1825780 (Refugee)

[2023] AATA 2470

1825780 (Refugee) [2023] AATA 2470 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Kathleen Coffey

CASE NUMBER:  1825780

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Scott Clarey

DATE:19 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 19 June 2023 at 2:14pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Pakistani Taliban – particular social group – Kurram Levy Force member – religion – Shia – land dispute – fear of revenge killing – threat letter from the Taliban – mental health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. According to Departmental records, the applicant ([named]) who is a citizen of Pakistan, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, [the applicant] is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

3. [The applicant] was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 23 May 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20), s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

4. As noted above, [the applicant] applied for a Temporary Protection visa on 17 August 2016 (‘the first visa application’). A delegate of the Minister decided to refuse to grant this visa on 8 August 2017 (the decision that is the subject of this review).

5. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.

6. Following this, [the applicant] purported to make a second application for a Safe Haven Enterprise visa on 12 October 2020 (the second visa application, Tribunal case number 2206283). However, [the applicant’s] first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for [the applicant] because he was not within the class of persons specified in the then Minister’s s 48B determination.

7. The first visa application for a Temporary Protection visa on 17 August 2016 was refused by the delegate on 8 August 2017. The delegate in their Decision Record stated ‘While I am satisfied the applicant has a real chance of persecution due to his membership of a particular social group in Kurram Agency, country information does not support the assessment that former Levies are targeted throughout Pakistan as whole’. The delegate refused to grant the visa on the basis that [the applicant] could relocate to another area of Pakistan where the threat of serious harm he faced would be diminished below a real chance.  

8. The second visa application was refused by a delegate on 20 April 2022. An application for review of that decision was made on 28 April 2022. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

9. [The applicant] appeared before the Tribunal on 16 June 2023 to give evidence and present arguments in relation to the first visa application. 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.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CLAIMS AND EVIDENCE

    Evidence before the Department

11. [The applicant] submitted the following statement (signed and dated 1 August 2016) alongside his protection visa application:

    1.    I make this Statutory Declaration in support of my Application for a Temporary Protection Visa (TPV) with the Department of Immigration and Border Protection.

    2.    My lawyer is helping me to make this Declaration.

    3.    I am a Pakistan citizen and I was born in [Village 1], [Town 1], Kurram Agency, FATA on [date].

    4.    I am an ethnic Pashtun and a Sunni Muslim.

    5.    I am from the Bangash tribe.

    6.    In support of my identity I have attached the following documents:

    I.Copy of Pakistan Passport [number];

    II.Certified copy of Pakistani NIC [number];

    III.Colour copy of NIC;

    IV.Certified copy of Kurram Domicile Certificate;

    V.Copy of [College 1] Student ID card;

    VI.Certified copy of Detailed Marks Certificate, [University 1] issued [specified year];

    VII.Certified copy of Detailed Marks [Course 1] issued by the [Authority 1], [date];

    VIII.Certified copy of [College 1] Kurram Agency, Provisional Certificate, [dated];

    IX.Certified copy of Detailed Marks [Course 1] issued by the [Authority 1], [date];

    X.Certified copy of Detailed Marks [Course 2] issued by [Authority 1], [date];

    XI.Copy of [Qualification], [Authority 1], issued [date];

    XII.Certified copy of [School 1] Character Certificate;

    XIII.Certified copy of [School 1] Character Provisional Certificate issued [date];

    XIV.Copy of Character Certificate issued [date] by the Ministry of Foreign Affairs - obtained by my brother;

    XV.Copy Character document that was obtained in order to have document xiv. Issued.

    7.    I cannot provide my original Pakistani passport and original NIC because I lost these at sea when the boat I was travelling on to Australia capsized.

    8.    In support of my claims I attach:

    I.Copy of Service Identity Card, Kurram Levy Force issued [date];

    II.Copy Order, Office of the Political Agent, Kurram Agency at Parachinar regarding my application to join the Kurram Levy Force dated [in] December 2011;

    III.Copy of Kurram Levy Force records including application, character records, health records and appointment letter - various dates;

    IV.Copy letter from the Taliban.

    9.    I am from the Bangash tribe. The Bangash are divided into the Shia caste and the Sunni caste. The Shia caste is the majority in Kurram Agency.

    10.  Both Shia and Sunni have a lot of land. My family also owned land. We had land to farm and a big house where we lived.

    11.  Shia and Sunni Bangash have conflicts over land. We do not fight so much over religion but about land boundaries because they are the majority and want to dispossess us of our land.

    12.  In 2007 the conflict started in our area and throughout 2008 it escalated. Shia in our area destroyed over 3000 homes. The governn1ent helped us to rebuild when the fighting settled.

    13.  Bangash are peaceful, wealthy and highly educated people. This is the main problem that we face from groups such as the Taliban.

    14.  From about 2006 - 2007 the Taliban started coming into our area. They wanted access to Afghanistan and our area offered the easiest way for them. We put up resistance and for this reason we were attacked. The Taliban also knew we were landed and wealthy and could target our people for kidnapping, ransom and harm to get money for their jihad.

    15.  As they started gaining control over our area they were controlling all parts of our lives. They became the local government. During this time there was 3 months fighting in our own village. My family was targeted many times.

    16.  We were fighting the Taliban because we were against them. But then the government began its operations against the Taliban in our area, and many people had to flee their homes.

    17.  In 2008 I left my area for 3 months to continue my studies because of the fighting in our area. I went to Islamabad for 3 months but because my brothers were also away and my family needed one of us at home I went back.

    18.  At the time of my entry interview my older brother [named] was missing. He had been kidnapped by the Taliban while working for his NGO "[named]" in Kurram Agency. But after I had been in Australia for a few months I found out he was released when my father paid a ransom.

    19.  Our area still has a lot of conflict. We are not safe. We are at risk from the Taliban who want to control our area. We are at risk from the Pakistan government who often accuse us of supporting the Taliban. We are at risk from Shia Muslims who attack us and try to dispossess our lands.

    20.  For this reason my mother did not want me to joining the police - the local Kurram Levy Force.

    21.  But I decided to join the Levy Force for several reasons.

    22.  Firstly I did not feel safe myself given all the conflict in my area. Secondly, I wanted to protect my family. Thirdly I thought that the Levy force could also help me with my studies. Lastly I could not trust anyone else to protect us. The Pakistan authorities created the Taliban and we did not know who to trust in the government. Members of the army or ISi also supported the Taliban and we knew that we needed to protect ourselves.

    23.  In the Kurram Levy Force there were also Shia people. I had no problems with this because our aim was the same - to protect our area and fight the Taliban. I applied to the Levy Force [in] December 2011 and was approved. That was the day they were recruiting new members and I went to [Town 2] and told them I wanted to help. I was also studying at this time - I wanted to become an [occupation 1].

    24.  After I was accepted I had to complete character and health checks and once these were done I was able to start work in February 2012.

    25.  As part of the Levy Force I was like a police officer. I was first posted to [Town 2] and then I was transferred to my own village. After that I was transferred to [Town 3]. This was close to [a named town], in [Village 2], Afghanistan. You could see [Village 2’s] lights from our village - it is very close. My main job was to patrol and protect the mountainous border area with Afghanistan at [Town 4]. I did this every day in shifts of about 3 - 4 hours at a time in a group with other people. My duty leaders were [names]. I was posted here for about 1 - 2 months.

    26.  While I was working at the police check post I kept up my studies. I could not attend university in early 2012 because the army had taken it over. I used the time to study privately.

    27.  One night in October 2012 while I was patrolling the border area I heard voices. It was night time and I couldn't see clearly but I could hear talking in Pashto. I asked who was there to try and identify the people but when I first yelled out I did not get a response. They second time I asked I was told "we are your own people". I said "if you are our people who are you, what are your names?" They said, "you will find out shortly."

    28.  I was afraid that these were Taliban. These Taliban fighters lived in the mountain areas after they were pushed back by the Pakistan government but they still carried out attacks in Afghanistan by crossing our border area.

    29.  I had seen them kill police and innocent people in our area.

    30.  I was armed and had a torch and shone my torch in the direction of their voices and as soon as I had lit them up they stated firing at me. As part of our rules we were not allowed to fire unless we were being fired upon first, and as soon as they shot at me I fired back. My other friends heard the shots and started firing as well and for a few minutes there was firing from both sides.

    31.  At some point the Taliban retreated and we returned to patrolling the area.

    32.  This incident happened in October 2012 but I cannot remember the exact date - to the best of my memory I say it was between [dates in] October 2012.

    33.  My friends and I were scared of reporting this incident because we did not know who to trust. If I had reported that I had fired at the Taliban I was afraid that this information would be passed on to the Taliban and it was me on duty and they could identify me easily. There are many informants for the Taliban even among the authorities. I spoke to a fellow Levy Officer [named] and we decided that we would remain silent about this incident. He was afraid that if the Taliban found out it was me who had fired at them they would kill me.

    34.  I continued working for about 5 - 6 nights and then my brother [named] came to where I was posted and he was very scared. He told me that our mother was sick and he asked my senior if he could give me a night off. My senior agreed and we returned to our village together.

    35.  At my village I found my mother was sick- she had suffered from diabetes but she was more afraid because of what had happened to me. In the days after the fighting incident my family had received a threatening letter from the Taliban. A driver from the village named [name], who used to drive from [another town] to [Town 2], was given a letter to deliver it to my house.

    36.  I have attached the letter to my application and it is a genuine document.

    37.  I believe that even though we did not officially report the incident the Taliban and through its informants could easily have asked who was on patrol that night and could easily get access to the names. My name could have been given by someone who was with me in the Levy forces and approached to protect his own life.

    38.  The Taliban target police officers and Levy officers and they had identified me. The letter said that I had delayed their aims and projects and because of me one of their fighters was martyred. I do not know if anyone was killed or not in the fighting that night. They told me I had to present to their centre near [a nearby town] and the judge after hearing from me was to decide what would happen to me. The letter warned that if I did not present myself they would take me from my village.

    39.  I was afraid for my life after this letter and my family and I made the decision that I would flee Pakistan.

    40.  I went to Rawalpindi and met with someone in Islamabad and he helped me make arrangements to leave. I arrived in Australia [in] April 2013.

    41.  If I am returned to Pakistan I fear I will be killed by the Taliban. They are still there and still in power. They knew I was a police officer for the Kurram Levy Force and they threatened me and accused me of killing one of their fighters. They target police officers and people who work for the government.

    42.  The Pakistani authorities are unable to protect me because the authorities cannot protect me from the Taliban or extremists. It is also difficult for me to trust the government authorities because so many senior government officials are connected with the Taliban and other terrorist groups.

    43.  There is no place that is safe for me in Pakistan because the Taliban have wide networks and informants throughout the country and can find me no matter where I go in the country. Even though I lived in Islamabad and Peshawar this was before my problems started. I was a student at the time. The Taliban now see me as an enemy and I cannot live safely anywhere in Pakistan.

    44.  My mother passed away in 2015 and I could not go and see her before she died. lfl was not afraid for my life I would have gone back without hesitation. Being there when a parent is dying is very important in my culture. My mother was very close to me and attached to me and I believe she died at the young age of [age] including because of her worry for me and me having to leave the family.

    45.  These are the fears I have if I return to Pakistan and why I ask that the Australian government grant me protection.

12. I note that prior to the hearing on 16 June 2023, the applicant, through his representative, submitted another statutory declaration (dated 15 June 2023):

    1.    I make the following statement in support of my applications to the Administrative Appeal Tribunal (Migration and Refugee Division) with respect to decisions of the Department of Home Affairs to refuse to grant me a protection visa.

    2.    The following statement aims to provide a summary of my current circumstances. I request it be read in conjunction with my previous statement of claims and my evidence provided to the Department. I will provide further information in support of my claims at my forthcoming Hearing with the Tribunal.

    3.    In 2020, I was diagnosed with [medical condition 1]. I underwent [specified treatment]. I am required to attend on going appointments at the [Health Service 1] every six months for at least the next two years.

    4.    I was diagnosed with depression in 2015. The uncertainty of my immigration process has further affected my mental health. I fear harm upon return to Pakistan, this has also affected my mental health. While undergoing [medical] treatment I attended appointments with a psychologist and psychiatrist at [Health Service 1].

    5.    [Psychiatrist A] is my current Psychiatrist. I attend appointments with him at the [named] Hospital. I am also under the care of [Psychologist A], psychologist at the [Health Service 2]. I was referred to [Psychiatrist A] and [Psychologist A] by my General Practitioner is [named].

    6.    On 3 June 2022, I was involved in a serious car accident. Due to this, I have been diagnosed with [medical conditions]. I also ruptured tendons in my right elbow. I have required ongoing medical assistance including with allied health professionals. This incident further impacted my mental health.

    7.    Given my ongoing health issues, I find it very difficult to remember information including dates. I also become very stressed and anxious. I am currently taking medication for anxiety and depression. I request this be considered by the Tribunal in the assessment of my matter.

    8.    Throughout my immigration process in Australia, I have had Pashtu interpreters with differing dialects. At times, this has made it difficult for me to communicate. For this reason, I did not use an interpreter for my most recent protection visa interview. At times, I found it difficult to understand the questions. I believe I should have used an interpreter, as after receiving the decision, I believe parts of my evidence may not have been properly understood.

    9.    I have never been married. I have no children. My mother passed away in 2015. My father passed away in 2020. My [remaining family members] live in Pakistan. They have advised me that the extremist presence in Pakistan has greatly increased, and they continue to live in fear of being killed by extremists.

    Comments on the delegate’s decision

    10.  I confirm that I was involved with the Kurram Levy Force (KLF) from 2011 until 2012. While serving with the KLF, I was involved in an altercation that resulted in a militant being killed. Given I fired first, I was considered the aggressor.

    11.  The extremists believe revenge is important and want to kill me to revenge the death of their person that was killed. This places me at a high risk of harm upon return to Pakistan. Once I received the threat letter, I knew for sure that the extremists blamed me and that I would be killed. As such, I had to flee Pakistan.

    12.  The delegate failed to understand that while living in Pakistan, I did not trust anyone. The extremist groups often infiltrate the Authorities, especially in the Tribal area. It is difficult to know who to ask for assistance when required, as you do not want to cause more issues for yourself.

    13.  I did receive a threat letter from the extremists. The delegate found that this was not consistent with the established practices of the Taliban. I disagree, the Taliban often operate in different ways including by using threat letters. I am fearful that I will be killed as retribution for this incident by the Taliban.

    14.  I reiterate that my brother was injured in July 2017. The documents I provided are genuine documents. I genuinely believe that my brother was targeted due to my involvement in the incident with the extremists. I worry about my family very much. They live a very reclusive life and live in fear of harm.

    15.  Since the Taliban have come to power in Afghanistan, the powerbase of the Taliban and affiliate extremist groups has continued to grow throughout Pakistan including in my home area, which is close to the Afghan Border. The extremist groups have the power to harm and kill those who do not support their ideology. I strongly oppose the ideology of the Taliban and have been identified as an opponent. I fear I will be killed for this reason.

    Why I fear harm on return to Pakistan

    16.  I continue to fear returning to Pakistan due to imputed political opinion. I am considered as an opponent to the extremist groups, given my involvement with the Kurram Levy Force and the issues I faced prior to my departure given my involvement in an altercation which resulted in the death of a militant.

    17.  I have now lived outside Pakistan for over ten years. If I was to return, I would be considered opposed to the Taliban given the long period of time I have lived in a Western country. The Taliban are opposed to Western ideology and culture. Given I have lived in the West for a long time, I would be considered an affiliate of the West.

    18.  I am concerned that if I returned to Pakistan, I would not receive adequate health treatment for my mental and physical health. I would be vulnerable to being exploited and harmed given my health would deteriorate and I would struggle to cope. I also fear I will be discriminated against given my mental health. There is a poor understanding of mental health in Pakistan and therefore people with mental health struggles are stigmatised rather than assisted.

    Relocation

    19.  Extremist groups have strong networks throughout Pakistan, and I would be at risk of harm no matter where I resided. I would be treated with suspicion by the Pakistani Authorities in another area of Pakistan, given I am a Sunni Pashtun male from the Kurram.

    20.  My health is very fragile. I have no support network in another part of the country. I have extremely limited work experience in Pakistan. I also do not believe I would not be able to obtain medical support. Without relevant support, I would be further at risk of harm if forced to relocate.

    State Protection

    21.  The Pakistani Authorities cannot protect me. They often work alongside extremist groups. They are corrupt and unable to uphold the rule of law and prevent extremists from committing attacks and killings. They are more influenced by extremists now than ever before.

1. I note that the delegate, in their Decision Record, was satisfied that [the applicant] would face a real chance of serious harm amounting to persecution if he returned to Pakistan in the foreseeable future due to his membership of a particular social group in his home area of Pakistan but refused the application on the ground that this did not extend to all areas of the country. The delegate found that [the applicant] could relocate to another area of Pakistan where the threat of serious harm he faced would be diminished below a real chance. I note the following excerpts from the delegate’s Decision Record:

   ·I am satisfied the applicant joined the Kurram Agency Levy Force (the Levies), the FATA agency equivalent of the police, as [an officer 1] in December 2011. At his protection visa interview the applicant provided credible, reasonably detailed information regarding his reasons for joining; the process he undertook to join; his training; and his deployments. The applicant also provided copies of documents to support this claim. There is no information before me to support an assessment that these documents are bogus.

   ·I am satisfied that the applicant was stationed in at least three locations in Lower Kurram during the approximately 11 months he was in the Levies. I am satisfied that his duties included general local policing duties, including traffic control. At his PV interview, the applicant provided credible information about his roles and the posts in which he was stationed.

   ·Country information indicates that Kurram's frontier with Afghanistan is primarily policed by the Frontier Corps (FC), not the Levies. Nevertheless, information before the department indicates that in parts of the FAT A, border policing is occasionally one of the duties performed by Levies. At interview, the applicant stated that he was posted near [Town 3]. Country information indicates that [Town 3] is adjacent to [Town 4] in Lower Kurram, across the Kurram River from [location]. It is not a frontier border post. Rather, there is a [location] near the intersection of major roads, one of which runs to the border with [Village 2], Afghanistan, approximately [distance] from [Town 4]. Nevertheless, I am satisfied that persons entering Lower Kurram from [Village 2] would invariably travel past [Town 3]/[Town 4] and therefore it is plausible that the applicant's duties included monitoring people and vehicles travelling from the frontier with [Village 2].

   ·It is plausible the applicant became engaged in a firefight with unknown persons in his capacity as a Levy at [Town 3]. Country information indicates that it is not uncommon for Levies to engage in such exchanges of fire with militants in Kurram Agency. Further, the applicant's description of how the firefight ensued is similarly plausible. On the basis that I accept that the applicant was [an officer 1] in the Kurram Levy Force and that Lower Kurram had a significant militant presence in 2012, I accept for the purposes of this assessment that such an exchange took place.

   ·Nevertheless, for the purposes of this assessment I accept that it is plausible that the applicant may have injured or killed a person in the exchange of fire at the [Town 3] post, and family or colleagues of the injured/deceased learned of the applicant's involvement. This raises the possibility that a local Taliban faction is also aware that the applicant was [an officer 1] in the Levies and was involved in the exchange of gunfire. Further, I note that a Levy was killed by militants in [Town 2], near the applicant's home village, in August 2012, close to the time of the claimed exchange of fire between unknown persons and the applicant and his fellow officers.11 On this basis, I am satisfied that the applicant had reason to believe that he might be targeted by militants, prompting him to depart Lower Kurram.

   ·…

   ·I am satisfied that Kurram Levy Force officers (Levies), Khassadars (tribal police), and Frontier Corps (FC) militia members constitute a particular social group (PSG) in Pakistan, as defined in section 5L of the Migration Act 1958. Further, country information supports the assessment that members of this PSG face a real chance of serious harm in Kurram Agency and other agencies in the Federally Administered Tribal Areas (FATA), adjacent regions of Khyber Pakhtunkhwa (KPK), and Balochistan.

   ·…

   ·While I am satisfied the applicant has a real chance of persecution due his membership of a particular social group in Kurram Agency, country information does not support the assessment that former Levies are targeted throughout Pakistan as whole.

   Tribunal hearing on 16 June 2023

2. At the Tribunal hearing on 16 June 2023, I discussed with [the applicant] various aspects of his claims and specific details of the issues he claimed to have faced in Pakistan. I note that [the applicant] gave oral evidence that was consistent with his previous accounts of these claims and issues, and also the written submissions that have been made by him and on his behalf over several years.

3. [The applicant] confirmed that he was an ethnic Pashtun, a member of the Bangash tribe and Sunni Muslim man. He told the Tribunal that he was from Kurram District, in the Kohat Division of the KPK province in Pakistan. [The applicant] spoke of the rampant militant activity in his home area, that included a large group of organised militants, among them the Tehrik-e Taliban Pakistan (TTP) and the Afghan Taliban. [The applicant] stated that the militant activity is currently much more prolific than it was previously when he had lived in Pakistan, given various domestic and international political events, not least of which the collapse of the central Pakistan government last year, and the resurgence of the Afghan Taliban across the border since it regained power in Afghanistan in August 2021. He stated words to the effect that the Afghan-Pakistan border, which has always been permeable, is now even more porous than it was.

4. [The applicant] confirmed that he was previously in the Kurram Levy Force (KLF) in his home area, and gave oral evidence about the activities of the KLF and about where he had been stationed on duty that was highly consistent with previous accounts. He confirmed the incident in 2012 where he had been involved in a firefight with Taliban militants, during which some of those militants had been killed. I asked [the applicant] what it was he feared in the future if he were to return to his home area of Pakistan. [The applicant] stated words to the effect that he feared reprisals from various militant groups, who not only still existed in Pakistan but were now much more powerful than they had been, including because of his previous role as a police officer who was in active and open combat with these militants. [The applicant] stated that he had a very high profile because of his past employment with the KLF and associated activities, and that he was on a target list of the militants. He said words to the effect that these sorts of groups have long memories and are known to carry out reprisals long after the fact. [The applicant] fears being targeted and killed by militants including the Taliban, who are now much more powerful and pervasive than they have been in the past, if he were to return to Pakistan in the foreseeable future.

   THE RELEVANT LAW

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Country information

    Background on the Taliban in KPK province

11. Country information indicates that the Taliban in KPK province emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989.[1] Maulana Fazlullah assumed control of the TNSM in 2001[2] and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands.[3] When Tehreek-e-Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007, Fazlullah was named emir (leader) of the Swat Taliban. Although the TTP and TNSM were not operationally linked, they were allied, and TNSM militants in Swat were also referred to as the Swat Taliban.  Fazlullah subsequently became leader of the TTP in 2013 until he was killed in a US drone strike in eastern Afghanistan in June 2018.[4]

    [1] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289–313. See especially pages 291–294

    [2] Ibid

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

    [4] ‘Pakistan Taliban leader Mullah Fazlullah killed in U.S. airstrike in Afghanistan’, The Washington Post, 15 June 2018, <>

    TNSM attacked targets in the KPK province which it deemed to be un‑Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, and artists[5] and used beheadings to advertise its strength.[6] The KPK provincial government entered into a number of ceasefire agreements with the TNSM from 1994,[7] however, these did not lead to a lasting peace and the TNSM gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence[8] and displacement of the local population.[9] Fazlullah effectively set up a parallel government in Swat in 2007, controlling the area until 2009 when he and his group were defeated by an army offensive.[10] The army offensive against the Taliban in Swat commenced in May 2009. During that time, the military is reported to have sent 15,000 troops into Swat to confront about 4,000 Taliban militants. Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people in the month after the offensive commenced.[11]

    [5] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28

    [6] Mustafa D and Brown K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; ‘Taliban behead two government officials in Swat’ 2009, Dawn, 3 May

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

    [8] Ibid

    [9] Ibid, pp.289–313, especially page 302 for reference to a, so-called, ‘Taliban Police Station’

    [10] Siddique, Q. 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November, pp. 39–43 < Kronstadt, K.A. 2010, ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June, p.19

    [11] Macey, J. 2009, ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June >

    Independent information before the Tribunal indicates that, following the defeat of Taliban militants in Swat by the Pakistan armed forces in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military in Swat continued.[12] A May 2014 report by the Voice of America on Pakistan military operations targeting Taliban strongholds in the neighbouring Buner district noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014 were a ‘clear indication of militant presence in the region’.[13] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[14] who stated that the Taliban in the KPK province were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region. Cloughley characterised the Taliban in Swat as being ‘down but … not out’.[15] The Taliban’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House (in 2013) that the Taliban have become active in KPK province again.[16]

    [12] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat’, New York Times, 26 July 2014, available at Jan, S, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May 2014, < >

    [14] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Cloughley, B, ‘It’s Time to Strike’, The News International, 19 May 2014, < ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’, Pakistan Today, 17 September 2013, <>

    The Pakistan Institute for Conflict and Security Studies Annual Security Assessment Report for 2015 comments that the security situation in KPK province improved substantially during 2015 with an almost 70 per cent reduction in militant attacks compared with 2014, returning to the status of 2007/08 when this wave of militancy picked up momentum. The report comments that the substantial improvement is directly linked to military operations in FATA as well as measures adopted under the National Action Plan (to counter terrorism) (NAP). The report notes, however, that incidents of target killings continued to occur in KPK province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015.[17]

    [17] Annual Security Assessment Report 2015, Pakistan Institute for Conflict and Security Studies pages 26-29

12. A July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence had been reported in Swat since the completion of the military operation in 2009 and that the prime targets included members of the Village Peace Committees (VPCs). The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that ‘the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces’.[18]

    [18] ‘Restoring Swat’s lights’, The Friday Times, 29 July 2016, <>

    A Center for Research and Security Studies report for the period April to June 2016 stated that police officials appear to be the main target of violence in KPK province, followed by political activists belonging to the Awami National Party and pro‑government VPC members. It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[19]

    [19] Security Report: April - June 2016, Center for Research and Security Studies, 28 July 2016, CIS38A80121410, p.18

13. In its 2019 DFAT Country Information Report states that Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, including the TTP. The report comments that while militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. The KPK province is mentioned as having recorded the highest number of terrorist attacks (125 attacks killing 196 people).[20]

    [20] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.69

1. The 2019 DFAT Country Information Report on Pakistan indicates that:

   ·The security 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. According to the South Asian Terrorism Portal (SATP), 3,684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.[21]

   ·Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti-Shia sectarian groups). While ISIL was responsible for attacks with the largest death tolls, the TTP and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti‑Pakistan Sunni groups and Anti-Shia sectarian groups).[22]

   ·The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.

   ·Although counter-terrorism operations have succeeded in suppressing terrorism‑related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller‑scale attacks (albeit at a reduced tempo).

   [21] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.68

   [22] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.71

2. I note the following relevant information regarding the increased militant activity and rise in violent attacks, including in the KPK province, drawn from the updated DFAT Country Information Report published on 26 January 2022:[23]

   Following improvement over recent years, the security situation in Pakistan has deteriorated since mid‑2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, genderbased issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

   Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. See also Armed groups.

   Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.

   While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).

   Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.

   A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.

   TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.

   Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan. See also Race/Nationality and Religion.

   [23] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.34–2.41

3. I note the following relevant information from a Brookings Institute report[24] regarding the resurgence of the TTP and related instances of politically motivated violence in Pakistan:

   Alongside the Taliban’s takeover of neighboring Afghanistan, 2021 in Pakistan was marked by a clear resurgence of Tehrik-e-Taliban Pakistan (TTP), a terrorist group closely affiliated with the Afghan Taliban and responsible for killing tens of thousands of Pakistanis between 2007 and 2015. The Afghan Taliban’s rise to power — considered a “strategic win” for Pakistan and publicly welcomed by several politicians and officials — provided an unmistakable boost to the TTP. As the TTP has resurged, the Pakistani state has shifted its narratives and policies toward the group, while details on the TTP’s attacks have remained frustratingly opaque.

   According to the Pakistan Institute for Peace Studies (PIPS), 207 terrorist attacks took place in Pakistan in 2021 — an increase of 42% relative to 2020. 335 lives were lost in these attacks. PIPS notes that the TTP alone was responsible for 87 attacks, an increase of 84% relative to 2020. The TTP itself claimed 282 attacks in 2021 and said that it had killed more than 500 law enforcement personnel; it claimed an additional 42 attacks in January 2022.

   Both sets of numbers are low relative to the number of terrorist attacks during the height of the TTP insurgency (2,586 terrorist attacks and 3,021 fatalities in 2009, according to PIPS data). After the Pakistani military began its Zarb-e-Azb operation against the group in 2014, attacks declined sharply. Yet the increasing violence in 2021 compared to 2020, when the TTP began to regroup, is clear.

   [24] Madiha Afzal, ‘Pakistan’s ambivalent approach toward a resurgent Tehrik-e-Taliban Pakistan’, Brookings Institute, 11 February 2022. Accessed at: >

   I also note recent developments in Pakistan, including the highly volatile and fluid political situation that resulted in the ousting of Pakistan’s Prime Minister on 10 April 2022.[25] I note also that human rights groups, including Human Rights Watch, have voiced concerns that the political instability currently being experienced in Pakistan could result in increased violence and unrest throughout the country, and noted several explicit threats of violence voiced by politicians.[26] I note also country information that highlights a surge in political violence including religiously motivated terrorism in recent weeks. For example, a suicide attack took place on 7 March 2022 at a cultural festival in Sibi, Balochistan, killing several members of a local police force, and a bomb was detonated at a Shia mosque in Peshawar on 4 March 2022. Country information suggests that this violence is evidence of a resurgence of militancy across the country that is seeking to take advantage of the political instability and leadership vacuum related to the recent political crisis.[27]

   [25] BBC NEWS, ‘Imran Khan ousted as Pakistan’s PM after vote’, 11 April 2022. Available at: Patricia Gossman, ‘Pakistan’s No-Confidence Vote Should Respect Democratic Process’, Human rights Watch, 16 March 2022. Accessed at: The Associated Press, ‘Pakistan says 4 troops killed in attack claimed by Taliban’, 25 March 2022. Accessed at: >

   I note the following report from the Australian Institute of International Affairs[28] regarding the resurgence of the TTP and related instances of politically motivated violence in Pakistan, including specifically in [the applicant’s] home area in KPK province:

   Since the Taliban took over in Afghanistan in August 2021, TTP attacks have increased by 84 percent. This is principally because the TTP, which is ideologically, tribally, and operationally closely affiliated with the Taliban, has rear bases in Afghanistan from where it has been able to launch attacks back into Pakistan. Even though the Taliban has condemned the attack, no one is fooled by those words. Since the Taliban took over, Pakistan has been demanding that the Taliban shut down the TTP camps in Afghanistan with its estimated 6000 fighters. The Taliban has refused to oblige, and it is unlikely that they will do so in the near future. This confirms that Pakistan’s support for the return of the Taliban in Kabul was always a bad idea.

   …

   In an attempt to halt the TTP attacks, the previous government of Imran Khan entered into negotiations with the TTP in October 2021. These were facilitated by the Taliban and a ceasefire was implemented. However, these negotiations made no progress and ended in November 2022, when the TTP called off the ceasefire. While there were no terrorist attacks during the talks, the time wasted in negotiations gave the TPP an invaluable opportunity to regroup in different parts of the country. For example, a day after the Peshawar attack, a police station in Mianwali, Punjab, came under a gun attack by heavily armed TTP fighters. While the attack was repulsed, it illustrates the extent of the TTP’s present reach along areas of the Afghan-Pakistan border. To date, all negotiations with local terrorist groups have failed. With terrorists like the TPP becoming more emboldened, and the attacks larger and more sophisticated, the call for a military solution has become louder. However, given the nature of counter-terrorism and the difficult terrain the TTP operates in, it’s unlikely that the current prime minister, Shehbaz Sharif, will be able to show any real progress on this front, at least over the next six months. Accordingly, there’s a very good chance that Imran Khan will have further increased his popularity with this latest terrorist act. His party, the Pakistan Tehreek-e-Insaf, has won most of the provincial by-elections since being ousted from office in April 2022

   [28] Dr Claude Rakisits, Pakistan, Terror and Politics; ‘The 30 January Peshawar Terrorist Attack’, Australian Institute of International Affairs, 7 February 2023, >

   I note the following Al-Jazeera report[29] regarding recent violent militant attacks in [the applicant’s] hometown of Kurram district:

   Gunmen have stormed a school in Pakistan’s volatile northwest, killing several teachers and gunning down another teacher from the school in a separate attack, according to officials. In Kurram, a district in the northwestern Khyber Pakhtunkhwa province that borders Afghanistan, a group of gunmen on Thursday stormed a government school where students were taking exams. The Associated Press reported that the seven teachers killed were members of Pakistan’s minority Shia community, which is frequently targeted by fighters. Another teacher from the same school, a Sunni Muslim, was gunned down on the road in a separate attack earlier in the day in Kurram, according to local police official Abbas Ali. No one immediately claimed responsibility for the attacks and Ali said it was not clear if they were linked. “We are looking into all aspects, and so far we have no idea who killed the teachers,” he said. The prime minister condemned the attacks on teachers and ordered a probe into the killings. Al Jazeera’s Kamal Hyder, reporting from Islamabad, said the “gruesome incident” took place in an area that has witnessed in the past sectarian violence between Shia and Sunni tribes. “Most of the teachers who were killed belonged to the Turi Shia tribe,” Hyder said. The tribal district contains a majority Shia population who are often attacked by armed groups as part of the local Taliban movement. “This particular attack targeted the teachers while they were in the staffroom … They were there to conduct examinations which are under way throughout the province for lower secondary school,” he said. A statement from the provincial chief minister’s office said the incident involved a property dispute, but the regional commissioner said sectarian antagonism appeared to be the cause. “It is not clear whether the second incident was a reaction to the first one,” the commissioner, Saiful Islam, told Reuters news agency, adding security has been heightened in an area already tense due to sectarian violence.

   [29] Al Jazeera, Several teachers killed in Pakistan school shooting, 4 May 2023,

4. I note the following article from The Diplomat[30] that outlines that the TTP are continuing to increase their prominence in Pakistan, with a 55 per cent increase in attacks since the Taliban took control in Afghanistan:

   [30] ‘The Resurgence of Terrorism in Pakistan’, Abdul Basit, The Diplomat, 23 January 2023, has witnessed a renewed spate of terrorism in recent months, particularly after the Tehreek-e-Taliban Pakistan (TTP) called off its ceasefire and asked its fighters to resume countrywide attacks. Since the Afghan Taliban took control of Afghanistan in August 2021, there has been a 55 percent increase in terrorist attacks in Pakistan. Terrorism’s resurgence has brought into sharp focus the fragility of Pakistan’s counterterrorism gains.

   While Pakistan will have to adopt a more proactive counterterrorism policy, an analysis of factors underlying the resurgence of terrorism is important, as a comprehensive understanding of the problem will pave the way for informed policymaking.

   The foremost among the factors contributing to resurgent terrorism in Pakistan is its myopic Afghan policy of supporting the Taliban, which enabled the group to claw its way back to power. Pakistan backed the Taliban against the U.S.- supported regimes in Kabul, seeking to corner India and rein in the TTP with the former’s help.

   However, the Taliban’s return to power had a rejuvenating effect on the TTP. The group celebrated the Taliban’s victory as its own. The TTP and the Taliban have longstanding battlefield, political, ethnic, and ideological linkages. Hence, instead of offering any help to Pakistan, the Taliban regime termed the TTP as Pakistan’s internal matter. The Taliban only offered to help facilitate negotiations to reach a political settlement, provided both Pakistan and the TTP agreed to resolve their differences.

   Another reason for the resurgence of terrorism is Pakistan’s engagement in talks with the TTP from a position of weakness. This served to give the militant group much-needed time and space to recuperate and spread its network in Pakistan. The first attempt to reach a peace deal was made in 2021, which ended with the TTP scrapping the one-month truce in December and resuming attacks.

   A report by Pakistan’s premier counterterrorism agency, the National Counter Terrorism Authority, has noted that peace talks contributed to the TTP’s rising attacks in Pakistan. If history is anything to go by, that result was predictable: Around six peace deals with the TTP and other local militant factions in the past have failed to achieve peace and contributed to the rise of violent incidents.

   The abeyance of violence due to the weakening of terrorist networks in the 2015- 2020 period and the fencing of the Afghanistan-Pakistan border created a misplaced notion of victory and a false sense of security. Pakistan confused the absence of violence with the restoration of peace without realizing the fragility and reversibility of its counterterrorism gains. Similarly, the fencing of Pakistan’s 2,640-kilometer-long border with Afghanistan was seen as a means to minimize the blow back of insecurity and spillover of violence from Afghanistan after the U.S. withdrawal and the Taliban’s return to power.

   However, as time progressed, it has become evident that the border fencing could not stop the TTP’s cross-border attacks and infiltration from Afghanistan into Pakistan.

   In the context of insurgency and asymmetric warfare, inter-group mergers and alliances are key components to non-state violent actors’ lethality and longevity. The more a militant group is allied, the more lethal and resilient it becomes. Since 2020, the TTP under its new chief Nur Wali Mehsud has paid close attention to reuniting various splinter factions. In the last two years, more than 22 militant factions have merged with the TTP, enhancing its operational strength and expanding its geographical outreach in Pakistan. These mergers and reunifications have also played a key role in the resurgence of militant violence in Pakistan.

   Furthermore, the complacency emanating from an unfounded sense of victory against the TTP and inadequate counterterrorism infrastructure also contributed to the resurgence of militant violence. A report submitted to the parliament in December has highlighted serious capacity issues and law enforcement gaps in Khyber Pakhtunkhwa’s Counter Terrorism Department (CTD). Since the Taliban’s takeover, Khyber Pakhtunkhwa’s police have borne the brunt of the TTP’s attacks, losing more than 120 personnel in 83 assaults. Yet the report pointed out that Khyber Pakhtunkhwa CTD’s manpower is poorly trained, under-resourced, and ill-equipped. For instance, it spends less than 4 percent of its budget on operations, with zero allocations for procurement. Likewise, its budget of $9.48 million or 2.18 billion Pakistani rupees, including salaries and allowances, is half of Punjab CTD’s $2.08 million budget.

   Lately, Pakistan-Taliban relations have deteriorated, resulting in frequent border flare-ups and closures. The Taliban have accused Pakistan of providing its airspace to the United States for the drone strike in Kabul that killed al-Qaida chief Ayman al-Zawahiri. At the same time, Pakistan-U.S. counterterrorism cooperation against the residual threat of transnational militancy in Afghanistan is progressively improving. Recently, the U.S. included the TTP’s deputy head, Qari Amjad, as well as al-Qaida in the Indian Subcontinent chief Osama Mahmood and his deputy Atif Yahya Ghori in its designated list of global terrorists. Going forward, an improvement in Pakistan-U.S. ties will negatively impact the already abysmal Taliban-Pakistan relations, to the detriment of Pakistan’s volatile security situation.

   Pakistan’s contradictions in Afghanistan have come full circle. While Pakistan has been seeking strategic depth in Afghanistan against India, the Taliban-ruled Afghanistan has provided the TTP with reverse strategic depth against Pakistan. Without revisiting Pakistan’s myopic Afghan policy, a new counterterrorism campaign alone will not fix Pakistan’s terrorism dilemma. Furthermore, Pakistan will have to take a long view of the terrorism challenge because terrorism is likely to persist. Irrespective of the Pakistani response, any improvement or deterioration of the terrorism threat in Pakistan will depend on the evolving situation in Afghanistan

1. I note a recent report by the Centre for Research and Security Studies in Pakistan[31] that highlights that extremist fuelled violence has continued to escalate in Pakistan over the last year:

   The country witnessed a rise in violence in 2021. Violence related incidents resulted in the death of 850 persons and caused injuries to 1,685 others. Among the various regions of the country, Baluchistan suffered the highest fatalities followed by the formerly Federally Administered Tribal Areas… Like last year, the two provinces bordering Afghanistan – Balochistan and KP (including former FATA) were the centre of the violence this year with over three quarters of violence reported…… We have segregated the data to showcase how pronounced the problem in former FATA regions is. This region had the highest fatalities from violence in the country

   [31] ‘The Resurgence of Terrorism in Pakistan’, Abdul Basit, The Diplomat, 23 January 2023, and reasons

2. I accept that [the applicant] is a Sunni Muslim man of Pashtun ethnicity from the Bangash tribe who was born and raised in [Village 1], [Town 1], Kurram Agency in the Kohat Division of KPK province in Pakistan. Considering the totality of the evidence provided, including information and documents on the Department’s file, I accept that [the applicant] was targeted by members of the Taliban militant group because he was a member of the local Kurram Levy (police) Force. I accept that [the applicant] has been directly and indirectly threatened by members of the Taliban militant group operating in the KPK province. I accept that [the applicant] was involved in a firefight with Taliban militants in or around October 2012, that involved an exchange of gun fire between [the applicant’s] patrol group and a band of militants in the area. I accept that [the applicant] was known to the Taliban militant leadership in the area as a member of the local Kurram Levy Force.

3. I note that [the applicant’s] various accounts of these incidents related to his claims have been highly consistent over several years. I accept that [the applicant] was threatened by the Taliban militant group as claimed and I also accept that many threats and atrocities occurred during the period when the TTP and affiliated groups effectively acted with impunity in the area, which is supported by country information on Pakistan.

4. Having considered the available country information and [the applicant’s] specific circumstances, particularly (as detailed above) the information relating to the activities of militant groups in his home area and the increasing prevalence of violence, I am satisfied (as was the delegate in their Decision Record) that in these circumstances [the applicant] would face a real chance of serious harm from militants – groups and/or individuals that include the Taliban – if he were to return to his home area for reasons relating to his (actual or imputed) political opinions, namely that of people who hold anti‑Taliban political beliefs and because of his membership of a particular social group, namely members of the local police force who were in direct opposition to, and conflict with, Taliban militants, as required by s 5J(4)(b) of the Act, in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also consider that [the applicant’s] (actual or imputed) political opinions are the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his (actual or imputed) political opinions.

5. Pursuant to s 5J(6), I am satisfied that the reasons [the applicant] faces a well-founded fear of persecution relate to behaviours and/or conduct that was not engaged in by [the applicant] in Australia for the purpose of strengthening his claim to be a refugee.

   Relocation

6. In SZATV v MIAC (2007) 233 CLR 18, the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country if, under all the circumstances, it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.

7. I am satisfied that [the applicant], as a citizen of Pakistan, has the right to relocate within Pakistan. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[32]

   [32] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453]

8. In considering [the applicant’s] circumstances and the ‘reasonableness’ of him relocating within Pakistan, I have considered advice in the DFAT Country Information Report that while many Pashtuns have migrated to urban areas, including Islamabad and Lahore, and community leaders had told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country, DFAT is also aware that members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty in obtaining identification, and that since the commencement of Operation Zarb-e-Azb and the NAP, large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities – due largely to the fact that the TTP’s support base is primarily Pashtun.[33]

   [33] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.3–3.6

9. For these reasons, I do not consider it would be reasonable to expect [the applicant] to relocate himself to another part of Pakistan where he has no family or social supports, to escape the real chance of serious harm he faces in KPK province and elsewhere in the country. I accept that the real chance of serious harm [the applicant] faces if he were to return to Pakistan extends to all areas of the country.

   State protection

10. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit, in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non‑state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

11. In its Country Information Report (as outlined above) DFAT indicates that Pakistan continues to face security threats from militant groups and that KPK province is among the regions experiencing relatively higher rates of militant and sectarian violence, a situation that has significantly deteriorated in recent months. DFAT also comments that the underlying conditions for militancy – particularly weak judicial and law enforcement institutions and economic under-development – have not been addressed, and speculated that violence would likely increase again after a period of relative calm, and noted that there had been an increase in the frequency and severity of terrorist attacks across the country since late 2016, including in Peshawar in KPK province. DFAT comments that despite the measures introduced under the NAP to curb violence across the country, successful prosecutions of those responsible for politically motivated or sectarian violence are rare, due in part to the ineffectiveness of police investigations and the effect of threats against judges, lawyers and witnesses. DFAT also assesses that state protection in Pakistan is limited by resource shortages, personal socio-economic status and, in some cases, political will.[34]

    [34] DFAT Country Information Report, Pakistan, 25 January 2022

12. The information before me indicates that the situation in the KPK province remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban and related militant/extremist groups. There are clear indications that militants are increasingly active in the area and have been emboldened by recent events such as the fall of Afghanistan to the Taliban and political turmoil in Islamabad. Country information also suggests that little is done in response to attacks on residents by militants. Given the longstanding nature and seriousness of the violence in the KPK province, together with information indicating that the authorities in Pakistan are struggling to contain that violence, I find that [the applicant] could not obtain, from an authority of the country, effective state protection against the harm he faces.

    Conclusion on issues related to harm in the future from the Taliban militant group and/or related groups and/or their allies and supporters

13. I find the country information indicates that the Taliban and other militant groups continue to launch attacks against military targets and those they consider to support the Pakistani authorities. They are attacking with increasing frequency and impunity.

14. Considering [the applicant’s] particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from the Taliban and/or their agents and/or affiliated groups, if he returned to his home in the KPK province, Pakistan. I am satisfied that the real chance of serious harm [the applicant] will face if he returned to his home area will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces is his profile as a former member of the police force in his home area who is highly likely to be imputed to hold anti‑Taliban political opinions due to his past history with the group and because of his membership of a particular social group, namely members of the local police force who were in direct opposition to, and conflict with, Taliban militants in his home area in Pakistan.

15. For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Act. Therefore he satisfies the criterion set out in s 36(2)(a).

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

    Scott Clarey
    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.

    …