1807552 (Refugee)

1807552 (Refugee) [2022] AATA 3844 (24 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sanmati Verma (MARN: 1276020)
CASE NUMBER:  1807552
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Brendan Darcy
DATE:24 August 2022
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.
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Statement made on 24 August 2022 at 11:27am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from Taliban as member of village peace committee and for preventing school from being destroyed – applicant attacked and applicant and family threatened – internal displacement – credibility – largely consistent and credible claims and evidence of activities and profile – country information – general security situation – real chance of persecution and serious harm – not reasonable to relocate and state protection not available or limited – mental health – decision under review remitted
LEGISLATION
Migration Act 1959 (Cth), ss 5(1), 5H(1)(a), 5J(2), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAE v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 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 the Islamic Republic of Pakistan (Pakistan), applied for the visa on 22 July 2017. The delegate refused to grant the visa on the basis that the claims for protection lacked overall credibility.
At its Melbourne facilities, the applicant appeared before the Tribunal on 24 May 2022 to give evidence and present arguments.
A resumed hearing was held by the Tribunal at its Melbourne facilities on 26 July 2022.
In both hearings, the applicant was assisted by an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review.
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
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant was born [on Date] in [Location], in [Village 1]. This is located in the Swat Valley District of Khyber Pakhtunkhwa, Pakistan. He is of Pashtun ethnicity.
The applicant was one of five children born to [Mr and Ms A]. The applicant’s parents are now deceased, along with his sister [Ms B]. The applicant’s brothers [Mr C] and [Mr D] remain living in the Swat Valley. The applicant’s younger brother [Mr E], fled to [Country] in approximately 2006 or 2007, and has allegedly been granted asylum in [Country].
The applicant is married to [Ms F], with whom he has [children]. All of the applicant’s family reside in [Village 1] with the applicant’s father-in-law.
A copy of the applicant’s Pakistani passport was on the Department file ([Reference]) relating to his visa application.
[In] April 2017, the applicant arrived in Australia while holding a Class FA Subclass 600 business visitor visa.
On 11 May 2017, the applicant applied for a Class XA Subclass 866 protection visa and was subsequently granted an associated bridging visa On 29 June 2017, the application for a protection visa was deemed invalid.
On 22 July 2017, the applicant re-applied for a Class XA Subclass 866 protection visa which was deemed a valid application.
The applicant’s claims for protection were contained in [Department file reference], and are summarised below:
·     The applicant was a farmer from the Swat valley in the northwest mountains of the Khyber Pakhtunkhwa province in Pakistan;
·     The applicant is seeking protection as he is in danger from the Taliban in Pakistan;
·     The Taliban has mistreated the applicant due to his opposition to the Taliban, his work in the Village Peace Committee (VPC), and his involvement in preventing a girls school from being destroyed by Taliban militants;
·     The applicant relocated to a few places in the past, however, he did not feel safe in any of those locations and eventually had to return to his home village in the Swat valley. The applicant does not feel secure and in peace in any of the locations in Pakistan, due to the Taliban widespread network of supporters, sympathisers and links throughout the country;
·     The applicant could not be provided any protection by the Pakistani authorities, including Pakistan's Army;
The applicant attended a Departmental interview on 8 December 2017, together with his representative, and with the assistance of an interpreter made the following additions to his claims:
§ There were 30 to 40 people in the village peace committee and the applicant was its [Officer 1]. He could not remember when he joined the committee. His role included putting posters on walls, collecting dead bodies, and organising funerals;
§ In 2010 whilst working on the farm, the Taliban attacked the applicant because of his interaction with the Taliban at the girl’s school. They were firing bullets in his direction, but he managed to escape. He did not see the assailants and he was alone at the time of the attack;
§ His family have received many threats from the Taliban, but they have not been targeted. When relocating throughout Pakistan to avoid the harm, he stayed in different places. In the Buner District he was attacked by the Taliban who were firing at him, but he found refuge in a house and escaped the harm;
§ The applicant felt safe and secure in Mardan, but at the end of 2011 the Taliban arrived. There were insufficient work opportunities there, so he left. He did not feel safe in Peshawar or Karachi either because of the violence and the Taliban;
§ The Taliban came to the applicant’s house in Swat during his absence and asked for his whereabouts. The Taliban wanted to deal with the applicant, not his wife;
§ He moved back to Swat in 2015 until 2017 and he was not harmed by the Taliban because of the Pakistani army’s presence;
§ The Taliban’s and the applicant’s land were confiscated by the Pakistan army for military purposes. The Taliban losing their lands and properties in the applicant’s village, became extremely angry with the villagers, especially those taking part in the inauguration’s gathering of army bases. The Taliban called the applicant and strongly threatened to harm him, due to his support of the Army actions (confiscating the Taliban’s lands);
§ The applicant, whose life was under threat, looked for an ultimate way out of the whole problem once and for all as he was tired of relocation in Pakistan. The applicant was successful in obtaining a Visitor Visa to Australia, and by that means his life was saved by coming to Australia;
§ Had the applicant stayed in Pakistan, he would have been killed by the Taliban.
According to the applicant’s 866C form, the applicant’s ethnicity is Pashtun, and his religion is Sunni Muslim.
The Department file that relates to the applicant’s visa application contains copies of the following documents (which came with the application) relevant to the applicants claims:
·     A copy of the applicant’s Pakistan passport issued [2013];
·     The applicant’s birth certificate, issued by the Government of Kyber Pakhtunkhwa Pakistan;
·     A National Identity Card;
·     A Domicile Certificate of Residence;
·     Marriage certificate between the applicant and [Ms F].
On 22 July 2017 the delegate refused to grant the applicant the visa.
The applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal on 20 March 2018. Attached to the application for review was a copy of the delegate’s decision record and accompanying notification letter.
On 5 May 2022, the applicant provided the Tribunal with the following documents relevant to the applicants claims:
·     A statement by the applicant dated 22 March 2022;
·     A letter from [Mr G], Senior Vice President of Village Defence Committee [Village 1], Swat Valley, dated [May] 2019;
·     A Letter from [Mr H], President of ANP, [Location 1], dated 25 May 2019;
·     Order by the Court of the Additional Assistant Commissioner [Location 1], Swat District, regarding land confiscation, decision dated 18 February 2019;
·     DAWN Article regarding death of [name deleted];
·     Social media photo - Chief of Army, General Rahil Sharif, meeting [Mr H];
·     Copy of [a Country] residency permit pertaining to the applicant’s brother, [Mr E];
·     Letter from psychologist [Mr I] to [Dr J].
The applicant’s submission on 22 March 2022 provided substantially more details about past harm incidents and his experiences in relocating within Pakistan prior to his departure for Australia.
On 25 May 2022, the Tribunal received a copy of an invitation to attend the opening ceremony of a cantonment in Swat valley (the Kanju Garrison) at which General Raheel Sharif, the Pakistani Chief of Army Staff was to the honoured guest.
As mentioned above, the Tribunal conducted two hearings in relation to this matter. At the end of the resumed hearing, the applicant’s representative undertook to provide a post hearing submission and to do so by 29 July 2022.
The Tribunal received a post hearing submission on 29 July 2022 which included a 7-page legal submission and a copy of the applicant’s bank account indicating remittances sent to Pakistan on a regular basis.
No further documents or submissions were received, right up to the time of making this decision.
There are no non-disclosure certificates that have been attached to either the applicant’s Departental or Tribunal files.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicant claims to be a national of the Islamic Republic of Pakistan. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. Based on the available evidence, all of which is on file and with no evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Third country protection
There is nothing in this matter to suggest that the claimant has a right to enter and reside, either temporarily or permanently, a third country for the purposes of s.36(3).
Credibility Findings
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not 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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
In essence the applicant claims to fear persecution involving serious harm from the Pakistan Taliban due to an actual and imputed political opinion of opposition, due to his status as a member of a village defence committee (or peace committee), and his wider anti-Taliban activities, should he return to his home area in Swat Valley; 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.
The Tribunal found the applicant to be a largely credible witness and found that his oral evidence was consistent with his written statements and supporting documentary and photographic evidence. It mostly accepts past events and critical aspects about his ethnicity, religion and family composition.
Nonetheless, the Tribunal notes one embellishment which it did not find to be credible. That was a specific claim raised in the resumed hearing and not outlined in any of the written claims. The claim included the applicant wearing women’s attire as he approached military checkpoints in the Swat valley. The Turbinal finds that the applicant appeared to advance this fanciful and incredulous claim to augment his otherwise credible and consistently claims for protection.
Background - the conflict in Swat
The Tribunal accepts the applicant’s hometown is [Village 1] in Swat District. This is where he was raised and worked as a landowning farmer. It continues to be a place where the applicant’s brothers in Pakistan reside, and where his wife and children live with the applicant’s in-laws.
For the purposes of this decision, the Tribunal considers that the wider Swat District within the Malakand Division of the Khyber Pakhtunkhwa Province to be the applicant’s home area for the purposes of this decision.
Prior to the Partition of India which led to the creation of Pakistan in 1947, the British Indian Empire recognised Swat as a princely state known as Yousafzai State of Swat (or Dera Yusufzai). Yousafzai denoted the predominate Pashtun tribe of the area.
Between 1947 and 1969, the Swat District had been administrated by the Dominion of Pakistan (which became the Islamic Republic of Pakistan in 1956). Leaders of Swat continued to enjoy considerable autonomy from the central Pakistani state and resistance to Pakistani rule continued after independence. Indeed, in 1950, guerrillas led by Mirzal Khan announced the creation of Pashtunistan as an independent nation. By 1969. the popularity of independence declined, with several jirgas in Waziristan deciding to support Pakistan by establishing the semi-autonomous Federally Administered Tribunal Areas (FATA).
In 2018, the FATA was merged with 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 largest city of KPP.
The Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989. Maulana Fazlullah assumed control of the TNSM in 2001 and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands. When Tehreek-e Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007 (now part of Khyber Pakhtunkhwa), Fazlullah was named emir (leader) of the Swat Taliban. Although the TTP and TNSM were not operationally linked at that time, they were allied and TNSM militants in Swat were also referred to as the Swat Taliban.[1]
[1] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289-313; Siddique, Q, 2010, 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.

The TNSM attacked targets in Swat which it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, artists,[2] and used beheadings to advertise its strength.[3] The Khyber Pakhtunkhwa (KP) Provincial Government entered into a number of ceasefire agreements with the TSNM from 1994,[4] however, these did not lead to a lasting peace and the TNSM gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence and displacement of the local population.[5] Fazlullah effectively set up a parallel government in Swat in 2007, controlling the area until 2009 when he and his group were defeated by a military offensive.[6] The army offensive against the Taliban in Swat commenced in May 2009. During that time the military is reported to have sent 15,000 troops into Swat to confront about 4000 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 (IDPs) in the month after the offensive commenced.[7]
[2] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28
[3] Mustafa D and Brown K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; ‘Taliban behead two government officials in Swat’ 2009, Dawn, 3 May
[4] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York
[5] Ibid, pp.289-313, especially page 302 for reference to a, so-called, ‘Taliban Police Station’
[6] Siddique, Q. 2010, 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, pp. 39-43 < Kronstadt, K.A. 2010, ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June, p. 19
[7] Macey, J. 2009, ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June ;
The Tribunal accepts that the applicant is a Pashtun from [Swat] district KP, is of the Sunni Muslim faith, and that his family lived in Swat through the period of Taliban control, until they were defeated by the Pakistani Army operation in mid-2009. The Tribunal accepts the evidence that the applicant is a member of a well-respected and prominent family. The Tribunal also accepts evidence that the applicant’s great grandfather was killed in mid-2008 because of his prominent role in opposition to the SWAT Taliban.
The Tribunal accepts that the applicant’s family was among the 1.5 million IDPs who left Swat prior to the commencement of the Army operation in May 2009, returning to [Village 1] in September 2009.
Country information indicates that the campaign against the Taliban and its supporters in Swat was 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 throughout Swat.It was unclear whether the executions were perpetrated by the Army, local tribal militias or other Taliban insurgents.[8] 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.[9]
Association with a village peace committee in the Swat valley
[8] ‘The law in whose hands?’, The Economist, 1 October 2009.
[9] Perlez, J & Shah, P, ‘Pakistan Army Said to Be Linked to Swat Killings’, The New York Times, 14 September 2009 (CISNET Pakistan CX233452)
It is claimed by the applicant that he participated in a local peace committee, and that because of this involvement - prevented a local girls’ school from being destroyed by Taliban militants.
So-called village peace committees (also referred to as village defence committees) were formed in the Swat valley to assist the authorities, especially military and security authorities. They assist the Pakistani Army to raise the alert in the event of any attempts by Taliban to infiltrate the area. They were also formed to negotiate with authorities to de-escalate military offensives that would otherwise disproportionately damage non-Taliban farms and local amenities and displace non-combative locals in Swat valley.
The applicant’s portrayal of himself as an informant is consistent with relevant country information.
The applicant has relatedly claimed that he was an office bearer of the defence committee, specifically its [Officer 1]. He provided a translation of a handwritten letter from the vice president of the [Village 1] VDC dated [May] 2019. The Tribunal enquired into his duties as [an Officer 1] given, he was illiterate and would have been required to take notes during meetings, or send out notices, typical of [an Officer 1] as understood in Australia or similar countries. He vaguely claimed his role was to coordinate and provide advice.
The photographic evidence provided by the applicant was taken from a [video] of the opening of a military base or cantonment at the applicant’s home area within Swat valley. The video demonstrated modern facilities, including medical facilities, that would be accessible to the military personnel and locals of the area. The event was reported on 12 November 2016 in Pakistani news website, The International News:
MINGORA: Chief of the Army Staff (COAS) General Raheel Sharif, along with Khyber Pakhtunkhwa Governor Iqbal Zafar Jhagra and Chief Minister Pervaiz Khattak, laid the foundation stone of the Swat Cantonment here on Friday, the Inter-Services Public Relations (ISRP) said.
It said the Swat Cantonment was approved on September 8, 2015 on the popular demand by the people in view of the much-needed, long-term security for the region.The ISPR said the Pakistan Army chief visited Mingora, Kanju and Khwazakhela in the Swat district on Friday.
Speaking at the occasion, General Raheel Sharif paid his gratitude to the people of Swat for their valiant stand against the reign of terror and for standing alongside the security forces to throw the terrorists out of the valley.[10]
[10] Foundation stone for cantonment in Swat laid, 12 November 2016, The International News, Foundation stone for cantonment in Swat laid (thenews.com.pk)
Publicly available information (google maps) indicates [Village 1] is close to Mingora and [information redacted].
In the context of the video graphic evidence sighted during the resumed [hearing], the Tribunal accepts the applicant was a member of the village peace committee and that the applicant held a sufficiently trusted position whereby he was invited to attend an auspicious opening of a cantonment with the most senior military leader in Pakistan. Sharif has been responsible for carrying out anti-terrorism operations across Pakistan. Operation Zarb-e-Azb – the campaign to eradicate Taliban strongholds and to stabilise the country, is intimately associated with his leadership. While the Tribunal has some doubts as to whether the applicant was a formal office bearer of the local peace committee, it has provided him with the benefit of the doubt on this occasion and accepts he was an office bearer, that he was and continues to be known to the Taliban, not least for foiling a plot to wilfully destroy a girls’ school, and because there is video graphic evidence of an association between the applicant and the then most prominent military enemy of the TTP and its sympathisers.
The Tribunal also accepts that while the family of the applicant used to be significant land holders in [Village 1], their holdings have diminished by the compulsory acquisition of their land by the Pakistani military. The applicant has argued that the compensation from the army was inadequate and the family was not in a position to challenge that. There was also evidence of a land dispute with another landholder provided to the Tribunal. This was been presented as creating serious harm the applicant and his extended family face in creating farming income as the land dispute has not been suitably resolved. While the Tribunal accepts these claims, the Tribunal has more seriously considered the security situation in Swat valley to evaluate whether the applicant faces a real chance of serious harm or a real risk of significant harm based on his membership of a village peace or defence committee.
Independent information before the Tribunal indicates that, despite the defeat of Taliban militants in Swat by the Pakistan military in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military continued.[11]
[11] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at >
In [2010], two peace committee members in [Village 1] were killed and three injured by ‘assailants’ according to [Source 1][12] and [Source 2].[13]
[12] [Reference 1 redacted]
[13] [Reference 2 redacted]
A May 2014 report by the Voice of America on Pakistan military operations targeting Taliban 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’.[14] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[15] 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 characterised the Taliban in Swat as being ‘down but…not out’.[16] The Taliban’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 (in 2013) that the Taliban have become active in Swat again.[17]
[14] Jan, S, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May 2014, <
[15] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Cloughley, B, ‘It’s Time to Strike’, The News International, 19 May 2014, <
[17] ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’, Pakistan Today, 17 September 2013, <
There is clear evidence of militant attacks against peace committee members in 2014,[18] indicating 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.[19] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[20] 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.[21]
[18] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,
[19] Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014, ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014, ‘Killing spree - Village defence committee member shot dead’, Express Tribune, The (Pakistan), 28 October 2014, Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014,
A September 2014 article in Dawn newspaper indicates that on 15 September 2014 the head of the Gul Jabba village peace committee was gunned-down in broad daylight near a check-post manned by security personnel, and the same day two peace committee members were killed in Bara Bandai. The article comments that over the last three years at least 30 members of Village Defence Committees (VDCs) or Peace Committees have been gunned down in Swat. These killings are described as an ongoing process of retaliation for helping the authorities arrest militants and destroy their houses. The article concludes that continuing attacks are belying the military’s claims of having secured the area from militants and that experts say the Taliban will not be able to regain the hold it had on the Swat valley from 2007-2009 but are likely to restrict their activity to hit-and-run tactics, an ideal guerrilla warfare approach in Swat’s rugged terrain.[22]
[22] ‘Swat: an unquiet calm’, Dawn, 21 September 2014, >
An investigative report 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,[23] referring to at least 22 VDC members having been killed in targeted attacks across the valley that year alone.
[23] ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014,
Military spokesperson Lieutenant-Colonel Aqueel Malik stated that there are approximately 3000 peace committee members in Swat, of whom 22 are highly placed on a Taliban hit-list. He states that the Taliban target tribal leaders because they are ‘soft targets’ and peace committee members because ‘these people worked closely with law enforcement agencies [and the Army] in order to end terrorism.’[24] According to a December 2014 report by Newsline Pakistan, attacks on people working with peace committees in Swat have continued during the past few years.[25]
[24] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,
[25] ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014,
Country information also indicates that in September 2014 a curfew was imposed in areas of Swat following the killings of several peace committee members by militants.[26]
[26] ‘Indefinite curfew continues in northwest Pakistan’s Swat district’, The Economic Times, 18 September 2014, >
Reporting in 2016 indicates further target killing of village peace/defence committee members. In early June 2016, there were reports about a VDC member in Kuza Bandai area escaping an attempt on his life in the Kabal tehsil of Swat district.[27] A July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence have been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the peace committees. The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that ‘the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces’.[28] Reporting in Dawn indicated that security incidents in the Swat Valley in 2016 included fatal attacks on VDC members, police and people with an anti-Taliban profile,[29] including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in Bara Bandai and Manglore.[30]
[27] ‘Peace body member escapes attempt on life’, News International-Pakistan, 4 June 2016,
[28] ‘Restoring Swat’s lights’, The Friday Times, 29 July 2016,
[29] ‘Target killings: An unending wave in Swat’, Morning Post, 19 January 2016, ‘Shangla DSP killed in Swat’, Dawn, 13 April 2016,
[30] ‘Village defence body member, guard shot dead’, Dawn, 24 May 2016,
A Centre for Research and Security Studies report for the period April – June 2016 indicated that police officials appear to be the main target of violence in KP, followed by political activists belonging to the ANP and the pro-government peace committee members. It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[31]
[31] Security Report: April - June 2016, Center for Research and Security Studies, 28 July 2016, CIS38A80121410, p .18
In its 2016 Country Information Report, DFAT indicated that despite security operations against terrorist and militant groups, and measures adopted under the National Action Plan (to counter terrorism) having substantially reduced the level of generalised and sectarian violence throughout the country, incidents of target killings continued to occur in KP province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015.[32]
[32] Annual Security Assessment Report 2015, Pakistan Institute for Conflict and Security Studies pages 26-29.
The Tribunal finds that the relevant country information indicates that despite the military gaining control of Swat in 2009 and the resultant improvements in the overall security situation, the Taliban continued to launch attacks against military targets, anti-Taliban political activists, and those they consider support the Pakistan Army and government, including VDC members.
The Tribunal also considers that, given the nature of the role of peace/defence members in assisting the Army to identify Taliban members and supporters, and the consequences for those identified, there is enmity towards persons with memberships of peace committee not only from the TTP, but also from family members of some of those who were detained by the Army based on the advice of peace committee members.

As noted above, the delegate found that, while he accepted the applicant’s claims regarding the family’s experiences in Pakistan, he found the family had received protection from the Pakistan military and gave weight to the threats against the family not having resulted in serious harm to family members in the past. In this regard, the Tribunal finds it is relevant that, while the Taliban clearly has targeted village peace/defence committee members since 2009, the attacks have been sporadic and have only been successful in killing some of the people who were/are involved with peace committees. The killings appear to be opportunistic and to occur as circumstances allow, which would explain why they have continued over an extended period since 2009 (rather than all targeted peace committee members being killed within a short period of time).
Real chance of serious harm in the applicant’s home in Swat District
In relation to its consideration of whether the applicant would face a real chance of serious harm should he return to Pakistan now, the Tribunal has had regard to relevant country information regarding the current situation in Pakistan, based on the current DFAT Country Information Report, released in January 2022.[33]
[33] DFAT Country Information Report, Pakistan, 25 January 2022.
DFAT notes that, following a six-year downward trend noted by the Pakistan Institute for Peace Studies (PIPS), where terrorist attacks decreased from 1717 (2451 deaths) in 2013 to 146 (220 deaths) in 2020, the security situation in Pakistan has deteriorated since mid-2021. 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. DFAT comments that most attacks happen in Khyber Pakhtunkhwa and Balochistan.
DFAT states that in-country contacts have advised 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 (DFAT notes that TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021). 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.
In relation to ‘peace committees’ or ‘defence committees’, DFAT comments that multiple sources have stated that committee members and their families were targeted for violence by militant groups (especially the TTP).
DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.
The Tribunal considers that, given his personal and family background, it is likely that should he return to his home area with Swat Valley, the applicant would again be expected to undertake roles with his local peace committee, and that he is reasonably prominent member of his own local committee activities who is known to members of the Taliban as an informant and peace committee member. After carefully considering the available evidence and the relevant country information, the Tribunal accepts that should the applicant return to his home in the Swat district of KP, the risk of him suffering serious harm from the TTP or TTP sympathisers as a consequence of his actual opposition to the TPP and other Sunni militant groups cannot be dismissed as insubstantial or remote.
Accordingly, the Tribunal accepts that should the applicant return to his home in Swat district now or in the foreseeable future, there is a real chance he will face persecution involving serious harm from the TTP or TTP sympathisers. The Tribunal finds that the applicant’s actual or imputed anti-Taliban political opinions are the essential and significant reason for the harm, and that the persecutory conduct feared by the applicant is systematic and discriminatory.
Relocation in other parts of KP
Real chance of serious harm must relate to all areas of the receiving country. Section 5J(1)(c) of the Act requires that if the Tribunal finds the applicant faces a real chance of persecution involving serious harm if he returned to Pakistan, that must relate to all areas of the country.
In considering relocation, the Tribunal has considered whether there is a real chance of serious relates to the rest of the province Khyber Pakhtunkhwa outside of Swat Valley; and then the rest of Pakistan outside of Khyber Pakhtunkhwa Province
It is the applicant’s written and oral evidence that he has relocated to various places with KP Province, including Peshawar, Mardan and Buner District He claimed he has relocated with his wife and young children, but there were a number of radical Sunni terrorist attacks. While he was able to find work within these cities as well as accommodation, the applicant clearly sought such refuge in these Pashtun dominated population centres outside of Swat valley because he would encounter fewer linguistic and ethnic barriers to finding work and relative safety for his family. The applicant further claimed that he did not feel sufficiently safe in KP and returned to Swat valley, with some trepidation after fighting had sufficiently subdued in Swat and because he lived with the fear that Taliban from Swat valley would identify the applicant while residing in other KP population centres.
DFAT advises that most terror attacks happen in KP and Balochistan. While the Tribunal considers there is still a risk of harm to the applicant from the TTP should he relocate to certain areas in Pakistan outside of KP, such as Karachi, the Tribunal considers the country information indicates the risk of serious harm from the TTP is significantly lower in some other areas of the country, particularly Islamabad. DFAT comments that while Punjab and Sindh (especially Karachi) are also targeted for attacks, there were no attacks in Islamabad in 2020.
There is also emerging but credible reports that that Pakistani security forces (since the takeover of Afghanistan by the Taliban in August 2021) have lost effectiveness in its ability to suppress Pakistani Taliban activities. The USIP commented on 4 May 2022, that in April 21, in a major escalation, Pakistan carried out coordinated airstrikes inside Afghanistan at suspected TTP locations but ended up killing civilians. In response, the Taliban summoned Islamabad’s envoy in Kabul and the group’s defence minister, Mullah Yaqub, threatening retaliation in the event of more attacks, albeit without naming Pakistan. For its part, Pakistan lodged the strongest protest to date on the use of Afghan territory by terrorist groups and indicated that it may engage in cross-border action again:
But Pakistan may have also overplayed its hand: The strikes killed at least 20 children among other civilians. Contrary to official Pakistani claims, there are no credible reports of killed TTP leadership. More significantly, even if some pragmatists feel the need to keep hostilities with Pakistan in check, the Taliban at large appears unmoved, as the TTP’s status in and activities from Afghanistan remain unchanged. At the same time, anti-Pakistan sentiment within the Taliban appears to have surged, shoring up support for the TTP within the Taliban. Pakistani strikes have also reinvigorated anti-Pakistan sentiment across Afghanistan’s political spectrum, who see them as a violation of Afghan sovereignty. Standing up to Pakistan or even militarily responding has the potential to shore up the Taliban’s domestic political standing.[34]
[34] Pakistan’s Twin Taliban Problem, 4 May 2022, by Asfandary Mir, United States Institute of Peace, >
The South Asia Terrorism Portal reported that Khyber Pakhtunkhwa recorded a total of 303 fatalities (71 civilians, 108 SF personnel, and 124 terrorists) in 130 incidents of killing in 2021, as against 216 such fatalities (31 civilians, 57 SF personnel and 98 terrorists) in 78 such incidents in 2020. Registered an increase of 40.27 per cent in overall facilities. There were 130 facilities in 130 in 2019. Clearly overall violence increased sharply over 2019-2021.[35]
[35] Khyber Pakhtunkhwa – Assessment – 2022, SATP, >
It is the Tribunal’s assessment based on the available country information that the degree of security throughout KP has not reached a sufficient or effective level whereby the applicant does not have a well-founded fear of persecution based on s 5J(2). Indeed, it has dramatically deteriorated, especially for civilians. Given the lack of effective protection measures, The Tribunal is satisfied that the applicant does hold a well-founded fear of persecution based on his actual political opinion against the Taliban and other Sunni radicals and because of his known membership of a local peace committee from Swat valley, should he return anywhere within the applicant’s home province of Khyber Pakhtunkhwa.
Relocation within the rest of Pakistan
DFAT comments that, while internal migration is widespread and common in Pakistan, it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. DFAT also comments that across Pakistan, ethnic stereotyping, and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, 'the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.' In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. DFAT also notes that Pashtuns report frequent blocking of their CNICs when relocating, which impedes access to property and assets. DFAT states that NADRA can block a CNIC for suspicious use – or allegedly for certain groups as a form of harassment and indicates it understands individuals have found it impossible to reverse a decision to block a card, and blocking is a precursor to cancelling a card. DFAT indicates it is also aware of reports CNIC applicants have been told they must travel to a NADRA office in their district of origin to apply to renew their CNIC, but states this is not official policy. DFAT comments that in some cases it may be necessary for applicants to travel to their district of origin to obtain other documents required for a CNIC application, for example, a birth certificate can only be issued by the union council of the district of origin. While DFAT assesses that Pashtuns outside of KP generally face a low risk of official and/or societal discrimination, DFAT states the risk increases if they come to the attention of authorities 'for any reason'.
The Tribunal also notes that DFAT commented in its previous (February 2019) Country Information Report that Pashtuns migrating within Pakistan report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR 500,000 (AUD 5,500) on the threat of being listed as a terrorist. At that time DFAT assessed that Pashtuns faced a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab. The discrimination and harassment in Punjab were such that DFAT advised at that time that Pashtuns sought to avoid resettlement in Punjab altogether (despite it being Pakistan's most populous and one of the more secure provinces).
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.
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.
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.
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).[36]
[36] Poverty & Equity Brief: South Asia: Pakistan, April 2019, >
The Tribunal finds that the applicant's vulnerability to harm is marginally increased due to his suffering treatable mental health conditions.
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.
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 member of a village peace of defence committee and his ethnicity
Availability of state protection
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.

100. 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.
101. The applicant’s representative has pointed out that the authorities outside of KP where local Pashtuns received a degree of protection and assistance from the Army, recent developments outside of KP indicates a conspicuous level of scapegoating of Pashtuns by some political actors and a lack of protection for Pashtuns by the authorities.
102. 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[37]:
[37] 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.

103. This, as the applicant’s representative has described it, indicates an increasing willingness to employ draconian ‘anti-terrorism’ and sedition laws used against ethnic Pashtuns in urban capitals, as state authorities attempt to take a public stance against militancy.
104. 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: [38]
[38] DAWN, ‘Calls for Calm as Ethnic Strife Threatens Peace in Sindh,’ 15 July 2022 available
The 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.

105. 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 neighboring 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.[39]
[39] RFERL/Gandhara, ‘Pakistan’s Imran Khan Under Fire For Claiming Pashtuns are Taliban
Khan’s remarks on Pashtuns and the furor 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

106. 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 a 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.
107. 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).
108. 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.
109. 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).
110. 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
111. 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
112. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Brendan Darcy
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.
…

‘ANP leader killed in Swat’,
Dawn, 11 April 2016, policemen shot dead in Dherai’, Dawn, 12 January 2016,

‘Policeman killed and two others injured in Swat attack’, Dawn,
25 May 2016,

15 October 2021 available

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Remedies

Actions

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Citations

1807552 (Refugee) [2022] AATA 3844

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179

[2022] AATA 3844

24 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies