Khattak, D K, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders
between Terror, Politics, and Religion, Oxford University Press, New York, 2013 pp.289-313.

[26] Siddique, Q, ‘Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons
for its growth in Pakistan’s North-west’, Danish Institute for International Studies, November 2010.

[27] Mustafa, D & Brown, K E, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and
Development Working Paper, 2010, Kings College London, p 13; ‘Taliban behead two government officials in

Swat’, Dawn, 3 May 2009, available at ‘Time line on Swat Valley turbulence’, IRIN News, 11 February 2009.

[29] Khattak, D K, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders
between Terror, Politics, and Religion, 2013, pp.289-313.

[30] Khattak, D K, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders
between Terror, Politics, and Religion, 2013, pp.289-313.

[31] Khattak, D, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders
between Terror, Politics, and Religion, 2013; Mustafa, D & Brown, K E, ‘Space of Performative Politics and

Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, 2010.

[32] ‘Time line on Swat Valley turbulence’, IRIN News, 11 February 2009.

[33] ‘Mass evacuation ordered in Swat’, Al Jazeera, 10 May 2009, available at
Macey, J, ‘Desperate’ Swat Valley
situation revealed’, ABC News, 1 June 2009, available at

See Khattak D, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the
Borders between Terror, Politics, and Religion, 2013, pp.289-313.

[35] ‘Pakistan Security Report 2010’ , Pak Institute for Peace Studies, January 2011, pp.10-11; Rehman, Z, ‘Tribal
militias are double-edged weapons’, The Friday Times, 30 September – 6 October 2010, available at
Hasan, S, ‘Militants disrupt

peace in Swat valley’, BBC News, 30 April 2010, available at Hasan, S, ‘Militants disrupt peace in Swat valley’, BBC News, 30 April 2010; Tavernise, S. and Shah, P. Z,
‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April 2010, available at

Hasan, S, ‘Militants disrupt peace in Swat valley’, BBC News, 30 April 2010; Tavernise, S. and Shah, P. Z,
‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April 2010, available at

Khattak D, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders
between Terror, Politics, and Religion, 2013, pp.289-313.

[39] See for example ‘Pakistan Army Said to Be Linked to Swat Killings’, The New York Times, 14 September
2009; ‘TTP Claims Responsibility for Killing Swat Peace Committee Members’, Express Tribune, 2 November

2012; ‘Pakistani Army Strategy in Question After Attacks’, Dawn Newspaper, 22 October 2012.

[40] ‘DFAT Country Information Report Pakistan’, Department of Foreign Affairs and Trade, 15 January 2016.

[41] In his <statutory declaration> the applicant details in significant detail his VDC activities which also were undertaken at the same time he was studying at College and running his own business. The Tribunal considered it difficult to comprehend how a person involved in night operations would have the ability to attend classes at College and run a business over a considerable period of time as was claimed by the Applicant. Nevertheless, the Tribunal accepted the applicant’s involvement with the VDC based on his and his family’s known and well-established political activities with the ANP – see <statutory declaration, Applicant> at paragraphs [17] et.al.

[42] DFAT Country Information Report Pakistan 15 January 2016 paragraphs 2.29, 2.30

[43] The Pakistani Taliban issues paper, DIBP, January 2015, p.52 <CR1211AE77>

[44] "Restoring Swat’s lights", Friday Times, The, 29 July 2016, (Opens in a new window)

[45] What’s keeping the military in Pakistan’s Swat Valley?’ 2013, IRIN, 30 October
< Jan, S 2014, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May
< Accessed 12 June

2014 <CX321761>

[47] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Accessed 13 June 2014

[48] Cloughley, B 2014, ‘It’s Time to Strike’, The News International, 19 May < Accessed 13 June 2014

[49] ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’ 2013, Pakistan
Today, 17 September < Accessed 13 June 2014 <CX321833>

[50] Rehman, Z & Walsh, D 2014, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26
July < Accessed 5 February 2014 <CX323791>; Rehman, Z 2014, ‘Swat - An Unquiet Calm
2014’, Dawn, 21 September < Accessed 4 February 2015
<CX1B9ECAB5718>; ‘Trouble in Paradise’, Newsline (Pakistan), 13 December <
Accessed 5 February 2015

<CX1B9ECAB8755>

[51] ‘Killing spree - Village defence committee member shot dead’ 2014, Express Tribune, The (Pakistan), 28
October < (Opens

in a new window)> Accessed 5 February 2015 <CX1B9ECAB6437>

[52] Rehman, Z & Walsh, D 2014, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26
July < Accessed 5 February 2014 <CX323791>; Rehman, Z 2014, ‘Swat - An Unquiet Calm
2014’, Dawn, 21 September < Accessed 4 February 2015

<CX1B9ECAB5718>

[53] ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at
‘Swat: an unquiet calm’, Dawn, 21 September 2014, available at girl shot over activism in Swat valley’, The Guardian, 10 October 2012; ‘Mingora blast fuels Taliban

comeback fears in Swat’, The Express Tribune, 14 January 2013

[55] ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014, available at
Available at See ‘Village defence body member, guard shot dead’, Dawn, 24 May 2016, available at
‘Policeman killed and two others injured in Swat attack’, Dawn, 25 May

2016, available at See Javaid U, ‘Political Challenges and Security Issues in FATA and its impact on Economic Development’,
South Asian Studies A Research Journal of South Asian Studies, Vol. 31, No. 1, January – June 2016, 367 –

380.

[59] US DOS, OSAC Bureau of Diplomatic Security, Pakistan 2016 Crime and Safety Report: Peshawar
see, <written submission Clothier Anderson> dated 6 March 2023 at page 37.

[61] see, Ibid <written submission Clothier Anderson> p.2 ‘3. Background’

[2023] AATA 3048

8 June 2023

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