1815050 (Refugee)

1815050 (Refugee) [2023] AATA 4163 (3 August 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ellen Moore
CASE NUMBER:  1815050
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Mark Bishop
DATE OF DECISION:  3 August 2023
DATE CORRIGENDUM
SIGNED:29 November 2023
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

- in paragraph 62, replace ‘Tangu’ with ‘Kanju’

- in paragraph 63, replace ‘Lebanon’ with ‘Pakistan’

- in paragraph 65, replace ‘her’ with ‘his’.

Statement made on 29 November 2023 at 8:27am
Mark Bishop
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ellen Moore
CASE NUMBER:  1815050
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Mark Bishop
DATE:3 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 August 2023 at 3:44pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – ethnicity – Pashtun – particular social group – known activist against the Taliban – imputed political opinion – active member with strong connections and political alignment to the Village Defence Committee (VDC) and Awami National Party (ANP) – mental health - accessibility to mental health treatment – death threats made to the applicant and his family by the Taliban – family members killed by the Taliban – real chance of serious harm on return – no effective state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499, 866, 988
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 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 [in] November 2017. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 3 August 2023 to give evidence and present arguments. The Applicant provided copies of witness statements prior to the hearing. The Tribunal also received oral evidence from the following person:
·[Consultant Psychiatrist 1]
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.
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 applicant arrived in Australia [in] October 2017 as the holder of a Class ZM Subclass 988 Maritime Crew visa and as a deserter from vessel [name]at[Location]. [In] November 2017 the applicant lodged an Application for an XA 866 (Permanent Protection) visa and an associated Bridging visa was granted[1].
[1] DOC ID: 4346760
The following geographic and demographic matters relate to Pakistan:
Location – Kanju, Swat, KPK
Geographic and demographic data:
·Pakistan includes four provinces – Sindh (capital: Karachi), Punjab (capital: Lahore), Khyber Pakhtunkhwa (formerly the North-West Frontier Province and now including the former Federally Administered Tribal Areas; capital: Peshawar) and Baluchistan (capital: Quetta). Islamabad has its own status as a 'Federal Capital Territory'.
·All four provinces have their own elected provincial assemblies and governments. There are 170 districts in Pakistan[2]. Khyber Pakhtunkhwa is divided into 7 Divisions and 39 districts inclusive of the applicant’s District of Swat[3].
·The applicant comes from[Village 1], which is located in the Swat District, also known as Swat Valley, in the Malakand District of Malakand Division of Khyber Pakhtunkhwa Province.
·The Swat valley is located in the Swat District Northwest Frontier Province of Pakistan. At the time of the 2017 census the district had a population of 2,308,624, of which 1,171,947 were males and 1,136,545 females. Rural population was 1,612,803 (69.86%) while the urban population was 695,821 (30.14%)[4].
·Swat is mostly inhabited by Pashtuns who make up 90.78% of the population[5].
- [Village 1]is a village situated on the [information deleted]Swat in Swat District, Khyber Pakhtunkhwa, Pakistan[6].
- It is 3 kilometres away from [a village], the main city of Swat District, and about [number] kilometres from Saidu Sharif, the district's capital. It is situated on the bank of the River Swat. It is the first entry point to Nekpekhail (Nek Bi Khel) area[7].
- Malakand District lies in a strategically important position as it acts as a gateway to Bajaur, Lower Dir, Swat and Bunair[8].
- Malakand District is bounded in the north by Lower Dir District, in the east by Swat District, in the south east and south west by Mardan and Charsadda districts respectively and in the west by Mohmand and Bajaur agencies. The area of Malakand protected area is 952 km2[9]. It is relatively close to the Afghanistan Pakistan border[10].
- Prior to December 2022, it was clear that the Swat Valley in the Khyber Pakhtunkhwa Province (KPK) of Pakistan had been targeted by the Pakistan government for growth with large infrastructure funding around roads[11], bridges[12], and incentives for industry to relocate to the area, with traders who left during the Taliban era returning to Swat and its main city of Mingora once again becoming a business hub[13]. Critical to this development was the growth of the tourism industry, where many parts of the Swat Valley are highly regarded due to their historical and natural features such as their lush green scenic landscapes, waterfalls and streams, and alpine snow-peaked mountains and ski resorts, resulting in the Swat Valley often being called ‘the Switzerland of the East’[14] or the ‘Switzerland of Pakistan’[15]. The Tribunal has been unable to source recent tourism or industry related growth data, but with the resurgence of activist and terrorist groups and the Tehrik-i-Taliban (TTP) on the ground[16], it is difficult to conclude that the current economic conditions facilitate this ongoing growth, renewal and progress.
Summary of Claims
The delegate[17] summarised[18] the applicant’s claims for protection as follows:
[17] Department File[number deleted], DOC ID: 4390441
[18] Department Decision Record page 3, Department File [number deleted]
·He was born in[Village 1], Swat, Khyber Pakhtunkhwa (KP) Province, Pakistan
·He is a Pashtun and a Sunni Muslim, married with [children]
·He was a player and captain in the [team]. A former player was Awami National Party (ANP) leader [names deleted]
·Swat was a peaceful place until 2007 when Molvi Fazlullah began preaching against the government on an illegal FM radio station
·The applicant’s family are all supporters of the ANP. He has been an active campaigner for the ANP, including during the 2008 elections when he fixed party banners, managed political campaigns, distributed voter lists and attended polling booths
·The Taliban knew about their support of the ANP and a Taliban leader living nearby used to criticise them
·One day in 2008 they were stopped by the Taliban whilst travelling to the village of[Village 2]. They were asked why the women were not wearing Burkas and when he tried to argue with them he was beaten up
·The Taliban also came to their home and tried to recruit a family member and/or receive funding for their activities, but they refused
·He relocated to Karachi and stayed with his second cousin [Mr A]and [Mr B]who were both later killed by the Taliban
·In 2008-09 the Taliban killed two other cousins in Mingora city, [Mr C]and [Mr D]
·In May 2009 the Pakistan army launched an operation against the Taliban and he and his family were sent to an IDP camp in [City 1]
·He left for a [contract] in 2009 and returned to Swat in March 2010. Upon his return he was told that a Village Defence Committee (VDC) had been established and so he joined up
·He did night watches and assisted the Pakistani army whenever he could by pointing out Taliban houses and having them arrested
·The Taliban have targeted many ANP and VDC members. In January 2011 his second cousin was killed in Karachi by the Taliban
·In 2011 he was threatened by the Taliban after he helped the army to arrest some Taliban members. He left Swat and went to Karachi where he took a shipping contract from March 2011
·He returned in late February 2012 and continued working for the VDC. He also organised a [sport]tournament for the army
·In June 2012 the Taliban killed his cousin [Mr A] in Karachi. He left Karachi and moved into a town in [Province 1] before taking another [contract] in October 2012
·He returned in October 2013 and returned to Swat before leaving again in April 2014
·In January 2015 he was warned by his cousin not to return to [Village 1], Swat so he stayed in Karachi for a while before returning to Swat
·In June 2015 he took another [contract] and they sailed to Australia but he was not able to jump off. He returned to Karachi in May 2016
·He returned to Swat and stayed mainly at home. He was threatened by the Taliban again in April 2017 and began taking anti-depressants
·In July 2017 he took another [contract] and the ship reached Australia in October, where he jumped ship
·If he returns to Pakistan he’ll be killed by the Taliban and there is no state protection or place to relocate.
Additional information provided at interview
·He has travelled to [Country 1], [Country 2], [Country 3], [Country 4] and [Country 5] as a crew member
·He is married with [children]
·He joined the ANP in 2008
·He cannot provide his VDC ID card because he lost his wallet in Karachi in June 2015
·He cannot relocate to Karachi or anywhere because the security situation is worse than reported. The Taliban have many networks and he would have trouble buying a house and getting a job. Pashtuns are discriminated against elsewhere.
From applicant statement[19] dated 29 July 2021
[19] Tribunal File 1815050, DOC ID:8568283
The applicant reiterated his previous claims but additionally claimed the following:
·The applicant noted the delegate’s concerns in refusing his protection via that the applicant was a [occupation 1] who travelled frequently to and from Pakistan and often returned to [Village 1], meaning that the threats he received from the Taliban were implausible. The applicant states that he kept returning to Swat because he has a big family unit there, including his wife and [children], and couldn’t leave them alone[20].
[20] Ibid p.7.
·The expenses of living in Karachi would be very high and the discrimination against Pashtuns means the applicant would struggle to find accommodation and work[28].
[28] Ibid.
Decision Record Delegate Findings
In the decision record the delegate made a summary of findings as set out in the decision record[30]. The Tribunal provides the following summary:
[30] See part 5 of the Decision Record Department Decision Record pp.5-6, Department File [number deleted]
·The applicant was employed as a [job title deleted] member from July 2009 until October 2017
·The applicant was a member of the ANP as claimed and active in campaigning at a grass roots level during the elections of 2008
·The applicant was pulled out of his car in 2008 by Taliban members in Kabal, KPK and beaten up
·The applicant and his family were displaced to an IDP camp in [City 1], KPK in May 2009 when the Pakistan army launched an offensive against the Taliban in Swat Valley
·The applicant was never actively involved in a Lashkar or a Village Defence Committee
·The applicant was never targeted by the Taliban or any other fundamentalist organisation
Delegate Concerns
The delegate found the applicant’s claims not to be credible and had particular concerns regarding his claims to be a target of the Taliban. The delegate made the following findings as summarised by the Tribunal:
·The applicant has been a [job title] employed on contract from July 2009 until October 2017. The delegate accepted that once a [contract]expired he would return to his home in [Village 1], KPK, but did not accept that he would fill his time between contracts by fighting the Taliban, especially as the father of [children]
·As a [job title], the applicant had countless opportunities to jump ship previously. While the applicant stated that he was never able to disembark, he had visited Australia on multiple occasions previously and I consider that at every one of those occasions he could have jumped ship in the same way as he did on [in] October 2017.
·The applicant’s supporting evidence included a letter of reference from the ANP and the Social Welfare Society[information deleted]. However, DFAT has confirmed that fraudulent documents are readily available in Pakistan
Summary of Submissions made by representative dated 30 July 2021
Documents Submitted

Attached to the representatives’ submissions of 30 July 2021 were the following documents
·Applicant Statement dated 29 July 2021
·Family Tree
·Statement of [name deleted]([senior official], KPK, ANP) dated 26 March 2021
·ANP ID card with translation
·Support letter of [Mr E]([sport club]) dated 26 March 2021
·CNIC Card of Sher ALI
·FIR [information deleted] dated 18 June 2012
·‘ANP Leader, [Mr A]of [Village 1], killed in Karachi’[new paper outlet], 19 June 2012
·FIR of [Mr F] in relation murder of [Mr B] dated 14 January 2011
·Police Statement of [Mr F] in relation to [Mr B]
·Letter from [a]Foundation regarding the body of [Mr B] dated 14 January 2011
·Article ‘[Village 1]: The body of [Mr B], victim of targeted killing in Karachi, buried’ – translation
·CNIC of [Mr B]
·Postmortem Report of [Mr D] dated 30 December 2008
·CNIC of [Mr G]
·ANP Membership Card of [Mr G]
·Photographs of [Mr G] with ANP [officials]
·ANP Identity Card and CNIC of [Mr H]
·Photographs of [names deleted] (KPK Provincial [official] of ANP)
·Photographs of [a sport] Club
·Facebook Screenshots of [the applicant]
·Report of [Dr 2] (Psychiatrist) dated 7 January 2019
·Report of [Dr 1] (Psychiatrist) dated 6 April 2021
Summary of witness statements
The applicant provided copies of witness statements relating to each of the four witnesses. The Tribunal advised the applicant it did not challenge the witness statements. As a consequence the applicant determined to rely on the witness statements The Tribunal provides the following summaries:
Statement of [Dr 3].
·He grew up in the same village of [Village 1] as the applicant. The families grew up in close proximity. His family and the applicant’s family were both active in the ANP. He knows that the applicant was an active member of the VDC. He was a member of the VDC as well. He observed the applicant providing many forms of assistance to the army. He recalls being told the applicant’s family were targeted by the TTP as the news of this spread around their village. Upon arrival in Australia he helped the applicant get a job. The applicant has shared with him his fears the TTP will harm his family. The applicant is illiterate so [Dr 3] provides practical assistance.
Statement of [Mr I]
·He is 35 years of age and grew up in the same village as the applicant. The applicant is the first cousin of the statement writer’s father. His family is a big family . It is a politically active family. The statement writers father was politically active in the ANP. His father was a well known politician in the area and was [position] of the ANP on a number of occasions between 2013 and 2016. He knows the applicant was an active member of the ANP. He witnesses his activities in the ANP and in assisting the army. His father has received many threats from the TTP in the form of letter, telegram and in person. He recalls in 2008 Taliban commanders directly approaching their family with demands of extortion. His father told him the applicant was also the subject of threats from the Taliban. He also received direct threats in 2009 and 2010 from identified Taliban commanders. Because of these threats his father is confined to his house. His family in Pakistan have informed him the applicant’s family in Pakistan still receive threats from the Taliban.
Statement of [Mr J]
·The applicant is his second cousin. He grew up in the same village as the applicant. His family is large, politically active and heavily involved in the ANP. He was personally active in the youth federations of the ANP. He was a member of the VDC. He knows the applicant was politically active in the ANP. He observed the applicant in large ANP meetings. Whilst living in [Village 1] he and his family were under constant threat from the Taliban. A 16 year old family member was gunned down by the Taliban. He came to Australia as the holder of a student visa in 2013, applied for a Protection visa and this was granted by the Department because of fear of harm from the Taliban due to his and the applicant’s family profile as ANP and VDC members.
Report of [Dr 1][31]
[31] [Dr 1] is a consultant psychiatrist and fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP). He also holds specialist registration with medical board of Australian Health Practitioner Regulation Agency (AHPRA).
·[Dr 1]is a consultant psychiatrist. His report is dated 6 April 2021. He has treated the applicant since December 2019 predominantly on an outpatient basis. He diagnosed the applicant as having post-traumatic stress disorder (PTSD) on a background of alleged trauma and torture at the hands of a terrorist organisation (Taliban) while living in Swat Valley, Pakistan. He advised the applicant has “…been treated with a combination of psychotropic medication (Endep- Amitriptyline 25mg daily) for several years along with trauma focussed psychological support provided by GP, previous psychologist/ psychiatrist and myself. [The applicant]has reported that the current treatment helps to reduce intensity of his symptoms and has well tolerated the same…” The applicant has “…reported that he is terrified of returning to Pakistan due to fear of persecution by Taliban and would like to seek asylum in Australia. Based on information available, if he were to return to Pakistan, he will likely struggle to cope with fear of persecution from Taliban especially if he was to live isolated without family supports and trustworthy social networks…”
Updated report dated 3 August 2023 from [Dr 1]
·[Dr 1] provided a further psychiatrist report dated 3 August 2023. This report provided at the request of the Tribunal outlined the following:
o[Dr 1] has seen the applicant on 14 occasions since December 2014.
oThe history of treating the applicant, a diagnosis of PTSD and reports of “…experiencing stress, anxiety (mainly regarding his family’s welfare in Pakistan), insomnia (sleep disturbance) in context of intermittent nightmares, traumatic flashbacks and hyper-vigilance…”
o[The applicant’s] “…symptoms are chronic and persistent despite treatment with medication and psychosocial support. These symptoms affect his mood intermittently (significant stress, anxiety and depressed mood) in addition to very severe insomnia…”
oGiven the applicant ongoing struggles “…if he were to return to Pakistan, he will likely struggle to cope with fear of persecution from Taliban especially if he was to live isolated without family supports and trustworthy social networks. [The applicant] has needed increase in his medication and also sleeping pills in context of fear of returning to Pakistan and getting “killed” by Taliban…”
oIf the applicant should relocate to a different part of Pakistan he “…believes that he would be a target by Taliban regardless of relocating to a different area in Pakistan. Moreover, he has reported experience of discrimination within Pakistan due to his Pushto origin. This in turn will make it difficult for him to sustain in a different area in Pakistan…”
oThe applicant needs access to medical care and counselling. Absence of this, will likely affect his mental state significantly. The applicant needs ongoing support from medical professionals. His symptoms are chronic and persistent despite medical regime. He needs regular review of his medications with dosage adjustment. He will also benefit from trauma focussed psychological work and supportive psychotherapy.
oThe applicant’s causal factors are related to his traumatic past in Pakistan.
oThe applicant’s mental health difficulties are related to PTSD. His symptoms remain chronic and tend to escalate in context of fear of persecution by Taliban in the event of deportation back to Pakistan. Prognosis of his condition remains uncertain secondary to ongoing symptoms, geographical separation from his wife and kids and uncertainty regarding future (e.g. fear of deportation to Pakistan).
Evidence of [Dr 1]
·[Dr 1] gave evidence to the Tribunal as follows:
oHe outlined his qualifications, training and professional and background as a consultant psychiatrist.
oHe has acted as consultant psychiatrist to the applicant for three years and still consults with him.
oThe applicant suffers from PTSD caused by his fear of the Taliban. He displays clinical symptoms of PTSD.
oHis lengthy absences from home away from his family have not contributed to his PTSD.
oHis explanations as to his exposure to torture, the many murders of family members, the repeated threats of harm and pain from the Taliban have resulted in PTSD as demonstrated by his flashbacks, poor sleeping habits, and distress. This is made worse by exposure to news events that discuss the Taliban on tv.
oA return to his home province or any area of Pakistan absent job, absent family absent opportunity will be detrimental to his mental health.
oBack in Pakistan he needs to be able to access on a regular basis a consultant psychiatrist. He needs ongoing treatment. He needs treatment from a clinical psychologist who can address the PTSD.
oLiving in an area with a re-invigorated and active TTP will badly affect his mental health. His biggest fear is fear of the Taliban.
Representative Submissions
The representative provided written submissions summarised by the Tribunal as follows:
·The applicant fears harm on return to Pakistan due to[32]:
[32] Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.12
oHis high-profile association and support of the ANP
oHis work with the VDC and thus his actual and perceived anti-Taliban opinion
oMember of a particular social group – family members of leading ANP figures
oMember of a particular social group – VDC members of Swat Valley
oMember of a particular social group – known activists against the Taliban
oMember of a particular social group – secular/liberal residents of Swat Valley
oMember of a particular social group – returnees from Western countries to Swat Valley
·The well-founded fear of being persecuted is for reasons of the applicant’s membership or a particular social group and his actual or imputed political opinion[33]
[33] Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.13
oApplicant fears harm on account of political opinions actually held by home, or which may be imputed to him by his persecutors, due to his anti-Taliban political opinion which is also informed by his actual support of the ANP and his activities with the VDC.
oApplicant may also be imputed with a pro-government and pro-military stance by virtue of his status as a returnee from the West
oApplicant would continue to support the ANP if compelled to return to Pakistan and as such will be imputed with an anti-Taliban opinion
Country Information (CI)
·In respect of CI the representative submitted as follows:
oRepresentative submits that country information indicates that the situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Afghanistan[34].
oTargeted violence faced by perceived opponents of the Taliban and anti-Taliban activists who have acquired a local profile in Swat – this would include the applicant[35].
[34] Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.15
[35]Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.15
State Protection
The applicant will be unable to avail himself to effective state protection in relation to the harm he feels – dire inadequacy of the KPK government and state authorities in curbing militancy[36].
[36]Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.17
Internal Relocation
With respect to internal relocation the applicant submitted no region of Pakistan is safe from the threat the applicant fears of the Taliban and its associated military groups. The prevalence of generalised violence and sectarian conflict means that other areas of Pakistan are not safely accessible to him[37].
[37]Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.18
·The applicant faces the following barriers[38]:
oAbsence of social and family supports in other regions of the country
oDiscrimination against Pashtuns
oInadequate level of mental health care and treatment
oThe experience of subjective unsafety and insecurity that the applicant would experience on return to any region in Pakistan would be inimical to effective treatment of his PTSD
·There is limited and inadequate access to mental health care in Pakistan[39].
·The applicant’s profound subjective fear of returning to any region within Pakistan, given the precarious security situation in all regions, would trigger debilitating memories of his trauma in Swat and impede his everyday functioning[40].
·The applicant is a vulnerable person due to his PTSD and will be under enormous pressure to find employment to provide for his large family. The applicant has limited education and has only worked as [occupation] in Pakistan. He will be unable to return to this work because he absconded from the ship when he arrived in Australia[41].
[38]Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, pp. 25-26
[39]Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.28
[40]Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.30
[41]Tribunal File 1815050, DOC ID:8568283, AAT Submission 30-07-2021, p.30
Additional Representative Submissions[42]
[42]Tribunal File 1815050, DOC ID: 10875328
On 21 March 2023 the applicant provided further written submissions that addressed the following: Basis of fear of harm, CI re the Taliban in Swat, the Pashtun Tahafuzz Movement, State Protection, Internal Relocation, significant discrimination faced by Pashtuns in other regions of Pakistan and the economic impact of Covid-19 in Pakistan.
As the general security situation in the applicant’s home locale of [Village 1], Swat, Khyber Pakhtunkhwa (KP) province, Pakistan has changed dramatically since December 2022 the Tribunal provides the following detailed summaries:
Basis of fear of harm
The applicant fears harm on return to Pakistan on the basis of the following[43]:
·High-profile association with and support of the ANP
·Work with the VDC and thus his perceived and actual anti-Taliban opinion
·Membership of the following particular social groups:
oKnown activists against the Taliban
oSecular residents of Swat Valley
oReturnees from Western countries to Swat Valley
[43] Tribunal File 1815050, DOC ID: 10875328, pp.1-2
CI re the Taliban in Swat
The applicant submitted the following as summarised by the Tribunal.
·Recent country reports depict Pakistan as a country in a state of political turmoil, riven with internal political conflict regarding the approach to take towards militancy and its relationship with its immediate neighbours[44].
·DFAT - members of peace committees and their families are at moderate risk of violence by militant groups
·CI confirms the targeted violence faced by perceived opponents of the Taliban who have acquired a local profile in Swat – submitted this would include the applicant[45].
[44] Tribunal File 1815050, DOC ID: 10875328, p.2
[45] Tribunal File 1815050, DOC ID: 10875328, p.10
CI re the Pashtun Tahafuzz Movement
The applicant submitted the following as summarised by the Tribunal.
·The applicant also faces harm from local residents of [Village 3]aggrieved by the VDC and its close collaboration with the military. In particular, he faces harm and retribution from the family members of Taliban militants he reported directly to the army[46].
·Ci suggests a growing disquiet among the local population in Swat regarding the continued presence of the army[47]
·Rallies held by the local populations in Swabi, Bannu, Peshawar and Charsadda between 2018 and 2020 is evidence of the depth of ill-feeling and grievance towards the armed forces, which lends credence to the applicant’s fears that he may be targeted on return by the aggrieved and recently politicised victims of the military’s excesses[48].
[46] Tribunal File 1815050, DOC ID: 10875328, p.10
[47] Tribunal File 1815050, DOC ID: 10875328, p.10
[48] Tribunal File 1815050, DOC ID: 10875328, p.12
CI re State Protection
The applicant submitted the following as summarised by the Tribunal.
·The increasing degree of sectarian violence in KPK is evidence of the inadequacy of state protection in the region[49].
·The applicant cannot avail himself of effective state protection against the harm he fears from the Taliban[50].
[49] Tribunal File 1815050, DOC ID: 10875328, p.12
[50] Tribunal File 1815050, DOC ID: 10875328, p.13
CI re Internal Location
The applicant submitted the following as summarised by the Tribunal.
·Submitted that no part of Pakistan may be considered safe in the applicant’s circumstances and therefore the real chance of persecution should be taken to relate to all areas of Pakistan[51].
·Relocation to any region within Pakistan would be unreasonable and impracticable[52].
·Applicant is a highly vulnerable and psychologically infirm and would be forced to adjust to life, find accommodation and employment for himself in a place of relocation in the context where he has no immediate family support in other regions of Pakistan[53].
·The applicant’s mental health conditions are chronic and serious, and he has been receiving treatment for a number of years[54].
·December 2019 – the applicant received psychiatric treatment from [Dr 1] who has diagnosed the applicant with PTSD[55].
·If his psychological conditions were to worsen on his return to Pakistan, the applicant could not reasonably be expected to find gainful work or support himself. Even if his conditions were not to worsen, it is submitted that he would not be able to earn a sufficient income to provide for his wife and children by undertaking low skilled work in Pakistan[56].
·The applicant could not possibly access specialised mental health services on return to Pakistan, where the mental health doctor-to-patient ratio is one of the lowest in the world[57].
·Sufferers of mental health disorders in Pakistan are subjected to serious discrimination and social exclusion. Stigma and discrimination towards persons with disabilities is pervasive throughout Pakistan[58].
[51] Tribunal File 1815050, DOC ID: 10875328, p.13
[52] Tribunal File 1815050, DOC ID: 10875328, p.14
[53] Tribunal File 1815050, DOC ID: 10875328, p.16
[54] Tribunal File 1815050, DOC ID: 10875328, p.16.
[55] Tribunal File 1815050, DOC ID: 10875328, p.17.
[56] Tribunal File 1815050, DOC ID: 10875328, p.17
[57] Tribunal File 1815050, DOC ID: 10875328, p.17
[58] Tribunal File 1815050, DOC ID: 10875328, p.19
Significant discrimination faced by Pashtuns in other regions of Pakistan
The applicant submitted the following as summarised by the Tribunal.
·Submitted that there is growing discrimination and targeting of ethnic Pashtuns as militancy increases in Pakistan, as ethnic Pashtuns are increasingly being blamed by other ethnic communities for introducing or supporting militancy[59].
·Draconian anti-terrorism and sedition laws are increasingly being used against ethnic Pashtuns in urban capitals, as state authorities attempt to take a public stance against militancy[60].
[59] Tribunal File 1815050, DOC ID: 10875328, p.19
[60] Tribunal File 1815050, DOC ID: 10875328, p.21
Dire Economic Impact of COVID-19 in Pakistan

The applicant submitted the following as summarised by the Tribunal.
·The applicant has exclusively been employed in unskilled, low-skilled or informal positions (except for his position as a seaman). CI indicates that the applicant is likely to face formidable competition for low or semi-skilled employment in Pakistan in the current economic climate[61].
·The applicant is already a vulnerable person due to his PTSD and will be under enormous pressure to find employment so as to provide for his large family. He is unable to return to his work as a [occupation]as he absconded from the ship when he arrived in Australia[62].
·The applicant fears being unable to obtain other paid remunerative employment due to his age ([age] years) and mental health issues. If he could not find work, he would be without a means of subsistence on his return to Pakistan[63].
Country Information Pakistan
[61] Tribunal File 1815050, DOC ID: 10875328, p.22
[62] Tribunal File 1815050, DOC ID: 10875328, p.23
[63] Tribunal File 1815050, DOC ID: 10875328, p.23
Awami National Party (ANP)
The recent Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan sets out the following concerning the ANP in Pakistan:
·The Awami National Party (ANP) is a secular Pashtun nationalist political party. It was formed in 1986 and enjoys strong support in Khyber Pakhtunkhwa and Baluchistan. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government. Since 2018, ANP members have participated in large-scale demonstrations led by the PTM against human rights abuses against Pashtuns in the tribal regions of Pakistan[64].
·[Information deleted].DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The risk may be higher for ANP leaders. ANP leaders may also be at risk of official harassment due to their association with the PTM protest movement[65].
[Footnote deleted]
[65]Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 25 January 2022 Paragraph 3.75
CTC Sentinel located within the Combatting Terrorism Center at West Point
A recent report[66] from CTC Sentinel located within the Combatting Terrorism Center at West Point provides a comprehensive and current status report on The Tehrik-i-Taliban after the Taliban’s Afghanistan takeover. It sets out the following:
·With Pakistan engulfed by political and economic turmoil, the Tehrik-i-Taliban Pakistan (TTP) is again growing as a threat.
·With a solid organizational foundation and its eyes set on the Pakistani state, the TTP appears ready to follow in the footsteps of the Afghan Taliban and take control of territory in Pakistan’s tribal areas. The Taliban victory in Afghanistan has emboldened and strengthened the TTP. With the Taliban in control of Afghanistan and sympathetic to the TTP, the TTP now enjoys a level of ‘strategic depth’ that is arguably unparalleled in its history.
·The TTP has obtained new more sophisticated weapons and relocated fighter from Afghanistan to Pakistan and is now turning its focus back to its war against the Pakistani state. Over the past two years, the group has gone through a series of mergers, strengthened its media and operational activities, moved away from the indiscriminate targeting of civilians in suicide attacks, implemented a range of new internal policies centralizing its organizational structure, and settled on a localized strategy.
·In sum the Taliban victory in Afghanistan has emboldened and strengthened the TTP. With the Taliban in control of Afghanistan and sympathetic to the TTP, and the group no longer having to fear operations against it there, the TTP now enjoys a level of ‘strategic depth’ that is arguably unparalleled in its history.
·In the aftermath of the Taliban taking control of Afghanistan, four key developments have defined the TTP’s ensuing resurgence: a series of mergers, the adoption of a centralized organizational structure emulating the Afghan Taliban insurgency, growing operational activity, and a sharp strengthening in media operations.
·The TTP’s ascendant trajectory suggests that the current leader, Mufti Noor Wali Mehsud, appears to have been successful in defining and implementing a new strategy based on the group’s internal reform process, which was integral to its survival.
·It became clear in the negotiations with the government in 2022 that the group has limited its immediate objective to territorially controlling the tribal belt adjacent to Afghanistan. For now, this indicates that the TTP has placed limits on its insurgency in the realization that an Afghan Taliban-style victory in Pakistan is currently an unrealistic goal[67].
[66] May 2023 Volume 16, Issue 5
[67] CTC Sentinel May 2023 Volume 16, Issue 5 pages 1 to 10
Recent activity within the Swat District, KPK
Numerous sources outline the following developments with respect to the Swat District:
·August 2022 saw several reports the TTP had returned to Swat District following the June 2022 withdrawal of Pakistan army detachments; with reports the TTP was in control of mountainous parts of Matta tehsil where they were extorting businessmen, and that there had been a clash between TTP and police in Matta[68].
·There were reports of widespread fears among locals, and estimates of there being or 200-250[69], or even 400-500 militants back in Swat. The Pakistan military said the situation was grossly exaggerated, and that a small number of armed men on a few mountain tops between Swat and Dir had been observed, located far away from the population[70].
·In November 2022 it was reported that the TTP were threatening a provincial lawmaker (apparently a member of KPK’s Provincial Assembly who asked to remain anonymous) in Swat into paying sums totalling Rs1.2 million rupees; and who estimated 80 to 95 percent of well-off residents in surrounding districts are now victims of blackmailing, and that fellow legislators have been targeted for refusing to pay out[71].
·During 2023 there continued to appear occasional articles reporting a resurgence of the TTP in Swat, and expressing concern about this, and making broad reference to acts of extortion and attack by the TTP, but without providing details of any recent specific TTP perpetrated incidents in Swat in 2023[72].
·In 2022, attacks by these local Taliban groups were reported from 15 districts of KP, more frequently in Charsadda, Khyber, Kohat, North Waziristan, Bannu, Swat and Peshawar[73].
Recent activity in and around [Village 1], Swat District, KPK
[Village 1]The Tribunal has only been able to access limited information regarding attacks or terrorism activity in [Village 1] itself. CI about the wider Swat district and KPK indicates that the TTP are becoming bolder and conducting more activities in the district.
Reported instances of terrorism activity in [Village 1] in last 5 years:
·[Country information deleted][77].
[Footnote deleted[
·[In] March 2021: Two civilians and one Tehreek-e-Taliban Pakistan (TTP) militant was killed and another arrested during an intelligence-based operation in the [Village 1]area of [location deleted]on March 17, reports Dawn. The Inter-Services Public Relations (ISPR) said that two passers-by were killed after the militants opened fire on Security Forces (SFs). The slain militant, identified as Mukkarram, was a member of the Swat chapter of TTP. These militants were involved in attacks on SFs, target killings and school bombings, ISPR added[78].
[78] [Footnote deleted]
·8 June 2023: The Pakistani Taliban targeted security forces in a north western province in Pakistan on Thursday, killing two officers and a guard at a nearby bank, authorities said. The attack took place near a fruit market in the town of Mingora, located in the district of Swat in Khyber Pakhtunkhwa province, according to senior local police officer Shafiullah Khan. Police cordoned off the area and were searching for the three attackers who had fled the scene. The Pakistani Taliban — also known as Tehreek-e-Taliban Pakistan or TTP — claimed responsibility for the attack in a statement to the media. Thursday’s attack followed as shootout on Sunday between Pakistani troops and militants in North Waziristan, also a district in Khyber Pakhtunkhwa. The region is a former stronghold of the Pakistani Taliban.
Number of terrorism related incidents in [Village 1], Swat District[79], Whole of KPK[80] , and Whole of Country[81]
[Footnote deleted]
[Footnote deleted]
[Footnote deleted]
·Year 2009 – [Village 1] - Swat District 613 - KPK 1432 - Country 2790
·Year 2010 – [Village 1] - Swat District 119 - KPK 533 - Country 2204
·Year 2011 – [Village 1]- Swat District 28 - KPK 506 - Country 2799
·Year 2012 – [Village 1] - Swat District 20 - KPK 517 - Country 3668
·Year 2013 – [Village 1] - Swat District 18 - KPK 504 - Country 3923
·Year 2014 – [Village 1] - Swat District 25 - KPK 356 - Country 2779
·Year 2015 - [Village 1] - Swat District 15 - KPK 278 - Country 1773
·Year 2016 - [Village 1] - Swat District 17 - KPK 205 - Country 1032
·Year 2017 – [Village 1]- Swat District 5 - KPK 86 - Country - 606
·Year 2018 - [Village 1] - Swat District 1 - KPK 73 - Country - 325
·Year 2019 - [Village 1] - Swat District 1 - KPK 105 - Country - 284
·Year 2020 – [Village 1]- Swat District 3 - KPK 99 - Country - 319
·Year 2021 – [Village 1]- Swat District 1 - KPK 168 - Country - 424
·Year 2022 – [Village 1]- Swat District 7 - KPK 225 - Country - 630
·Year 2023 – [Village 1]- Swat District 2 - KPK 170 - Country - 417
Numbers of KPK[82] Districts with no recorded Terrorism Incidents[83]
[Footnote deleted]
[Footnote deleted]
·Year 2009 - 4
·Year 2010 - 8
·Year 2011 - 5
·Year 2012 - 7
·Year 2013 - 7
·Year 2014 - 10
·Year 2015 - 12
·Year 2016 - 11
·Year 2017 - 15
·Year 2018 - 13
·Year 2019 - 9
·Year 2020 - 14
·Year 2021 - 8
·Year 2022 - 12
·Year 2023 - 14
The data contained in the tables set out immediately above in paragraph 32 is consistent with the various sources of newspaper articles, NGO reports and government reports referred to and cited in paragraphs 30 to 32 above. It is also strongly supportive of the conclusions set out in the analysis of the CTC Sentinel report as set out in paragraph 29 above. Tribunal analysis leads to the following conclusions:
·The number of terrorism related incidents in Pakistan declined significantly in the period 2009 to 2023[84].
·The number of terrorism related incidents in Pakistan almost doubled from a low base of 424 in calendar year 2021 to more than 800 in calendar year 2023.
·The number of terrorism related incidents in KPK Province remained high in the period 2009 to 2017 albeit declining from a high base over time.
·The number of terrorism related incidents in KPK Province has increased dramatically from calendar year 2018 until the present time with a further significant increase in calendar years 2022 and 2023.
·The number of KPK Districts without terrorism related incidents remained minimal in the years 2009 to 2017 and in the years 2018 until present were marginally above long term averages.
·In more recent years the number of terrorist related incidents in the Swat District appear to have stabilised at a historically low level.
[Footnote deleted]
Relocation Pashtun Ethnicity
The latest DFAT CI Report for Pakistan dated 25 January 2022 reveals the following:
·Para 3.1: Pakistan is home to five major ethnic groups and many smaller ones. According to the CIA World Factbook, the population is 44.7 per cent Punjabi, 15.4 per cent Pashtun, 14.1 per cent Sindhi, 8.4 per cent Saraiki, 7.6 per cent Muhajirs, 3.6 per cent Balochi, and 6.3 per cent others.
·Para 3.13: The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair-skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse… Pashtuns speak an Eastern Iranian language called Pashto.
·Para 3.14: There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Baluchistan, Islamabad, Lahore and elsewhere.
·Para 3.17: Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Baluchistan.
·Para 3:18: DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Baluchistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns (see Turis, Bangash).
·Pashtuns are an Eastern Iranian ethnic group[85] primarily residing in southern and eastern Afghanistan and north-western Pakistan. There is no cultural or physical difference between Pakistani Pakhtuns and Afghani Pashtuns (an interchangeable term), (also known as Pakhtoon, Pukhtoon, Pashtoons, or Pathans), apart from language - Pakhtun (Pashto) - regional dialect differences[86].
·Pashtuns are increasingly subjected to ethnic stereotyping and profiling. Pashtuns (also known as Pashtoon, Pushtoon, Pathan and Pukhtoon)[87] compromise 15.4 per cent of the Pakistani population.[88] Pashtuns have historically been portrayed as ‘violent’ and regularly associated with the Tehrik-e Taliban Pakistan (TTP) which has led to official discrimination and ethnic profiling.[89]
·The International Center of Non-Violent Conflict (ICNC) in their September 2021 report[90] noted Pashtuns were victimised within Pakistan in four distinct ways: effects of the war on Afghanistan - which placed strict war-time curfews on people living in the former FATA (these curfews limited their access to food, water, and healthcare and massive displacement caused by bombings, airstrikes, and firings into civilian crowds); secondly Pashtuns were targeted by the foreign fighters (mostly Taliban members) fleeing Afghanistan (as these foreign fighters settled in to the former FATA areas they began to radicalize local youth); thirdly Pashtuns were victims of Pakistan’s policies targeting the Taliban – with the objective of driving ‘out the “Bad Taliban” (the TTP) from the region’; and lastly Pashtuns were subjected disciplinary measures by the Pakistani security policy that often ‘conflated ethnicity with extremist ideology’ (including harassment at security checkpoints, extortion, enforced disappearances of local men, and targeted killings of tribal elders).[91]
·News sources indicate the racial profiling of Pashtuns happened to those who ‘are living or working outside their ancestral lands’ and to those ‘living and working in the city.[92]’ Several news sites regularly report Punjab province as an area of concern regarding racial profiling[93]. However racial profiling, as discussed above has occurred at state level with former Prime Minister Imran Khan’s comments associating Pashtuns with the Taliban[94].
[85] Pakistan - Wikipedia
[86] 'Pakistan/Afghanistan: 20220829114606 – Difference between Sunni Pakhtun from Afghanistan and Pakistan – Pakhtun diaspora',
[87] 'Pakistan's 'Tribal' Pashtuns, Their 'Violent' Representation, and the Pashtun Tahafuz Movement', Farooq
[88] 'Ethnic Groups In Pakistan', John Misachi, World Atlas, 29 July 2019, 20220627110233
[89] 'Pakistan's 'Tribal' Pashtuns, Their 'Violent' Representation, and the Pashtun Tahafuz Movement', Farooq
[90] ‘The Pashtun Protection Movement (PTM) in Pakistan', Qamar Jafri, International Center on Nonviolent
[91] 'The Pashtun Protection Movement (PTM) in Pakistan', Qamar Jafri, International Center on Nonviolent
[92] 'Pashtuns Claim Ethnic Profiling During Pakistan Extremism Crackdown', Sadaqat Jan and Paul
[93] 'Pashtuns Claim Ethnic Profiling During Pakistan Extremism Crackdown', Sadaqat Jan and Paul
[94] 'Pakistan’s Imran Khan Under Fire For Claiming Pashtuns Are Taliban Sympathizers', Abubakar
State Protection

The latest DFAT CI Report for Pakistan dated 25 January 2022 reveals the following:
·Para 5.1: Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).
·Para 5.2: Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
·Para 5.5: There are widespread, credible reports of human rights abuses by the Pakistani security services, including the military and intelligence services. The ISI has been accused of extrajudicial killings, enforced disappearances and torture. The ISI is also alleged to have high-level links with militant groups, including the Taliban, and to tolerate their presence in Pakistan as a hedge against India and Afghanistan.
·A range of factors has limited state protection. Prosecution for politically motivated or sectarian violence is rare, and political will, resource shortages, corruption, and socio-economic factors at the individual level have all contributed to limited availability of protection[95]. The government has been criticised for failing to hold law enforcement agencies accountable for serious abuses[96], and failure to punish perpetrators of abuse has fostered a culture of impunity[97]. Despite continuing campaigns by military, police and other law enforcement agencies, acts of violence, abuse, and intolerance by militant organisations and other non-state actors have continued to contribute to a culture of lawlessness[98].
[95] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 24 January 2022, s. 5.2, p. 40,
[96] 'Human Rights Watch World Report 2023', Human Rights Watch (HRW), 11 January 2023, p. 470
[97] 'Country Reports on Human Rights Practices for 2022 – Pakistan', US Department of State, 19 March 2023,
[98] 'Country Reports on Human Rights Practices for 2022 – Pakistan', US Department of State, 19 March 2023,
Karachi
Tribunal researches concerning the city of Karachi reveal the following:
·Karachi is the largest city in Pakistan and 12th largest in the world, with a population of over 20 million. It is situated at the southern tip of the country along the Arabian Sea coast. It is the former capital of Pakistan and capital of the province of Sindh[99].
·Karachi is Pakistan's most cosmopolitan city, linguistically, ethnically, and religiously diverse, as well as one of Pakistan's most socially liberal cities[100].
·Known as the "City of Lights" in the 1960s and 1970s for its vibrant nightlife[101], Karachi was beset by sharp ethnic, sectarian, and political conflict in the 1980s with the large-scale arrival of weaponry during the Soviet–Afghan War[102]. The city had become well known for its high rates of violent crime, but recorded crimes sharply decreased following a crackdown operation against criminals, the MQM political party, and Islamist militants, initiated in 2013 by the Pakistan Rangers[103]. As a result of the operation, Karachi dropped from being ranked the world's 6th-most dangerous city for crime in 2014, to 128th by 2022[104].
[99] Gayer, Laurent (2014). Karachi: Ordered Disorder and the Struggle for the City. Oxford University Press. p. 18. ISBN 978-0-19-023806-3.
[102] "2011 brings a violent and bloody year of ethnic conflict to Karachi, Pakistan". Public Radio International. 19 January 2012. Retrieved 16 October 2016.
[103] ur-Rehman, Zia (7 November 2015). "Crime Down in Karachi, Paramilitary in Pakistan Shifts Focus". The New York Times. Archived from the original on 3 January 2022.
[104] "Karachi's ranking improves on World Crime Index". Retrieved 2 May 2021.

[Voyages]

The applicant is a [occupation]and has travelled often away from his home as part of his employment. His family live in the Swat District, also known as Swat Valley, in the Malakand District of Malakand Division of Khyber Pakhtunkhwa Province. This is an area of interest to the TTP and as outlined above and is a geographic area of current strategic concentration for the TTP[105]. In addition the applicant is a person of Pashtun ethnicity. The Tribunal provides the following time line of his voyages as a [occupation].

[105] See paragraph 29 above.

·May 2009 – Applicant and family are evacuated from Swat due to a military operation and moved to a camp in[City 1][106], before moving to Sawabi[107]
[106] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.6
[107] Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.5
·June 2009 – Applicant obtains a [contract] and departs Pakistan, travelling to [Country 1], [Country 2], [Country 3], [Country 4, and [Country 5][108]
[108] Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.5
·March 2010 – Applicant returns to Karachi, then [Village 1] Swat where he claims to have joined the VDC[109]
[109] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.6
·Early 2011 – Applicant departs Swat and travels to Karachi as a result of telephone threats from the Taliban after assisting the Army in January 2011 to arrest Taliban members[110]
[110] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.6
·March 2011 – Applicant departed Swat and travelled to Karachi after obtaining a [contract], then departs Pakistan[111]
[111] Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.5
·Late February 2012 – Applicant returns to [Village 1], Swat after completing the [contract] and resumes VDC activities[112].
·June 2012 – Applicant moves to Sindh province after his cousin is killed by the Taliban with whom he was residing[113].
·October 2012 – Applicant departs Pakistan on a [contract][114].
·October 2013 – Applicant returns to [Village 1], Swat on completion of shipping contract. He does not resume VDC activities due to concerns for his safety and limits his activities to the family home[115].
·April 2014 – Applicant departs [Village 1], Swat on a [contract][116].
·January 2015 – Applicant returns to Pakistan on conclusion of shipping contract. Returns to Karachi due to a warning from his cousin not to return to [Village 1] as the Taliban were searching for him[117][118].
·June 2015 – Applicant departs Pakistan on a [contract]. Ship travels to Australia but the applicant claims he was unable to jump off the ship while docked in Australia[119].
·May 2016 – Applicant returns to Karachi, Pakistan at the conclusion of his [contract][120]. Applicant returns to Swat to visit his family, but limits activities to family home[121].
·July 2017 – Applicant departs Swat on shipping contract, travelling to Karachi before departing Pakistan[122]
·3 October 2017 – Applicant arrives in Australia as the holder of a Class ZM Subclass 988 Maritime Crew visa and deserts the vessel [vessel name]at[location][123]
[112] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[113] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[114] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[115] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[116] Department Decision Record, Department File[number deleted], p.3
[117] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[119] Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[120] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[121] Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[122] Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.8
[123] Department Decision Record, Department File[number deleted], p.2

Time spent in Pakistan between 2009 and 2017

The information contained in the following table is sourced from the applicant’s statement dated 29 July 2021, Representative submission dated 30 July 2021 and Department Decision record. The table shows that in the period 2009 and 2017 the applicant spent an approximate period of 33 months in Pakistan. Detail as follows:

·May 2009 to June 2009 – 1 month
·March 2010 to March 2011[124] – 12 months
·Late February 2012 to October 2012[125] – 7 months
·October 2013 to April 2014[126] – 6 months
·January 2015 to June 2015[127] – 5 months
·May 2016 to July 2017[128] – 2 months
·Total: 33 months (or 2 years 9 months)
[124] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.6, Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.5
[125] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[126] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7, Department Decision Record, Department File [number deleted], p.3
[127] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7, Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[128] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7, Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.8

Time spent outside Pakistan between 2009 and 2017

The information in the following table is sourced from applicant’s statement dated 29 July 2021, Representative submission dated 30 July 2021 and Department Decision record. The table shows the applicant spent an approximate period of 52 months (or,4 years, 4 months) in the period 2009 and 2017outside of Pakistan. Detail as follows:

·    June 2009 to March 2010[129] – 9 months
·    March 2011 to Late February 2012[130] – 11 months
·    October 2012 to October 2013[131] - 12 months
·    April 2014 to January 2015[132] - 9 months
·    June 2015 to May 2016[133] - 11 months
·    Total: 52 months (or 4 years, 4 months)
[129] Statement of [the applicant] dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.5, Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.6
[130] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[131] Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7
[132] Department Decision Record, Department File[number deleted], p.3, Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7, Statement of [the applicant]dated 29 July 2021,
[133] Statement of [the applicant] dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7, Representative Submission dated 30 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7

It is clear from the summary of sea voyages and detail relating to time spent inside and outside of Pakistan as set out in paragraphs 37 to 39 above the applicant regularly departed from Pakistan pursuant to employment contracts of varying duration. After each voyage he would return to Karachi in the south of Pakistan or his home district of Swat in the NW province of KP. Both of these areas have significant concentrations of people of Pashtun ethnicity[134]. Generally in the period 2009 until 2017 he resided in the Swat Valley although the Tribunal notes occasional visits to Karachi. Hence in the lengthy time periods spent in his home locale or in transit to and from Karachi the applicant had the opportunity to involve himself in and engage with local people as to matters of local political interest. As a Pashtun this would necessarily require his engagement with local TTP officials, activist or supporters and arguably on the ground fighters to a significant degree. As an ANP activist to some degree and coming from an activist ANP family over many years that had suffered multiple deaths at the hands of the terrorist groups like TTP in its various iterations it is not unreasonable to conclude the applicant and his family would be well known again to local TTP officials, activist or supporters and arguably on the ground fighters.

[134] See paragraphs 13, 33 and 35 above.

In evidence to the Tribunal the applicant advised as follows:

Family
·His wife and [children] [aged]live in the nearby village of [Village 2] in the home of his father-in-law approximately 30 to 40 minutes’ drive from his home village of [Village 1]. They live there for reasons of safety at his insistence.
·He is functionally illiterate but does have a passing understanding of written English, Urdu and Pashtun. He relied on the assistance of a Pashtun speaking interpreter during the hearing.
·He thinks his village of [Village 1] has a population of about to about [number]persons. He described it as large.
·He has a large number of extended family members living in and around his home village of [Village 1]
·He supports his family from Australia and remits approximately A$1,000 per month to his family. He advised the Tribunal that notwithstanding high costs in Pakistan the remittances were substantial when converted to local currency. He owns his own home in [Village 1].
·He advised his family in [Village 1] are wealthy, successful and influential[information deleted].
·His children attend a local school in [Village 2]. A family member takes them to school and picks them up of an afternoon.
·In Australia he lives in a share house with 4 other Pashtun men. He works as a [job]as a 38 hour per week casual employee.
ANP engagement
·He advised he comes from the [tribe] and his family affiliation with the ANP goes back generations and started with his grandparents. He regards it as completely natural to be involved in the ANP. It has been a central focus of his family life.
·In the 2008 election campaign he was heavily involved in all aspects of the campaign. He provided detail to the Tribunal. The engagement with the ANP was intensive, extensive and continued over decades. Thereafter when home and in between elections he was actively involved in proselytizing on behalf of the ANP. He is well known as his family as being activists within the ANP. He has not held political, elected or executive office in the ANP as he believes his education standards are too low to hold such important positions.
Taliban engagement
·His engagement with the Taliban in and around his home village of [Village 1] has been continuing, against his will and demanded by activists in the village who are associated with or affiliated with the Taliban.
·He is very active in local sports associations and regularly coaches groups of young men in [sport]. Within his community he is considered a leader of these young men. The Taliban regularly approached him for access to these young men, to provide funds for weapons and other purposes, and to train their members in necessary fitness and health skills. He continually resisted all these approaches because he is opposed to the principles or policies of the Taliban. If he had joined the Taliban all the young men in the soccer club would have followed his example as he is their leader. He knew the Taliban were after access to a source of young men they could use as fighters.
·He hates the Taliban because they kill members of his family. He hates the Taliban because they have killed friends of his in and around [Village 1]. He has witnessed their threats, intimidation and violence against members of his immediate family when threats of extortion and violence were made against him and his wife. He hates the Taliban because they destroy schools and hospitals. As an ANP member he lobbies for additional government funding for new school, hospitals and like infrastructure.
VDC engagement
·He has actively participated in his Village Defence Committee (VDC) for many years. Of course his activity was limited by being away from home for so long. When home he attended meetings, provided guidance and support to Pakistani army and intelligence services who were waging a campaign against Taliban militants. He did this by pointing out known TTP Members or supporters. He did this by taking the army to their homes. This often resulted in the army destroying the homes of Taliban militants, friends, family, activist and supporters.
·As part of his participation in the VDC he organise village watch committees who kept guard over the village every night.. he regularly had meetings with the military and provided them with detailed information they would otherwise be able to access. He was actively involved with the army in the issue of safe passes to village returnees.
·In his village there was considerable support for the Taliban. As a consequence of his actions he had a large number of enemies in his own village.
·He cannot return to his home village of [Village 1]as he is known as an active anti-Taliban person. He believes the Taliban would be unable to forgive him. He believes the Taliban would actively search him out for punishment.
Mental condition
·His mental state is not stable. He has been receiving psychiatric assistance for three years in Australia. If he returned to his home he would have to be confined to the four walls of his home as it would be unsafe outside his home. The thought of this stresses him. He knows how bad it would be as a cousin is going through this degree of trauma at the moment. The facilities do not exist in his village or nearby cities of the quality and type available in Australia.
·He was referred to his consulting Indian psychiatrist by another doctor. He has confidence in this consultant psychiatrist.
·He cannot relocate to another province Karachi or another part of Pakistan for the following reasons:
oThe Swat Taliban have the capacity to reach out and locate him as they have networks all through Pakistan.
oLarge parts of the country are anti-Pashtun as they (correctly) believe large elements of the Pashtun community are strongly supportive of the Taliban and their activities particularly in the border province of KP.
oHe believes a large section of the non-Pashtun Pakistan community is racist against Pashtuns because they are ethnically distinct, easily recognisable and in seeking government or community assistance his ID card discloses he is a Pashtun man. Even to rent a house and find a job would require him to disclose his ethnicity.
oHe does not believe the police would provide him with a clearance certificate or card because they, in turn, are anti-Pashtun, engaged in discriminatory practices and often corrupt.

·He needs to find a job, get back with his family and live in an environment of family support and contact. If successful in his Protection Visa Application his wife and family would immediately join him in Australia. He continually worries about the safety of his family in Pakistan. He feels helpless. He cannot do anything about their situation.
·In Melbourne he is active in the local ANP association and attends assembly, political and social functions within the Pashtun community. Attendance at these events enables him to keep on top of current affairs in Pakistan.

At the conclusion of the review hearing the solicitor for the applicant submitted as follows:
·    Over time the applicant has provided a consistent narrative supported by appropriate documentation to the Department and Tribunal. His evidence to the Tribunal was consistent with his written submissions.
·    He has given evidence of his ANP membership and political activities within and on behalf of that organisation.
·    He has provided extensive detail as to his role within the VDC.
·    His activities over time in giving support to the Pakistani state, his family background, his family involvement with the ANP now extending over generations, his refusal to assist the TTP, his work against the Taliban show he is most likely to be a target for violent Taliban retribution of he should return to his home province or anywhere in Pakistan.
·    The revival, reorganisation, restructuring and current positioning of the Taliban in the KP Province make him an obvious target for their attention if he should return.
·    Little police protection or state protection is available. Recent instances of Taliban attacks on VDC members throughout the KP Province are not isolated but show a pattern of behaviour.
·    High profile ANP members and their families are currently the target of violent action by Taliban elements, activists, soldiers and supporters in and around KP Province. The authorities struggle to provide protection.
·    No area of Pakistan is completely risk free. Relocation is not an option. It would be unreasonable to require an illiterate, unskilled man absent family support and in need of ongoing mental health assistance to relocate to any area devoid of these necessary support mechanisms.
Evidence, Findings, Analysis and Conclusions
The Tribunal finds as follows:
·The applicant grew up in a secular Pashtun family in the village of [Village 1]. He and his family were active in the ANP.
·He was a member of the VDC in the village of [Village 1].
·Many of the applicant’s family and friends were also active to varying degrees in the ANP and the local VDC.
·The applicant was an active participant in his VDC upon returns to his home village post overseas trips.
·The applicant was active in providing assistance to the Pakistani army as part of its fight against the TTP in the KP Province of Pakistan.
·Many of the applicant’s family and friends have received direct threats from the Taliban over a period of many years.
·These threats were related to the applicant, his family inclusive of his wider family and his friends activities in the ANP and the VDC.
·On and from December 2022 TTP activities in and around the Swat District have increased by a significant degree to such an extent that it is likely the applicant and his family would be and are in danger if they should return to any part of KP.
·The applicant suffers from severe PTSD occasioned by his fear of the Taliban and their likely retribution against him and his family if he should return to his home village or anywhere else in KP Province.
·The applicant need to be able to access continuing mental health treatment from a suitable trained professional in the field of psychiatry or psychology as appropriate.
·Such continuing mental health treatment is unlikely to be readily available in his home village or nearby cities in KP Province.
·He will suffer discrimination in other parts of Pakistan, particularly Karachi on account of his Pashtun ethnicity.
·Adequate police protection or state protection is not accessible by the applicant on account of his Pashtun ethnicity, police corruption and likely police interference because of oftentimes loyalty or obligations to wider considerations not directly related to the applicant or his background as an anti-Taliban activist in the KP Province of Pakistan.
Pakistan is a large, diverse country with extremes of living standards in the cities and rural areas alike. It is not difficult to draw specialised or exact conclusions or recommendations from a pattern of behaviour or events over time or in a particular geographic area no matter how large. It is difficult, however, to draw conclusions that have generalised application from localised, sectionalised or specialised events or occurrences.
Hence in this review application simply because there may have been sporadic or isolated examples of terrorist behaviour in particular years in a particular locale or particular province it does not automatically follow those examples are the norm. In fact they may be the opposite or now regarded as an aberration or anachronism because of pushback by local actors who object to the indiscriminate use of violence.
In this review application the Tribunal has given strong weight to the theoretical explanation and conceptual overview outlined in the literature as to the immediate strategic objectives of the TTP. The Tribunal has tested those explanations with a critical examination of the widely available public data as to the incidence of terrorism related incidents in KP Province and Pakistan over the last two decades. It has not relied only on the written submissions and oral evidence. In this context the Tribunal gives significant weight to the written submissions and evidence of the consultant psychiatrist [Dr 1]and gives weight to the written statements of family and friends of the applicant.
The Tribunal has tested those written submissions and oral evidence against relevant empirical data. Somewhat unusually in an Application for a Protection Visa analysis of the the empirical data supports the submissions repeatedly put by the applicant to the Department and Tribunal over time.
There are, of course some mistakes, a minor degree of embellishment or exaggeration and on occasion unsupported conclusions in the written submissions of the applicant. The Tribunal considers these details to be relatively insignificant and does not interfere with the central proposition put forward by the applicant.
In this review application there is considerable evidence that it is not localised, sectionalised, rare, aberrant or specialised events or occurrences that cause the Tribunal to have concerns the applicant will fact the prospect of real harm should he return to his home village, nearby towns or cities in the Northwestern province of KP, the wider Swat valley area of KP or elsewhere in major cities like Karachi.
Rather the evidence is clear. It appears the applicant should not return to any population centre in his home province of KP because of his and his families’ politics. It appears he cannot relocate elsewhere in Pakistan because of his Pashtun ethnicity. It appears state protection is not a meaningful option to which the applicant can turn as many of the arms of the state in Pakistan are either compromised, politically motivated or captured by groups like the TTP for wider historic geographical and political reasons.
It is clear from the above CI that the TTP has re-organised its internal structures, imposed a significant degree of centralised control over its activists, retains a significant presence in Khyber Pakhtunkhwa (formerly the North-West Frontier Province) and post the break-down of peace talks with the Pakistani Government has re-invigorated it’s on the ground activities including the use of violence, extortion, localised attacks and ongoing threats. These activities have occurred mainly in the Swat Valley area of Khyber Pakhtunkhwa Province with the clear purpose of taking territorial control of the tribal belt adjacent to Afghanistan.
As was stated in paragraph 14 above the applicant was born, raised and lived in born in [Village 1], Swat, Khyber Pakhtunkhwa (KP) province, Pakistan. He has lived and raised a family in what might be described at time of decision as “the eye of the storm”.
It is correct to observe that whole of country terrorism related incidents in Pakistan generally declined over time from 2017 with an up kick in 2022/2023 due to the breakdown of Government Taliban peace talks and a consequent call to arms by the Taliban. However as is directly relevant in this review application that call to arms has to date been concentrated in the applicant’s home province of Khyber Pakhtunkhwa.
The statistics cited above show that while there has been a significant decline over the last 6 years in the aggregate number of terrorist incidents across the whole of Pakistan there has been an alarming, almost double the number of terrorist incidents in the applicant’s home province of KP[135]. This growth in the numbers of terrorist incidents in KP Province is not accidental. It reflects a strategic decision made by the TTP to concentrate their activities in the north west of Pakistan in areas immediately adjacent to the Afghanistan border[136]. The evidence before the Tribunal as derived from the whole of CI sources is that the TTP is in the process of withdrawing from the whole of Pakistan and intends to concentrate its terrorist activities in the foreseeable future in and around the KP Province.
[Footnote deleted]
[136] For full detail see paragraph 29 above.
The question thus becomes does the applicant have a well-founded fear of being persecuted for reasons of the applicant’s membership or a particular social group[137] and his actual or imputed political opinion and is there is a real chance he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country.
[137] For full detail of applicant claims re a particular social group see paragraphs 16 and 21 above.
As is clear from this decision record the applicant has provided to the Department and Tribunal over time a mass of information. Most of that information related to the applicant’s family, life, career, ethnicity, family participation and activism within local and national politics and his trenchant and continuing opposition to the activities of the TTP over a period of 2 decades. He and his family have been brave, resourceful and committed to their set of beliefs. They have faced both outside violent opposition and local opponents who hold them responsible for their own family losses in what can only be described as a continuing horrific war zone in most of KP Province.
The Tribunal gives strong weight to the various CI sources set out and discussed throughout this decision record. The Tribunal is of the view that a Pashtun man with a family history of activism within a secular ANP, active in his local VDC and known through family connections and deaths in battle to be implacably opposed to the various iterations of the TTP over time is a man living on borrowed time when he is at home and living with his family in their traditional home area of KP Province.
The Tribunal is of the view the applicant faces a real chance of persecution on account of his high profile and continuing association with and support of the ANP, service in the VDC and perceived and actual anti TTP opinion and membership of the particular social groups (known activists against the Taliban, secular residents of Swat Valley and as a returnee from a western country).
He faces these dangers in [Village 1], the Swat District or more likely than not anywhere else in KP Province. The Tribunal is of the view the applicant faces a real chance of persecution in his home village of [Village 1], in his home Swat District and in the wider KP Province. The Tribunal has come to this conclusion for the following reasons:
·The applicant’s long standing engagement as a political activist within the ANP (the primary secular and anti TTP party for Pashtuns in KP Province), his continuing involvement within local VDC’s when he has returned from overseas and the known presence of his well-established family in local civic and political activities in his home town and wider district.
·The theoretical explanation of the TTP in KP Province post December 2022 as set out in the CTC Sentinel.
·The large amount of CI that addresses the now resurgent TTP and its activities in the KP Province.
·The data as set out in the tables and conclusions reached above as to the significance of that data as to the resurgent and continuing activity of the TTP in almost the entire KP Province. The Tribunal is satisfied that there is not anywhere in the KP Province where the applicant could establish a safe environment for himself and his family now or in the reasonably foreseeable future.
The Tribunal is of the view the Taliban capture of Afghanistan has major implications for the future role of the TTP in the KP Province of Pakistan. This is because as outlined[138] above the because the Pashtun peoples of the two countries of Afghanistan and Pakistan are the same people separated by a line on a map originally drawn by the British arising out of 19^th century Afghanistan wars.
[138] See paragraphs 26, 33 and 34 above for in passing discussions of Pashtuns that address the ethnic origins and current identities of the Pashtun people in KP Province of Pakistan.
The Tribunal accepts the new organisational structure of the TTP in Pakistan has led to an increase in sectarian violence in KP Province. The Tribunal has no reason to suggest this violence will decrease in the reasonably foreseeable future. In these circumstances the applicant and his family face a real chance of persecution.
The Tribunal is of the view the applicant faces a real chance of persecution should he return to his home village of Tangu, the Swat District the Swat Valley, any part of KP Province or any other part of Pakistan inclusive of Karachi.
Conclusion
The Tribunal has considered the applicant’s claims and is satisfied that, considered singly, and in aggregate, the reasons advanced by the applicant are sufficient to attract a real chance of serious harm amounting to persecution in Lebanon. After considering all the available evidence, the Tribunal is satisfied the applicant cumulatively does faces a real chance of serious harm on return to Pakistan now or in the reasonably foreseeable future.
In order to have a well-founded fear of persecution, the real chance of persecution must also relate to all areas of the receiving country, as per section 5J(1)(c) of the Act. The Tribunal is satisfied the applicant does not have the capacity to stay in his home village, the Swat District or the wider KP Province without violent contact from the Taliban. Having assessed the applicant’s claims separately and cumulatively the Tribunal is satisfied that there is a real chance of persecution for one or more of the reasons mentioned in s5J(1)(a) of the Act in the receiving country.
The Tribunal is satisfied the applicant would be subjected to serious harm for reason of her membership of a particular social group as defined these being reasons that meet the provisions of s 5J(1)(a) of the Act if he is removed to Pakistan now or in the reasonably foreseeable future.
Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act and that the applicant meets the definition of refugee as set out is s 5H of the Act.
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Mark Bishop
Senior 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.
…

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, TRT World, 14 August 2022, 20220822134035; 'Swat between conflict and peace', Usman Torwali,
Pakistan Today, 16 August 2022, 20221201101427; Khaliq, F. "Connecting the dots: What really went
down in Swat", Dawn, 24 October 2022
30 SATP, "Swat (Khyber Pakhtunkhwa): Timeline (Terrorist Activities) -2022", August

3 '‘Cops Taken Hostage, Target Killings, Extortion’: Taliban is Back in Pak's Swat Valley
hyberpakhtunkhwa-swat-Aug-2022

'The Pakistani Taliban’s Re emergence in Swat', Akbar Notezai, Jamestown Foundation,

February 2023, 20230417101409; "Taliban has successfully returned to Khyber Pakhtunkhwa's Swat
Valley: Report", ANI, 8 May 2023, -swat-valley-report2/

[74] 'Killings, Abductions Fuel Fear of Taliban Return in North-West Pakistan'

Yousaf, SAGE Open Publications, January-March 2019, 20220627112024

Yousaf, SAGE Open Publications, January-March 2019, 20220627112024; and 'Pakistan's Pashtuns Rattle
Government Even as Media Censorship Takes a Dangerous Turn', Xari Jalil, The Wire, 24 April 2018,
20220125134758, 'Pakistan police killing of a Pashtun youth fuels anger over 'encounters'', Syed Raza Hassan,
Reuters, 26 January 2018, 20220125141521; and 'Racial profiling: Constructing the ‘violent Pashtun’ in our
collective imagination', Balach Khan, The Correspondent PK, 12 May 2021, 20220125115121; and 'DFAT
Country Report: Pakistan', Department of Foreign Affairs and Trade, 24 January 2022, p. 17, 20220125094359

Conflict (ICNC), September 2021, 20230220083054

Conflict (ICNC), September 2021, pp. 2-4, 20230220083054

Alexander, VOA News, 06 March 2017,

Alexander, VOA News, 06 March 2017; 'Pakistan’s Pashtun Profiling', Farooq
Yousaf, Diplomat, The, 28 February 2017; 'Why Pakistan associates terrorism with

Pashtuns and Afghans', Shamil Shams, DW Akademie, 22 March 2017,

Siddique Israr Alam Mohmand, Gandhara (Czech Republic), 14 October 2021,

[118] Statement of [the applicant]dated 29 July 2021, Tribunal File 1815050, Doc ID: 8658283, p.7

[2023] AATA 4163

3 August 2023

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