1826323 (Refugee)

1826323 (Refugee) [2022] AATA 1083 (21 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826323
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Michael Hawkins AM
DATE:21 February 2022
PLACE OF DECISION:  Brisbane
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 21 February 2022 at 4:31pm

CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race – Pashtuns – political opinion – a member of the Awami National Party – political opinion against the Taliban, ISIS and other Islamic extremist organisations – perceived as an anti-Islamic person and western cultured person – failed asylum seekers – effective protection measures are not available to the applicant– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 September 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 27 October 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk that he would suffer significant harm.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background:
The Tribunal has obtained the following background information from the applicant’s protection visa application forms, evidence presented to the delegate and the delegate’s decision:
The applicant is a [age]-year-old Pakistani national. He belongs to the Pashtun Afridi tribe from Peshawar, Pakistan.
The applicant first arrived in Australia [in] October 2016 pursuant to a Class FA, Subclass 600 [visa] and he has remained onshore since.
The applicant applied for a protection visa on 27 October 2016, which was refused by a delegate of the Minister for Home Affairs in a decision made on 5 September 2018.
The applicant had previously applied for a Class FA, Subclass 600 (Visitor) visa on 28 July 2015, but it was refused on 18 August 2015.
On 10 September 2018, the applicant applied for merits review of the delegate’s decision.
Claims:
The applicant’s claims are summarised from his protection visa application, written claims and the delegate’s decision.
The applicant claims he followed his father and uncles in supporting the Awami National Party (ANP), which is considered a secular party as it opposes the strict interpretation of Islam and promotes pluralism.
The applicant claims his father influenced him to engage in political activities with the ANP. He claims he accompanied his father and uncle to support the ANP in its election campaigns and meetings. He claims he could not become a member of the ANP until he turned 16.
The applicant claims that in 2012, he became involved with the Pukhtoon Students Federation (PSF), the student wing of the ANP, at [college] in Peshawar. He claims he supported and was involved in political activities encouraging Pashtun students not to be attracted to extremist ideologies and instead follow the ideology of the ANP’s leader. He claims he was intimidated and bullied by students who wanted Pakistan to adopt Sharia Law, however he continued to encourage students to join the PSF.
The applicant claims that due to his political activity, on [date] October 2012, he was appointed as the [Position 1] of the PSF at [college] in Peshawar after interviewing with the [PSF President] in relation to his commitment and knowledge of the ANP. He claims he had the following responsibilities as the [Position 1] of the PSF:
(a)organise meetings, including inviting people to meetings;
(b)meeting minute taker;
(c)spreading the ANP’s ideology;
(d)encouraging students to join the ANP;
(e)assist organisers during elections to engage in political work in support of the ANP’s leaders; and,
(f)communicate with the Provincial PSF Committee to develop political strategies.
The applicant claims that during the 2013 national and provincial elections, he was actively involved in campaigning for the ANP leaders in his area despite being warned by the Taliban not to do so. He claims the ANP did not perform well at these elections due to intimidation from other political parties and the Taliban.
The applicant claims he was actively involved in political activities supporting [Mr A], [a politician].
The applicant claims that in October 2013, he was re-elected as the [Position 1] of the PSF.
The applicant claims that in late 2013, PSF leaders decided he should join [College 1] in Peshawar in order to improve and increase the political activities in that college, which he claims he managed to do.
The applicant claims that after graduating from college, in October 2014 he became a [teacher] at a [school], [College 2]. He claims he encouraged his students and their parents to follow the path of tolerance, non-violence and liberal thinking, and to appreciate other people’s culture and perspectives. He claims some parents did not like this. He claims that because he encouraged children to question and challenge if they saw anything wrong, Sunni extremists perceived him to be a person involved in activities against them. He claims he started to receive threats by phone.
The applicant claims he became a member of the ANP in March 2016 by [invitation]. He claims that following this, Sunni extremists considered the applicant to be a potential ANP leader. He claims the Sunni extremists knew of the applicant’s commitment towards creating a secular and democratic government in Pakistan as opposed to a conservative Islamic government. He claims the local mullahs and Sunni extremists formed the view that in the near future, he would enter active political work for the ANP and threaten their political and religious survival, so they started threatening him.
The applicant claims he received three threat letters from the Tehreek-e-Taliban Pakistan (TTP) [in] March 2016, [April] 2016 and [May] 2016, which warned him to stop his political activities and teaching. He claims that while he did not take the threats seriously, he restricted his movement.
The applicant claims that on [date] May 2016, gunmen on a motorcycle fired shots at him when he was on his own motorcycle. He claims he sped up and weaved through the traffic in order to escape the gunmen. He claims that on [date] May 2016, he lodged a First Information Report with the police in relation to this incident.
The applicant claims that from May 2016 to October 2016, he stopped going to work and lived in different places. He claims his family helped him organise his travel to Australia.
The applicant claims he suffers mental health issues and trauma due to his experiences in Pakistan.
The applicant states that if he returns to Pakistan, he fears harm for the following reasons:
(a)holding a political opinion in support of the ANP;
(b)his active political involvement with the ANP and PSF;
(c)his political opinion against the Taliban, ISIS and other Islamic extremist organisations, such as the TTP and SSP; and,
(d)due to his liberal and secular thinking and encouraging young students, including women to get an education, he would be perceived as an anti-Islamic person and western cultured person.
The applicant claims he will not be afforded state protection as the Taliban and other extremist organisations have significant links with the ISI, police and the judiciary. He claims the authorities are unwilling to protect him due to the influence of extremists, as well as due to the lack of resources.
The applicant claims he cannot relocate within Pakistan for the following reasons:
(a)he suffers from significant mental health issues and he would face practical difficulties in relocating;
(b)his Urdu accent is different from other Urdu speakers from the Punjab and Sindh provinces, so he would be easily identified as an outsider;
(c)in Karachi, he would be more vulnerable to attacks from Sindhi nationalists and MQM, who hate Pashtuns;
(d)he cannot speak Punjabi or Sindhi, so he would face practical difficulties with relocation; and
(e)he would face significant issues with obtaining employment, because potential employers would be able to identify him as a Pashtun from Peshawar through his Pakistani identity card.
Applicant statement dated 1 November 2021
The applicant provided an updated statement to the Tribunal dated 1 November 2021.
The applicant states he is a member of the ANP, which is a secular party that promotes the rights of Pashtuns, stands for secularism and stands against Islamic extremism. He states that due to this, ANP members and activists continue to be targeted and killed by the Taliban and its affiliated Islamic extremist groups.
The applicant requests the Tribunal to consider the recent changes in Afghanistan, which he states has a significant influence in Pakistan. He claims the Afghan Taliban is supported by the TTP and recent country information confirms that there has been a surge in violence in Pakistan since the Taliban took over Afghanistan. He claims that recent country information confirms that the Pakistani government, including the military and ISI, support and recognise the Taliban as a government. He further claims that therefore, the Pakistani government supports a violent movement and a terrorist organisation. He claims that the Afghan Taliban and the TTP maintain close connections and the Pakistani government supports the TTP, so therefore the Pakistani government will not take any action against the TTP and other Islamic extremist groups.
The applicant states that due to recent changes, people like him have become vulnerable targets of the Taliban and its affiliated groups, and the Pakistani authorities are unwilling to protect them.
The applicant states he fears being targeted, harmed and killed in Pakistan due to his opinion against the Taliban and his support of secularism. He states that based on recent country information, his fear of harm is real.
The applicant claims that Pashtuns in Pakistan continue to face ethnic profiling and severe discrimination. He claims that anyone who appears to support Pashtuns faces serious harm by the Pakistani military.
The applicant states his fear is nationwide and he would face practical difficulties in relocating internally, so it is not a reasonable option in his case.
The applicant states he is married and his wife and child are in Australia. He states his wife suffers medical conditions including depressing and stress and she fears him being returned to Pakistan.
Representative submissions dated 2 November 2021
The applicant’s representative provided pre-hearing written submissions to the Tribunal dated 2 November 2021, which includes copies of a number of sources of country information.
The representative reiterates that the applicant fears facing significant harm, including torture, degrading, inhumane, cruel and ill treatment and abuse from Islamic extremists in Pakistan due to his active and perceived opinion against them, as well as his membership and affiliation with the ANP.
The representative submits that recent country information confirms that ANP members and activists continue to face ongoing violence in Pakistan, and that Sunni Islamic extremism and terrorism continues to grow in Pakistan.
The representative submits that recent country information confirms that Pakistani authorities maintain contacts and links with Sunni extremists, and therefore effective state protection is not available to the applicant.
The representative submits that recent country information confirms that Sunni Islamic extremist militant groups are on the rise and that the Pakistani state, through its inaction, passively and/or actively condones Sunni extremism and terrorism across Pakistan. He submits that Sunni extremists have the support of Pakistani politicians. On that basis, he submits it is impossible for the applicant to access effective state protection from the Pakistani state authorities.
The representative submits that on the basis of recent country information, Islamic extremist groups continue to build networks and their presence in Islamabad, Peshawar, Quetta, Karachi, Lahore and Rawalpindi and therefore it would be unreasonable for the applicant to relocate to any of the major cities, as he will face a real risk of significant harm. He further submits that those regions, as well as Peshawar are under increasing threat from the TTP.
The representative submits that Sunni extremist groups consider people like the applicant as ‘kafir’ and ‘infidels’, who are targeted in attacks.
The representative submits that religious extremism is spreading throughout Pakistan, and that liberal-minded people are being targeted in Pakistan.
Applicant statement dated 18 November 2021
The applicant provided an updated statement to the Tribunal dated 18 November 2021.
The applicant submits there is still ongoing violations and attacks against ANP members throughout Pakistan.
The applicant reiterates that the minimum age to join the ANP is 16-years-old, so he initially joined the PSF, the ANP’s student wing and built his political profile. He submits that the PSF plays a major role in every political party, as that is where emerging leaders are generally identified and groomed for future leadership. He reiterates that he later joined the ANP and built on the political profile he had bult at PSF, and he gradually became a person of interest in the eyes of other political parties and Islamic extremists operating under the Taliban’s guidance.
The applicant submits the Taliban targets both ANP and PSF members and they continue to look and hunt people who they perceive as present or future threats.
The applicant submits there is severe discrimination and ethnic profiling targeting Pashtuns, particularly in recent times with the escalation of Pashtun Nationalism.
The applicant submits he would face practical difficulties with relocating to other areas in Pakistan due to his Pashtun ethnicity and the severe discrimination and ethnic profiling he would face, as well as his mental health issues, and therefore internal relocation is not a reasonable option for him.
The applicant submits that recent developments in Afghanistan have an effect on the situation in Pakistan now and in the foreseeable future. He submits that the TTP is the ideological twin of the Afghan Taliban, and as Afghanistan has become a safe haven for the Afghan Taliban, there is a real possibility that the TTP will follow in the Afghan Taliban’s footsteps and establish a network in Pakistan. He submits that recent country information confirms his fear of harm is real, as there has been a sudden increase in violent activities by the TTP since the rise of the Afghan Taliban in Afghanistan. He further submits that terrorist attacks and activities in Pakistan have increased to the highest level in over four years, signalling growing instability in Pakistan.
The applicant submits that Imran Khan has a ‘soft corner towards Taliban’ and that the current government is under the influence of the ISI and military, and therefore the state will not be able to provide any protection for people like him. He submits he would not be able to lead a safe and dignified life in Pakistan.
The applicant submits that based on recent country information there is a real risk that he will face harm in Pakistan now or in the foreseeable future and if that happens, his child will be left without a father.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application forms, which were lodged on 27 October 2016;
(b)the applicant’s identity documents, being copies of his passport, birth certificate, Pakistani national identity card, Pakistani family registration certificate, Pakistani tribal domicile certificate, ANP membership card and PSF membership card;
(c)the protection visa decision record dated 5 September 2018 (delegate’s decision), a copy of which has not been provided to the Tribunal by the applicant;
(d)the application for review form dated 10 September 2018;
(e)all documents submitted to the Department contained in Department file [number] in support of the applicant’s protection visa application, including:
·written submissions from the applicant’s representative dated 9 January 2017 and 15 August 2018;
·the applicant’s statutory declaration, sworn on 26 October 2016;
·threat letters issued by the TTP dated 28 March 2016, 19 April 2016 and 2 May 2016;
·first information report filed by the applicant at [a] police station dated 13 May 2016;
·letter addressed to [the] police station from [President] of the ANP dated 5 May 2016;
·letters from [Mr A] dated 15 November 2016 and 25 August 2017;
·letter [dated] 28 August 2017;
·letter from [Position 1] of the ANP [Peshawar] dated 24 August 2017;
·letter [from] the ANP in Peshawar, Khyber Pakhtunkhwa dated 25 August 2017;
·letter from [President] of the ANP and [Position 1] of the ANP dated 24 August 2017;
·letter from [name deleted], Provincial Vice President of the PSF dated 25 August 2017;
·employment reference letter from [the] Principal of the [College 2] dated 5 August 2016;
·the applicant’s qualifications;
·the applicant’s medical records;
·the applicant’s police clearance certificate issued by the Office of the Capital City Police in Peshawar
·various news articles concerning Pakistan;
·report entitled ‘Shortage of psychiatrists a problem in Pakistan’, prepared by Khabir Ahmad and published in Volume 370 of The Lancet on 8 September 2007;
·an untranslated document containing a photograph of an unknown person; and
·unannotated photographs of ANP supporters.
(f)all documents submitted to the Tribunal in support of the applicant’s application for review, including:
·pre-hearing written submissions from the applicant’s representative dated 22 December 2016 and 2 November 2021, including copies of various sources of country information;
·a signed statement from the applicant dated 1 November 2021;
·the applicant’s Queensland marriage certificate;
·letter [dated] 12 October 2021;
·statement [dated] 14 October 2021;
·letter from [dated] 11 October 2021;
·witness statement from [the] applicant’s uncle dated 20 September 2021;
·witness statement from [the] applicant’s wife dated 25 October 2021; and
·post-hearing submissions from the applicant received on 18 November 2021, including:
oa signed statement from the applicant dated 18 November 2021;
othe applicant’s student identity card issued by the [college] Peshawar;
othe applicant’s detailed marks certificate in relation to his [degree]; and
ovarious news articles.
(g)Country information from the applicant’s submissions and other sources, discussed further below, including the Department of Foreign Affairs and Trade’s (DFAT) latest country information report on Pakistan, published on 25 January 2022 (DFAT report on Pakistan).
Country of reference / receiving country:

The applicant claims to be a Pakistani national. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 8 November 2021 to give evidence and present arguments in support of his case at an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages. The Tribunal also received oral evidence from the applicant’s [uncle].
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Pakistan. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Pakistan. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Pakistan.
The Tribunal discussed the applicant’s claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision. It confirmed that those claims as so summarised were not in dispute. The applicant confirmed that those claims were accurate and complete. He confirmed that he made a political claim in relation to his membership of the ANP and PSF, a claim based on his race as a Pashtun, a claim based on his mental health status and also claims that he is unable to relocate. The Tribunal explained that it would consider each of his claims separately, and then consider them cumulatively. The Tribunal also explained that it would seek to determine what the facts were and would then consider those facts in the light of country information that it had from its own external sources and had received from the representative.
The Tribunal also discussed with the applicant some of his background, learning that the applicant’s parents and three brothers were still resident in Pakistan. He also stated that his father and brothers were all members of the ANP. When asked whether they suffered at the hands of the TTP, the applicant replied that none of them held leadership positions within the party and therefore had no issues.
The Tribunal noted the multiple submissions received by both the Department and the Tribunal over time from the applicant’s Representative. It noted that those submissions contained multiple sources of Country Information, particularly relating to membership of political parties and the rise of the Taliban in Pakistan following its very recent incursion into Afghanistan. The Tribunal also noted, particularly latterly, the submission of numerous letters and Certificates relating to the applicant’s qualifications, employment and membership of political parties. It also noted the plethora of letters of support submitted as corroboration of the applicant’s claims.
The Tribunal noted that the applicant had not provided a copy of the Delegate’s decision to the Tribunal. It also noted a formal letter from the applicant’s Representative made in response to the Tribunal’s request to provide a copy of the Delegate’s decision. The effect of the letter of advice was that the Representative would not be providing a copy of the Delegate’s decision as it did not believe it was in the applicant’s best interests to do so.
Acknowledging that advice, the Tribunal discussed the decision of the Delegate with the applicant. The Tribunal noted that the Delegate had accepted that the applicant is ethnically Pashtun, that he came from the KPK and belongs to the Sunni denomination of Islam. The Delegate also acknowledged that the applicant had low level involvement with the PSF.
The Tribunal noted the Delegate’s concern in relation to a previous Visitor Visa Application the applicant had made which had been refused in 2015. When put to the applicant during the interview with the Delegate, the applicant stated that he could not recall having made a previous Visa application. In that Visa application, the applicant had stated that he was a university [student]. The Delegate was concerned that the information contained in the Visitor Visa Application was inconsistent with the supporting information the applicant had provided to the Department in his Protection Visa Application. The Delegate noted that the applicant stated that he was unable to remember having made a previous Visitor Visa Application, explaining the cause of this inability to remember being related to his mental health issues and stress. The Tribunal noted that the Delegate was dismissive of that explanation as the applicant’s memory and recollection of events in relation to his claims was quite detailed and specific. The Delegate formed the view that the applicant had provided fraudulent documentation to the Department and that as a consequence of doing this, made certain findings in relation to the applicant’s credibility and considered that the prevalence of fraudulent documentation and its availability in Pakistan, coupled with the applicant’s apparent willingness to provide fraudulent documentation to the Department, did not accept that the evidence provided by the applicant to the Department was genuine. In addition, the Delegate was not prepared to accept that the applicant was a teacher or a member of the ANP as claimed. The Delegate did not accept the applicant’s claim that he was a [Position 1] of the PSF.
The Tribunal discussed with the applicant the Delegate’s findings in relation to his credibility. In particular, the Tribunal discussed with the applicant the circumstances of his application for a Visitor Visa in July 2015 and its refusal. It noted that the applicant’s response to the Delegate was that he could not recall having made such an application. The Tribunal discussed this issue with the applicant. The applicant now stated that having discussed this issue with his family, he did now have a recollection of the Visitor Visa having been applied for and having been rejected.
Indeed, the applicant was accompanied to the Tribunal hearing by his uncle, [and] it was his uncle who provided much of the background to the fact of the Visitor Visa Application being made on behalf of the applicant. The uncle explained that in 2015 he was having surgery and that before he did that, he felt that it would be useful to have the applicant in Australia assisting him given that he and his wife had a [baby]. Accordingly, it was the uncle who had prepared the application for the Visitor Visa and had submitted it to the applicant in Pakistan for signing. The point being made was that the arrangements for the applicant to come to Australia were hatched and made by the uncle and his brother, being the applicant’s father. The contention was that the Visitor Visa Application was simply thrust in front of the applicant for signing, which is what he did and thereafter had no real involvement in the process. Consequently, he had no recollection of the Visa Application having been made as the applicant claims that the extent of his involvement in the plan was that he was asked whether he would like to visit Australia and was later told that he could not. When asked about it by the Delegate, he replied that at the time of making his Protection Visa Application, and at the time of the interview which was, as he put it, some years later, he did not recollect having signed an Application Form that had been put before him.
Not being completely persuaded by that explanation, the Tribunal put to the applicant that his application for the Visitor Visa referred to him as being a student of a [university]. The applicant stated, as he had told the Delegate, that that was correct, that he was studying [at] university. The Tribunal noted, as had the Delegate, that in his Protection Visa Application and in his evidence to the Delegate and now to the Tribunal, it was that the applicant was in fact a school-teacher. The applicant confirmed that that was also the case, but the applicant stated that he had not at any time said that he was a full-time teacher. He was both a teacher and a student, teaching at a school before lunch and attending university and his various political activities after lunch.
And to that end, the applicant handed up a copy of his university academic [results], together with a copy of his university student card. The Tribunal noted each.
The Tribunal considered further the applicant’s previous evidence in relation to him being a teacher. And noting that he had told the Delegate that he did not hold qualifications for teaching as such but had obtained excellent results at school which led to an offer being made to him to be a teacher at the school he had attended.
The applicant explained to the Tribunal that he came from a family of [academics]. He then provided a further and somewhat detailed explanation about his role as a teacher. Firstly, he stated that as he was teaching in a [school], it was not necessary for him to have the formal teaching [qualifications]. The Tribunal then engaged the applicant in a discussion of his role as a teacher at the [school] and formed the view that the job description as teacher may be an overreach and that his role was more akin to a Teacher’s Aide or Tutor but with those roles being performed within the school precinct, and during school hours.
Based on the evidence of his uncle, and the presentation of his academic results and student ID, together with a more fulsome explanation of his role as a teacher in Pakistan, the Tribunal is inclined to give the applicant the benefit of the doubt in relation to his explanations and therefore accepts his explanation for having omitted to include a reference to his previous Visitor Visa Application and refusal in his Protection Visa Application and in his interview with the departmental Delegate.
In addition to his uncle, the applicant also offered a number of witnesses to the hearing, including his wife and a [Mr B] who was now resident in Australia but was prepared to give evidence of his knowledge of the applicant, his life in Pakistan, and his involvement with the PSF and the ANP both in Pakistan and now presently in Australia. The applicant also provided the names of two additional witnesses, neither of whom the Tribunal was able to make contact with during the hearing. The Tribunal will discuss this aspect later in this decision.
The evidence of the two witnesses will be considered below.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal considered the applicant’s specific claims.
The Tribunal took further evidence from the applicant’s uncle.
Again, he confirmed that he was the brother of the applicant’s father. He stated that he was not a member of the ANP but was a supporter.
He explained that he arrived in Australia in 2006 pursuant to a Student Visa. He studied and subsequently worked [in] Brisbane.
Asked whether he knew of the applicant’s membership of the ANP, he answered that he did know that he was a member.
Noting that the uncle had been in Australia since 2006, the Tribunal enquired as to how he knew that the applicant was a member of the ANP and whether it could only be because the applicant had told him. The witness replied that that was true but that he was also aware through discussions with the applicant’s father and his brothers. He mentioned that he spoke regularly with his brother in Pakistan. He also stated that he returns to Pakistan himself every couple of years. Asked whether he experiences any difficulties in returning to Pakistan, he said he does not, mainly because he goes to the village where the family live which is in a frontier area and that he is not a member of the ANP. He did go on to say that he does have concerns about the presence of the Taliban and also went on to offer that when he returns to Pakistan, he is generally discreet because he is now an Australian citizen and because of his known association with members of his family who are all involved in the ANP.
Noting further that the applicant had stated that his own parents and three brothers continued to live in Pakistan and all were members of the ANP and live there without issue, the Tribunal sought the witness’s confirmation of that. The witness confirmed that the applicant’s family do continue to live in Pakistan but generally restrict their movements. It also noted that they have no choice but to live there.
The Tribunal pressed the witness more in relation to the applicant’s membership of political parties in Pakistan. The uncle responded that his family were all very politically active and talked about politics regularly. He also went on to state that he had in fact seen the applicant organising meetings. Asked what the applicant did, he replied that he organised members to meet at the family home. Asked how many and who these people were, the uncle replied that they were classmates and university colleagues who were members of the student wing, youths. The Tribunal confirmed that it was in fact the applicant organising meetings of the PSF. The witness confirmed that was the case and went on to explain that the applicant is very popular with his friends and youth generally. It was not uncommon for the applicant to be attending dinners with members of the PSF and ANP.
Asked about the applicant’s claim in relation to the Taliban attack in May 2016, (the Tribunal noting that the witness was in Australia at that time), the witness confirmed that he was aware of the attack on the applicant as his brother had called him to tell him about it. After that, the witness claims his brother called him and asked whether he could send his son to him in Australia. Consequently, it was the uncle that sponsored the Visitor Visa. He also offered that the applicant had tried to go to live in Islamabad with other relatives but felt unsafe.
The Tribunal took evidence from the applicant’s second witness, being his wife.
The applicant’s wife stated that they met in Queensland. She said that they didn’t know each other when they were in Pakistan.
The Tribunal put to her that all of her knowledge in relation to his political activities and education and experiences are known by her solely by reason of the applicant having told her about them. The witness agreed.
The witness did attest to the applicant’s fragile mental state and spoke of his regular flashbacks of his experience at being chased and shot at by the Taliban.

100. The Tribunal took evidence from the applicant’s third witness, [Mr B].
101. The witness stated that he arrived in Australia in 2009 pursuant to a Student Visa. He worked as an [occupation].
102. The witness attested to the applicant’s family, being father, brothers and uncles, all being involved with the ANP. He stated that they were all members of the ANP. He went on to add that the applicant’s father had been involved with the ANP for a very long time. He stated that he (the witness) had a brother who was a [occupation] for the ANP.
103. He then stated that his own brother contested the last election as a candidate for the ANP. He said his brother was a [role] of a District and a member of the Provincial County.
104. The witness reiterated that the applicant was a member of the ANP in Pakistan. He also stated that the applicant was a member of the Australian Branch of the ANP, being ANP-Australia. Asked what the Australian Branch of the ANP did, the witness stated that it was to improve membership and communicate the objectives of the party. It offered both moral and financial support to the Pakistani party. Its objectives were to get more members in Australia and in Pakistan.

105. The witness stated that the applicant was very active in the [local] Branch of the Australian ANP Party. He stated that the applicant was a very good fundraiser.
106. The Tribunal asked the witness about his knowledge of the applicant’s assault by the Taliban in 2016. The witness stated that he had heard about the incident from the applicant. The witness stated that he wasn’t surprised either by the incident or it happening to the applicant. He said members of the ANP in Pakistan keep a low profile. On that basis, the Tribunal put to the witness that it must be very difficult to persuade people then to become members of the ANP. The witness agreed. The witness also went on to add that he had lost friends to the Taliban in their random attacks.
107. The Tribunal discussed with the witness a concern it had as to how one so young as the applicant could have such a profile within the ANP that would make him a target of the Taliban. The witness explained that the Taliban target children and especially university students. He stated that the Taliban need to create fear because that is how they become powerful. The witness went on to state that the Taliban target everyone and not just leaders. They also target buildings that are recognised as places of teaching, in order to prevent teaching.
108. The witness also stated that he had a younger brother who came to Australia in 2011 pursuant to a Student Visa but obtained a Protection Visa based on his membership of the ANP.
Awami National Party
109. The Tribunal then discussed with the applicant what appeared to be his primary claim for protection, being his membership of a political party, which made him a target of the TTP. The Tribunal discussed with the applicant the PSF which is described by the applicant as a student wing of the ANP. He also discussed the NYO which is considered to be the youth wing of the ANP. He stated that he had not been involved with the NYO.
110. The Tribunal asked the applicant about his involvement with the PSF. The applicant replied that he was a [Position 1] of the PSF. He went on to explain that each school or college was a division of the PSF. He stated that he was the [Position 1] of his particular college.
111. When asked about membership of the ANP, he replied that he became a member in March of 2016. He stated that he joined [a] regional division. He stated that all of his family members were members of [the regional division] and that they continue to be.
112. He went on to add that [the regional division] is a division of [a constituency] in Peshawa. He stated that another PK has merged into [this constituency].
113. The Tribunal asked the applicant about his knowledge of the structure of the ANP. The applicant provided quite a detailed explanation of the various levels within the ANP. He said that the President and General Secretary of the ANP were elected from the National Assembly. He said that members of the National Assembly are elected from the PKs. He indicated that there were over 300 members of the National Assembly.
114. The Tribunal noted that the applicant had only been a member of the ANP for a matter of months before he departed for Australia. It asked the applicant how it could be that someone who had been a member for a matter of months could have such a large political profile when, in fact, he couldn’t even vote yet. The applicant explained that he was very close to his father and followed his father and his political interests. He explained that his father was not a leader, however, he was very interested in leadership and found that he could be very persuasive with young people and even some of their parents. He stated that he rose very quickly through the PSF to [Position 1] and that the ANP were very aware of his progress and position within the PSF and that he was invited to become a member of the ANP. He said that as the members of the ANP could identify his potential, especially when he was a [Position 1] of the PSF, then the Taliban could equally see his potential for leadership and that he would be a threat to the Taliban’s teachings. He reminded the Tribunal that he had upset many parents with his teaching methods when he was a teacher, in encouraging his students to have independent thoughts. He went on to add that the Taliban don’t care about children or hospital patients, they are brutal and will kill anyone in their way or who speaks against them.
115. The Tribunal compared the evidence of the applicant provided to the Tribunal as against the answers to the questions of the Delegate in the Delegate’s interview. The Tribunal noted that the applicant was very much more articulate and appeared to answer the Tribunal’s questions with confidence and ease. Whilst the Delegate had recorded that the applicant often provided irrelevant answers and sometimes provided as an excuse his poor memory which was a consequence of his mental health and stress, the Tribunal saw none of that. The applicant did not hide behind any loss of memory and did not need to be dragged back to a question. The Tribunal, however, acknowledged that in the case of reviews, it is not uncommon for an applicant to be better prepared or rehearsed and have had the benefit of awareness of the types of questions to be addressed.
116. The Tribunal noted the comments of the Delegate and his concerns that there appeared to be a paucity of evidence in relation to the applicant’s appointment as [Position 1] of the PSF. The Delegate noted in particular the absence of any photos of his election standing as [Position 1] and the absence of any photos of the applicant as [Position 1] commanding or presiding over meetings of members. He also noted that there were no samples of Minutes of Meetings over which he presided presented to the Department.
117. To an extent, the applicant has taken notice of that and provided to the Department, post-interview, and to the Tribunal, a plethora of letters from people supporting his claim to be the [Position 1] of the PSF. The applicant provided a letter from the President [and] General Secretary [who] stated they were the people responsible for inviting the applicant to become a member of the ANP and who approved his membership. Other letters, including from [Mr A] confirmed that the applicant was a member, and that other family members were [members]. The Tribunal also noted a copy of the applicant’s membership card of the Awami National Party Pukhtunkhwa and his ID card for the Pakhtun Student Federation.
118. As the Delegate rightly noted, the photographs provided were not descriptive of any particular meeting and did not identify the applicant as presiding over them. However, there is evidence of people in attendance at the meeting wearing armbands and caps bearing ANP insignia.
119. On the strength of the letters and photos provided and the evidence of the witnesses made available to the Tribunal, the Tribunal is satisfied that the applicant was a member of the PSF, was a [Position 1] of his particular PSF and subsequently became a member of the ANP in March 2016.
120. The Tribunal then turned its attention to the applicant’s claims in relation to his receipt of certain “night letters” and an assault by the TTP.
121. The applicant claims to have received three “night letters” which were stuck to the front door of his family’s home. The applicant concedes that at first sight he didn’t take the letters seriously. He stated that when he received the first letter, he tried to think where it came from and who would send it to him. He claimed that he showed his parents and there appeared to be a general consensus that as the election was approaching, such letters were being issued to scare people.
122. The applicant admits that the receipt of the three letters had not deterred his activities. He then became aware that if the Taliban suspect someone is not taking their threats seriously, they will react immediately. And so it was that the applicant received a very graphic threat by phone call shortly after receipt of the third letter.
123. The Tribunal attempted to nail down a specific timeline in relation to the threats received by him and the attack inflicted upon him.
124. Again, the applicant responded articulately and with apparent clear recollection. He stated that he received the last letter on 2 May 2016. He stated that he received a phone call threat at about [time] a week or so later.
125. He stated that the shooting took place on [date] May 2016. The Tribunal asked the applicant to detail the events leading up to and at the time of the alleged shooting. The applicant stated that it was [day], [date] May. He said he was returning from school to his brother’s hostel to visit him. He became aware of a vehicle following him some five minutes before the pistol shot. He said that as he approached a roundabout, a pistol shot rang out and that he felt a pain in his leg.
126. The Tribunal asked the applicant how he could be so certain that he was a target of the shooting and that it wasn’t some random act. The applicant replied that he was convinced he was the target. He said he had been followed for six to seven minutes. He said he had attempted to get lost in the crowded traffic. He said in relation to the shooting, he didn’t believe at first that he had been hit as he didn’t really feel anything but shortly after saw some blood on his leg.
127. The Tribunal asked the applicant whether he had reported a shooting to the Police. The applicant became quite animated as he explained that his father took him to the Police Station the next day and made a First Incident Report. He referenced the First Incident Report that had previously been submitted to the Department. The Tribunal noted the translated version of the report and commented that the accused party was an unknown person. He had not alleged that the shooter or the people chasing him were members of the TTP. He referred to them just as the accused. Asked why, the applicant explained that he couldn’t trust the Police. That also explained why the FIR did not refer to the night letters that had been received. The applicant said that he didn’t trust the Police to give them copies of the letters.
128. The Tribunal noted that the applicant had provided letters from a Pakistani advocate who attested to the validity of the FIR. The advocate stated that he had visited the Police Station and had identified the original of the FIR and attested that the document submitted was the same. The advocate had also provided details of his registration and qualifications.
129. The advocate had been offered as a witness to the hearing but when the Tribunal attempted to contact the advocate to provide oral evidence, the telephone was not answered.
130. The Tribunal explained to the applicant that it was concerned by this, given the prevalence of creation of fraudulent documentation in Pakistan and referred to Country Information referenced herein.
131. The latest DFAT country information report on Pakistan[3] reports the following concerning document fraud, relevant to the applicant’s claims:
5.52 Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.
5.53 Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.
5.54 Union councils and NADRA can verify whether documents are genuine, but they may not be able to identify fraudulently obtained genuine documents. NADRA issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still available from hospitals. FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.
[3] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at p 47.

132. The Representative explained that they could do no more than provide written letters and the telephone number of the advocate. The Tribunal noted that there was no answering machine at the end of the number provided. The representative also referred to a medical report that tended to support the claim of being shot, as a metal fragment was removed from his leg.
133. The Tribunal explained that it remained concerned by the purported evidence offered as corroborating the applicant’s claims to have received threats, night letters, being shot at and having made an FIR. The FIR does not reference the night letters or attempt to identify the TTP as perpetrators. The applicant stated that he did not trust the police. The Tribunal mused that if it was the case that the applicant did not want to identify the assailant, then what was the point in making the FIR in the first place?
134. The Tribunal did note that the applicant’s claims had been consistent throughout the process. But it was also conscious of the possibility of the applicant having embellished his claims by reference to the TTP threats, letters, assault and police report. After due consideration, and having weighted its concerns about this part of the applicant’s evidence, the Tribunal is inclined to give that evidence little weight.
135. The latest DFAT country information report on Pakistan[4] reports the following concerning the ANP and PSF, relevant to the applicant’s claims:
3.73 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 Balochistan. 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.
3.74 The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and work to improve the Pakistan-Afghanistan bilateral relationship. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded 69 and killed at least 20, including prominent ANP politician Haroon Bilour. In June 2019, the Peshawar city district president of ANP, Sartaj Khan, was gunned down in Gulbahar, Khyber Pakhtunkhwa. The ANP was also the target of TTP attacks ahead of the May 2013 elections. While security operations have weakened the TTP in recent years, they retain the capacity and intent to target ANP members and leadership.
3.75 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.
[4] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at pp 28-29.

136. The Tribunal also considered the latest DFAT country information report on Pakistan[5] reports the following concerning Islamic extremist groups, including the Afghan Taliban, relevant to the applicant’s claims:
[5] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at pp 13-17.
Security situation
2.34 Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, genderbased issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
2.35 Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks.
2.36 Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
2.37 While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).
2.38 Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.
Domestic jihadist groups
2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
2.40 TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.

2.41 Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan. See also Race/Nationality and Religion.
Global jihadist groups
2.42 Islamic State (IS) and Al Qaeda both have a presence in Pakistan and have carried out attacks there, either directly or through proxies. Both groups are motivated to expand their influence and recruit fighters to their cause. They have targeted Pakistani military and government representatives, and religious and ethnic minorities, and also carried out anti-Western attacks. Besides LeJ, Al Qaeda has frequently collaborated with the TTP to carry out attacks. Al Qaeda’s capability in Pakistan has been reduced, but the group is still active. Two suspected Al Qaeda terrorists were reportedly killed in an encounter with police in Dera Ghazi Khan in November 2020. Recent IS attacks in Pakistan include the bombing of a mosque in Quetta in January 2020 that killed 15 people, and an attack in January 2021 that killed 11 Hazara miners in Balochistan. Many fighters for Islamic State in Khorasan Province (ISKP, the local branch of IS active in Pakistan and Afghanistan) are former TTP fighters, and the group has also carried out attacks in coordination with LeJ, including a 2016 attack on a Quetta police station.
Cross-border volatility
2.51 Violence occurs along Pakistan’s borders with India, Afghanistan and Iran, including mortar and artillery attacks, and gunfights. In 2020, the Indian Border Security Force clashed numerous times with the Pakistan Army, and killed Pakistani civilians; 45 Pakistanis died and 204 were injured in cross-border attacks from India in 2020. There were 11 cross-border attacks from Afghanistan in 2020, involving the Taliban, Afghan National Army and Afghan border forces; 17 died and 18 were injured in these attacks.
2.50 With the Taliban seizing power in Afghanistan in August 2021, Pakistan bolstered security along its land border with Afghanistan. Pakistan has completed over 90 per cent of a border fence between the two countries, but its border with Afghanistan remains porous and susceptible to irregular migration and people smuggling, movement of terrorists and extremists, and transit of narcotics and other illicit goods. As the economic and human rights situation in Afghanistan deteriorates, further displacement of Afghans across the border to Pakistan is possible.

137. The Tribunal also considered country information from external sources.
138. The TTP has a wide geographical spread in Pakistan and the danger that the applicant faces from them is relative to the particular circumstances of the applicant. Overall, the TTP is present in all four of Pakistan’s provinces.[6] Punjab province, of which Lahore is the capital, is the traditional home of Punjabi extremists such as Sipah-e-Sahaba, Jaish-e-Mohammed and Lashkar-e-Jhangvi.[7] These groups are thought to be linked with the TTP and are sometimes referred to, collectively, as ‘the Punjabi Taliban’.[8]
[6] South Asia Terrorism Portal, ‘Tehrik-e-Taliban Pakistan (TTP)’.
[7] Centre for Research and Security Studies, ‘CRSS Annual Security Report’, April 2017.
[8] The Economist, ‘Into the heartland’, 3 June 2010.
139. There is a history of criminal groups sending extortion letters to individuals in Pakistan, fraudulently claiming to be from the TTP.[9] Reporting on this in November 2013, Agence France Presse (AFP) stated that criminals were ‘exploiting the terrifying reputation of the Pakistani Taliban to extort money’ from individuals.[10] The article includes an example of a businessman in Islamabad who received an extortion letter, headed with the banner of the Pakistani Taliban and signed by a TTP chief. Although the signature and letterhead were fake, the recipient took the threat seriously and paid the ransom demanded. The TTP themselves have acknowledged the trend and have attempted to distance themselves from such letters by posting a statement in 2013 denouncing extortion attempts.[11]
[9] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013.
[10] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013.
[11] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013.
140. Limited reporting is available specifically regarding threat letters issued by the TTP; the majority of reporting focuses on the Afghan Taliban. The limited information available indicates that the TTP and other associated groups, including the Haqqani Network, is responsible for sending threatening letters, extortion demands and death threats to individuals, despite distancing itself from sending threatening letters for the purpose of extorting money.[12]
[12] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013; Gandhara, ‘Taliban See Resurgence in Northwestern Pakistan’, 23 August 2019; Critical Threats, ‘Pakistan Security Brief’, 5 March 2014; CNN, ‘The Haqqani Network, a family and a terror group’, 14 September 2009.
141. A fact-finding mission report on Pakistan published by the Austrian Federal Office for Immigration and Asylum provides as follows:[13]
The practice of sending threat letters is generally uncommon among the lower middle and lower classes and usually only high profile politicians, journalists and members of NGOs who are publicly active against militant groups receive threat letters. Here again, the local experts interviewed are of the opinion that a “low-profile” person will not receive a threat letter.
A much bigger problem seems to be the practice of extortion through which criminals and/or militants obtain money by making use of threats and intimidation. There are many reports of militants extorting money from the wealthy and it is quite obvious that only people with sufficient means will be targeted in this manner. It is also common for criminals to pretend to be militants and exploit the fear of the people in order to obtain money more easily.
[13] Austrian Federal Office for Immigration and Asylum, ‘Fact finding mission report: Pakistan’, September 2015, at 40-41.

142. The United States Department of State’s country report on terrorism provides that the TTP “likely raises most of its funds through kidnapping-for-ransom payments, extortion and other criminal activity’.[14]
[14] United States Department of State, Country Reports on Terrorism, 2019, at 301.
143. The Country Information cited above would tend to support the Tribunal’s attitude towards the night letters and consequent attack on the applicant. The applicant is not a leader of the ANP, he was barely a member for three months. The letters to the applicant were not extortion demands.
144. The representative had also provided an array of articles and media reports which are largely consistent with the DFAT Report and other sources quoted, that there is an increase in sectarian violence, and that Taliban attacks in Pakistan have increased. He cited news that since the takeover of Afghanistan, terror attacks in Pakistan are now the highest in four years.
145. He produced articles supporting the notion that the Afghan Taliban’s triumph has emboldened Islamic militants, including those in the TTP, and boosted morale.
146. Notwithstanding the number of articles presented, they all supported the contention that the population generally were at greater risk. Those articles did not identify any particular group being targeted, but reported what events had been targeted.
147. And so the Tribunal finds that even though the applicant has persuaded the Tribunal that TTP and Taliban attacks are more likely in Pakistan following the takeover of Afghanistan, it is the case that it is the population generally that are at threat. The Tribunal accepts and understands that there is generalised violence in parts of Pakistan but, as explained to the applicant, the applicant is exposed to the same risk that all other Pakistanis are exposed to, especially in relation to the activities of criminals and gangs and others purporting to be, or to be affiliated with, the TTP and the Taliban itself. The applicant did not identify any other particular personal risk of harm to the applicant.
148. The Tribunal is persuaded by the latest DFAT Report, that indicates 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.
149. As determined, the Tribunal does not believe the applicant to be a leader within the ANP – he had been a member for barely three months before departing Pakistan, and as he has not been present in Pakistan for some years, he has not participated in the PTM protest movement himself.
Pashtuns
150. The Tribunal considered the applicant’s claim to be persecuted by reason of his Pashtun race.
151. The latest DFAT country information report on Pakistan[15] reports the following concerning the treatment of Pashtuns, relevant to the applicant’s claims:
3.13 The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair-skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns may also wear distinctive clothing, such as the red-and-black ‘Pashteen hat’, which has reportedly become a symbol of the Pashtun Tahafuz Movement (PTM). Pashtun culture emphasises tribal and family relations, as well as customary norms known as Pashtunwali. Pashtuns speak an Eastern Iranian language called Pashto. Most, but not all, follow Sunni Islam (see Turis, Bangash).
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 Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
3.16 Until 2018, those living in the FATA were governed under separate, extra-constitutional arrangements, which denied them some fundamental rights (see Political System). Residents of Khyber Pakhtunkhwa, including the former FATA, now have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats under the Khyber Pakhtunkhwa Alternate Dispute Resolution Act (2020) (see Judiciary). In 2017 civilians living in the FATA were injured and lost access to land due to landmines left over from security operations.
3.17 Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (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 Balochistan.
3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns.
[15] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at pp 19-20.

152. The representative submitted many articles about racial profiling of Pashtuns, especially in Punjab districts. Media reports alluded to harassment and of being treated as suspects by virtue of their appearance. The representative spoke of an ethnic bias against Pashtuns.
153. The Tribunal is persuaded by the latest DFAT Report on Pakistan, that at worst, Pashtuns face a moderate risk of violence and otherwise a low risk of societal discrimination.
Access to medical treatment
154. The applicant had alluded to suffering from mental stress.
155. The Tribunal noted that it is apparent the applicant refers to his mental health issues more as a reason for his inability to relocate within Pakistan, than as a claim for persecution in itself. Notwithstanding, the Tribunal has considered the potential claim.
156. The latest DFAT country information report on Pakistan[16] reports the following concerning access to medical treatment, relevant to the applicant’s claims:
2.10 The overall standard and availability of healthcare in Pakistan is low. The Lancet’s Healthcare Access and Quality Index ranks Pakistan’s healthcare system 154 out of 189 countries. According to the UNDP, Pakistan spends approximately 2.9 per cent of GDP per year on health, low by global standards. There is one doctor per 1,000 people, and even fewer nurses and midwives. Life expectancy is 67.3 years (68.3 years for women, 66.3 years for men). The infant mortality rate is 57.2 per 1,000 live births.
2.11 Healthcare in Pakistan is provided by a mix of public and private hospitals, clinics and GPs. Village based ‘Lady Health Workers’ service many rural communities, and there is also a range of traditional healers and unlicensed medical practitioners. The quality and availability of healthcare is generally much better in cities than in rural areas.
2.12 As much as 70 per cent of healthcare costs are borne as out-of-pocket expenses by patients, and catastrophic healthcare expenditures can push households into poverty, especially in rural areas. Public healthcare services were decentralised in 2010. Quality and availability vary across the country. Since early 2021, Khyber Pakhtunkhwa province has provided free public health insurance for families living below the poverty line through its Sehat Sahulat scheme. The program is now being rolled out in Punjab. The scheme has been praised for improving access to healthcare for the very poor in these regions.
2.14 Mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated. Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers known as baba, pir or sufi. COVID-19 has reportedly worsened the mental health situation in Pakistan.
2.15 The first cases of COVID-19 were recorded in Pakistan in February 2020. Pakistan has experienced at least four waves of the disease and daily case numbers peaked at more than 12,000. As of January 2022, more than 1.3 million people had caught the virus and over 28,000 had died. Punjab, Khyber Pakhtunkhwa and Sindh (particularly Karachi) have been especially hard-hit.
2.16 Since the beginning of the pandemic, the government has prioritised the economy and livelihoods alongside public health concerns. Prime Minister Khan said Pakistan could not afford the types of hard lockdowns used by wealthier countries, and the government instead relied on ‘smart’ lockdowns – short-term, localised restrictions – to slow infections. A total of 36 per cent of the population was fully vaccinated as of January 2022. To ease the burden on the public health system, the government has allowed Pakistanis to pay for private vaccinations, which critics claim is unfair on the poor.
[16] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at pp 9-10.

157. The Tribunal also considered country information from external sources.
158. In tribal areas, the support of a clan may be necessary to access healthcare as referrals and treatment may be organised in local communities rather than by medical administrators or doctors.[17] Family support is critical during hospitalisation because care is very basic.[18] Families were more likely to seek medical assistance for boys than for girls, despite them having equal access to government facilities.[19]
[17] 'Austrian Federal Office for Immigration and Asylum Fact Finding Mission Report Pakistan', Government of Austria, September 2015, p.42; 'Country Policy and Information Note - Pakistan: Medical and healthcare provisions', United Kingdom Home Office, September 2020.
[18] 'Austrian Federal Office for Immigration and Asylum Fact Finding Mission Report Pakistan', Government of Austria, September 2015, p.62.
[19] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p.40.
159. The quality and coverage of mental health services in Pakistan is poor. Exact statistics on mental health are not available, but community surveys indicate that about 10 per cent of urban men and a quarter of urban women in Pakistan suffer from mental health issues. Pakistan spends an average of four per cent of GDP on health, and less than half a per cent on mental health care, with one psychiatrist for every 500,000 people.[20] Belief in possession by evil spirits and other stigma are major barriers to people seeking mental health services, as is the disproportionate lack of services in rural areas compared to urban areas.[21]
[20] ‘Integration of Mental Health into Primary Healthcare: A challenge for primary care physicians’, Tayyaba Rehman, Tahira Amjad, Fareed Aslam Minhas, Javeria Kamran, Noor Shah, Pakistan Armed Forces Medical Journal, vol.69 (Supplement 2), 17 May 2019, pp.S286–S287.
[21] ‘Pathways to care for people with mental health problems coming to a tertiary care hospital in Islamabad’, Faisal Rashid Khan, Mahpara Mazhar, Maryan Ali and Faiza Bashir, ISRA Medical Journal, vol.11, January–February 2019, pp.27-28; ‘Integration of Mental Health into Primary Healthcare: A challenge for primary care physicians’, Tayyaba Rehman, Tahira Amjad, Fareed Aslam Minhas, Javeria Kamran, Noor Shah, Pakistan Armed Forces Medical Journal, vol. 69 (Supplement 2), 17 May 2019, pp.S286-S287. For more information on mental health issues in Pakistan, see ‘Mental health crisis’, Dawn, 6 January 2019; ‘Why Pakistan's poor seek mental health cure at shrine’, BBC News, 29 September 2016; ‘The state of mental health care in Pakistan’, The Lancet Psychiatry, vol.5, June 2018, p.471.

160. The Tribunal addressed the applicant’s mental health claims. It noted the reports provided to the Tribunal from his Psychiatrist that he has been seeing in Australia.
161. The Tribunal also noted copies of reports from the applicant’s Psychiatrist in Pakistan. When asked about this, the applicant stated that his Psychiatrist presented prescribed medication to help him. Noting that the Psychiatrist’s report did not appear to reference the applicant’s specific claims other than a traumatic event, the applicant replied that he didn’t trust the Psychiatrist sufficiently to tell him everything.
162. But the Tribunal did note that it was possible for the applicant to obtain assistance from a psychiatrist, as he had done previously.
163. The Tribunal accepts that although the health care system is not at a comparable level in Pakistan as it is in Australia, care is available both privately and via the public health system in Pakistan. Consequently, the Australian Government’s removal of the applicant will not arbitrarily deprive him of his life…it will deprive him of his present access to medical treatment.
164. Accordingly, the Tribunal finds that there is no real risk that the applicant would suffer serious or significant harm as a result of his current medical condition in the event that he returns to Pakistan.
Treatment of returnees and conditions for returnees
165. Whilst not specifically claimed, the Tribunal has also considered a potential claim in relation to his returning to Pakistan, and as a failed asylum seeker, and as one who may be considered to be westernised.
166. The latest DFAT country information report on Pakistan[22] reports the following concerning the treatment of returnees and conditions for returnees, relevant to the applicant’s claims:
Entry and exit procedures
5.25 Under Article 2 of the Exit from Pakistan (Control) Ordinance (1981), the Pakistani government can prevent any person, including those with valid travel documentation, from leaving the country. Pakistani citizens require a valid passport to enter or exit Pakistan under Articles 3 and 4 of the Passports Act (1974). Under Articles 4 and 6, attempting to enter or depart Pakistan without valid documentation or on fraudulent documentation is punishable with up to three years’ imprisonment, a fine, or both. Those suspected of human trafficking or people smuggling may be prosecuted under the Prevention of Trafficking in Persons Act (2018) and/or the Prevention of Smuggling of Migrants Acts (2018).
5.26 The government maintains an exit control list (ECL) and can prevent those on it from leaving the country, including those wanted for criminal offences. The ECL is highly politicised; sitting governments have frequently placed political rivals on the list. It may also be possible to have someone placed on the ECL through bribery. It is difficult but not impossible for people to leave the country illegally after being placed on the ECL. In September 2019, Pakistani human rights activist Gullalai Ismael fled to the US after being placed on the ECL for ‘anti-state activities’ and ‘inciting violence’. She would not reveal how she was able to leave Pakistan but told the New York Times she did not fly out of an airport.
Conditions for returnees
5.28 Returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistani law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally.
5.29 People suspected of or charged with criminal offences in Pakistan are likely to face questioning on return, irrespective of whether they departed legally or not. DFAT understands that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people are usually released within a few days after being bailed out by their families or having paid a fine, although the law provides for prison sentences. Those wanted for a crime in Pakistan or who have committed a serious offence abroad may be arrested and held on remand or required to report regularly to police.
5.30 Returnees are responsible for arranging their own onward transportation from their point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the IOM and/or domestic NGOs. Returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration tend to face a higher risk of financial hardship and familial shame. A small percentage of returnees do not reintegrate and go abroad again to seek asylum.
5.31 DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad.
[22] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at pp 43-44.

167. The Tribunal noted that the applicant had left Pakistan on a valid passport with a valid visa. He had not departed illegally.
168. The Tribunal noted that many Pakistan nationals studying abroad, including within Australia, return to Pakistan without incident. The Tribunal noted that the applicant’s own witnesses regularly returned to Pakistan to visit family members.
169. The Tribunal had regard to the following Country Information which states:[23]
Western influence is pervasive in many parts of Pakistan, particularly in large urban centres, Western films and music are widely available (though in many cases subject to censorship) and Western-branded chains operate throughout Pakistan. Both Urdu and English are recognised as official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite.
Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West.
[23]DFAT (2016) Country Information Report: Pakistan. 15 January 2016 at [3.62].

170. And then the Tribunal reiterated the country information contained in the latest DFAT Report that stated that:
5.31 DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.

171. Accordingly, given the Tribunal’s findings above and that some of the applicant’s extended family members have returned to Pakistan and that the applicant has immediate family still residing in Pakistan, the Tribunal finds that there is less than a real chance of serious harm to the applicant now or in the reasonably foreseeable future if the applicant were to return to Pakistan, on account of his belonging to the particular social group of returnees, failed asylum seekers or westernised returnees.
Cumulative Claims
172. As discussed with the applicant, the Tribunal would consider the applicant’s claims both individually and cumulatively, and all the evidence and submissions, as well as consider the personal circumstances of the applicant.
173. The Representative reiterated that there could be no doubt that the applicant would be targeted by the TTP, notwithstanding that he was young, because he would be identified as a future leader. Within the party and particularly the PSF, the applicant was identified as being trustworthy, as being educated and as being a Teacher and he would be identified as a person whom people would follow. The Representative alluded to the numerous sources of Country Information he had provided to the Tribunal which supported the contention that people with political opinions contrary to that of the government and the TTP will be targeted.
174. The Representative stated that if the applicant returned to Pakistan, he would continue to have a profile as both an active member and potential leader within the ANP, just as his family members have continued to remain active in his absence.
175. He stated that the applicant had continued his support and membership of the ANP whilst living in Australia and was an active member of the Australian branch of the party.
176. The attention of the Tribunal was brought to Country Information tendered by the representative that stated that many leaders of the student wing of the ANP, the PSF, of which the applicant had been a [Position 1], had been shot and killed. He cited an incident in November 2021 when a student activist was killed and seven others injured when fired upon in Karachi.
177. The representative again referenced the Country Information he had provided in relation to the discrimination against Pashtuns. He stated that the regular stereotyping of Pashtuns having an association with the TTP led to ethnic profiling. Pashtuns then faced problems seeking to use their CNIC’s to move within Pakistan or to relocate, as the CNIC’s were blocked.
178. The representative accepted the information contained in the 2019 DFAT Report but wanted to emphasise that even though Pashtuns generally face a low risk of discrimination and a low risk of violence to all other ethnic groups, that risk is heightened if they come to the attention of authorities for any reason.
179. The contention is that with the active profiling taking place at present of Pashtuns, it is inevitable that the applicant would be taken aside for questioning, and when that happened, he would be identified as a member of the ANP and former leader of the PSF. The Tribunal was invited to note the latest DFAT Report cited above, that noted specifically that Pashtuns involved with the ANP face “specific, heightened risks” of violence.
180. The Tribunal was reminded of the applicant’s continued involvement with the ANP whilst here in Australia and of his leadership ambitions within the party were he to return to Pakistan.
181. The representative reiterated his submission that effective protection is not available to the applicant in Pakistan. He states that whilst the Pakistani authorities maintain contacts with the Sunni extremists, the State can not be trusted to provide security for its people. He pointed to Country Information in his submission that the resurgence of Sunni Islamic extremists inside Pakistan is being tolerated by the state organs in Pakistan. He also pointed to terrorists seemingly being able to escape from prisons in Karachi.
State protection
182. In considering the applicant’s claims in relation to State Protection, the Tribunal considered Country Information.
183. The latest DFAT country information report on Pakistan[24] reports the following concerning state protection, relevant to the applicant’s claims:
[24] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at pp 40-41.
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.
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.
Military and intelligence services
5.3 The Pakistani military is well-trained, well-equipped and politically powerful. According to the 2021 Global Fire Power Index, the nuclear-armed Pakistan Armed Forces is the 10th most powerful military in the world. The defence budget is over USD 12 billion. Not including paramilitaries, the military commands a force of 1.2 million personnel, 654,000 on active service and 550,000 reserves. Pakistan is also one of the world’s largest contributors to UN peacekeeping missions. Pakistan’s military is all-volunteer, and there is no compulsory military service.
5.4 The military is widely regarded as the most capable institution in Pakistan. It holds considerable influence over domestic politics and dominates foreign and security policy. The military seized control of the government through coups d’etat in 1958, 1977 and 1999. Military personnel are well-paid and accorded high social status. Pakistanis generally regard the military as less corrupt than other institutions. The military employs minorities, including Pashtuns and Hazaras, although minority groups say there are unofficial ceilings on their promotion to higher ranks (for example, Shi’a, Hindus). There is a relatively small number of women in the military, all in non-combat roles. There are very few women of senior rank.
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.
5.6 The security services (including the ISI, Intelligence Bureau and other agencies) operate a highly efficient surveillance state, including wire taps, spy software, and the monitoring of internet service providers (ISPs), which the government allegedly deploys against suspected terrorists, journalists, political opponents and others.
5.7 From January 2015 to March 2019, special laws (which have since lapsed) empowered military courts to conduct trials of civilians suspected of involvement in terrorism for a wide range of offences. These courts have been criticised by rights groups for failing to afford defendants due process and fair trials.
Police and paramilitary
5.8 Federal and provincial police services have primary responsibility for law enforcement, supported by other law enforcement agencies, including the IB, FIA, and National Counter Terrorism Authority (NACTA). Provincial and autonomous regional authorities are directly responsible for law and order, and the federal government has jurisdiction over police in Islamabad and security forces in the former FATA.
5.9 According to the International Crisis Group, the number of police in Pakistan increased from 220,000 to 430,000 over the decade to 2015. In 2018, the total police force was estimated at 530,000. Police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. The public perception of police is generally poor, although it has reportedly improved in recent years.
5.10 Police work in Pakistan is poorly paid and dangerous. Individual police officers often augment their salaries with bribes. Terrorist attacks by militant groups frequently target police. A total of 28 police were killed and 26 injured in terrorist attacks and sectarian violence in 2020. There are no centralised or national law enforcement databases or criminal records, which makes it hard to track or locate offenders. Provincial police forces operate independently, with no nationwide coordination or training standards.
5.11 In addition to provincial police forces, several paramilitary forces operate in Pakistan. These include the Pakistan Rangers, which mainly operate in Punjab and Sindh provinces. The Rangers are notionally under the authority of the Ministry of the Interior but are headed by an army general and are, in practice, under the control of the military. The Rangers undertake border security operations along the Indian border, as well as internal law-and-order operations. The Frontier Corps perform a similar role to the Rangers in western border regions, including Balochistan, Khyber Pakhtunkhwa and the former FATA.
5.12 The UN, Human Rights Watch and Amnesty International have reported widespread human rights violations, including torture and other ill-treatment, arbitrary detention, extrajudicial executions and enforced disappearances by the police, Rangers and Frontier Corps.

184. In addition to the above information, the Tribunal noted the many articles submitted by the applicant addressing the issue of the apparent acceptance within Pakistan by its authorities of the regrouping and resurgence of militant groups.
Internal Relocation
185. The Tribunal noted the claim from the applicant that he had moved himself to Islamabad to live with relatives before coming to Australia. He claimed that he did not feel safe and that his family urged him to move away.
186. His uncle, as a witness, confirmed that to be the case.
187. The representative made extensive submissions that none of the capital cities within Pakistan could be considered to be safe locations for the applicant. He stated that the Islamic terrorist organisations continue to build their network, identifying in particular Islamabad. He cited that the National Counter Terrorism Authority had on various occasions, issued threat alerts for Peshawar and Quetta, and more recently Karachi and Islamabad based on TTP threats.
188. The latest DFAT country information report on Pakistan[25] reports the following concerning internal relocation, relevant to the applicant’s claims:
5.23 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate. For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors. Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later. DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country.

[25] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ (25 January 2022) at p 43.

189. In relation to the issue of the applicant’s capacity to relocate within Pakistan, the Representative submitted that it was impossible for Pashtuns to relocate from city to city. He stated that very often Pashtuns are considered to be terrorists.
190. Country information cited above also indicated that quite often the CNICs of Pashtuns were blocked, so as to prevent internal migration.
191. The Tribunal was not persuaded that the applicant’s individual claims gave rise to claims of persecution, or that such claims, in the face of country information which the Tribunal accepted, were well-founded.
192. It was not satisfied that being a low-level member of the ANP, particularly one for such a short period of time, established a well-founded fear of serious harm now or in the reasonably foreseeable future.
193. The Tribunal was not satisfied that being a Pashtun, given that there are over 20-25 million in Pakistan who are represented at all levels of society and with enclaves in all of the major cities, established a well-founded fear of serious harm now or in the reasonably foreseeable future.
194. Further, the Tribunal was not satisfied that the applicant had a well-founded fear of serious harm now or in the reasonably foreseeable future by virtue of imputed political opinion based on his having been westernised, or his membership of a particular social group of returnees, or returnees who have been westernised and/or who are failed asylum seekers.
195. And the Tribunal did not accept that there was a real risk that the applicant would suffer serious or significant harm as a result of his current medical condition in the event that he returns to Pakistan now or in the reasonably foreseeable future.
196. Whilst the Tribunal has expressed some concerns about some parts of the applicant’s evidence, in considering the applicant’s claims cumulatively, and all of the evidence that it has accepted, and all of the personal circumstances of the applicant, and in the light of considerable Country Information (contained in both the most recent DFAT Report and as submitted to it), the Tribunal, in giving the applicant the benefit of any doubts it has, does accept that as a Pashtun, he is likely to be ethnically profiled, especially if he seeks to move between cities, that there is a real risk that he might be intercepted and interrogated, and by virtue of his active membership of the ANP, but particularly his past leadership of the PSF and the recognition of his leadership potential, which is inconsistent with traditional Pashtun support for the TTP, and as a consequence, he will face a real risk of serious harm.
197. The Tribunal considered at length the prospects of the applicant relocating within Pakistan, and his evidence of his previous attempt to do so.
198. Having carefully considered the evidence submitted by the Representative, and relevant country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of his political opinion and race, extends to the whole of Pakistan as required by s.5J(1)(c) of the Act.
199. The Tribunal has duly considered whether effective protection measures as defined in s.5LA of the Act are available to the applicant. Having regard to the DFAT country information and other country information referenced above, concerning the effectiveness of the Pakistani Police Force, and in particular the links between elements of it and Islamic fundamentalist groups, the Tribunal is not satisfied that the applicant, by virtue of his personal circumstances, can access the protection of the Pakistani State, nor is there a reasonably effective police force to assist him, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution he faces on account of his political views and race from Islamic fundamentalists. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.
200. Finally, as the persecution feared relates to his political views, which the Tribunal is satisfied, (given his family’s long political involvement, and his continued engagement whilst being in Australia) there are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.
201. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is satisfied that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of his political opinion and race. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that he will suffer significant harm?
202. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
Conclusion: Refugee Criterion
203. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reasons of his political opinion and race. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
204. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
Overall Conclusion
205. 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
206. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Michael Hawkins AM
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.
…

[2022] AATA 1083

21 February 2022

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