1905564 (Refugee) - [2024] AATA 1800

1905564 (Refugee) [2024] AATA 1800 (19 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Isabel Owen
CASE NUMBER: 1905564

COUNTRY OF REFERENCE: Pakistan
MEMBER:Justin Meyer
DATE:19 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 19 March 2024 at 3:58pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Awami National Party member – Village Defence Committee member – opposition to the Taliban – race – Pashtun – kidnapping – fear of killing – physical assault – returnee from a Western country – mental health issues – effective protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 6 October 2018. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a refugee as defined by s5H(1) of the Act and thus not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. He was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there was a real risk the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
The applicant’s identity is established as [an age]-year-old male, as evidenced by a Pakistani passport, which was before the Department and the Tribunal confirming identity and nationality.
Mental health
Having noted the applicant’s claims of mental trauma over years, The Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information.
Claims and evidence
In his application to the department, the applicant claimed as follows:
·He was born in [Village 1], Swat, Khyber Pakhtunkhwa (KP) province, Pakistan
·He is a Pashtun and a Sunni Muslim, married with [number] children
·His life was in danger due to his membership of the Awami National Party (ANP) and a Village Defence Committee (VDC) so he deserted his ship in [Town 1], Australia
·After Swat was freed form Taliban rule in 2009, “Peace Committees” or “Lashkar Aman” were formed in every village. These later became Village Defence Committees (VDC)
·The military demanded that at least one adult male from each household should join a VDC and the applicant joined in 2009
·As a VDC member, he had to cooperate fully with the army personnel, including informing the military about Taliban locations
·The VDC were targeted by the Taliban and many were killed or seriously injured
·He was threatened for the first time in February 2013
·A warning letter was thrown outside his home, telling him to cease work with the VDC and the ANP
·He was scared but because of the army presence and his work as a seaman he ignored the warning
·After returning from a shipping contract in February 2014, he and his family went to live with his relatives in [Town 2]. He began a new shipping contract in October 2014 and his family then returned to [Village 1]
·He was threatened again by the Taliban on the telephone but again ignored it
·In May 2018 the applicant was attacked by the Taliban while returning home from the local mosque after evening prayers. Unknown assailants fired shots at him and he fled form the scene
·A few days after the attack he travelled to Karachi and awaited a new shipping contract
·In June 2018 he set sail and after the ship arrived in [Town 1] he deserted the ship
·If he returns to Pakistan he’ll be seriously harmed or killed
·There is no state protection or place to relocate as the Taliban have networks everywhere
·With a family to support it is not practical or reasonable for him to relocate to major cities such as Lahore or Islamabad
The applicant attended a departmental interview on 18 January 2019. He reiterated his claims and added the following further information:
·He has travelled to [specified countries] as a crew member
·He deserted his ship this time, despite visiting Australia previously, because he had the opportunity
·[Town 2] is about three kilometres away from [Village 1]
·His family are currently residing in [Village 1] and [Town 2]
·He has no relatives in Sindh or Punjab province
·He became a ship crew member in [specified year]
·As part of the VDC he participated in night watches and identified Taliban houses. He was not armed during this time.
·When he was shot at in May 2018 it was dark and he couldn’t see how many men there were. They fired three shots and he ran away.
·In 2018 he had spent 11 months in the village ([Village 1]). He stayed mostly at home.
·He joined the ANP in 2008.
·He attended ANP gatherings and meetings and put up banners for them. The last meeting he attended was in 2018.
·None of his family have been harmed by the Taliban.
·It is not safe to relocate – the Taliban have networks everywhere.
·There are language problems for Pashtuns if they relocate to Punjab province. Also he would need to find two sponsors to even rent a property. Those Pashtuns resident in Punjab province relocated in 2008-09, but now it’s very difficult to do so.
·(VDC Vice president) [Leader A’s] brother was killed in Karachi.
·The wage dispute with [Employer 1] was a pretext to get off the ship – he faces danger in Pakistan.
·He has a limited education and would have no chance of finding employment should he relocate.
·His NIC identifies him as a Pashtun and Pashtuns are viewed as terrorists by Punjabis.
In support of his claim, the applicant provided the following evidence to the department:
·Original and scanned copy of the applicant’s Security pass – VDC
·Original and scanned copy of the applicant’s ANP membership card
·Original and scanned copy of the applicant’s ANP student membership card
·Original and scanned copy of the applicant’s IDP Registration Form
·Original and scanned copies of letters of reference from the ANP and VDC
The applicant’s written submission to the Tribunal of 21 November 2023 made the following points:
·     He fears harm from the Taliban on return to Pakistan due to his membership of the Awami National Party and his role as a Village Defence Committee member. What follows is a brief summary of his background.
·     He was born in the village of [Village 1] in Swat Valley. He is a Sunni Muslim and of Pashtun ethnicity. His father passed away in 1999, but the remainder of his immediate family, including his mother and siblings, remain in [Village 1].
·     His wife, [named] and their [number] children, [named] also reside in Swat, but in a nearby village, [Town 2 variant], the home of his wife’s family. He attended primary school in Swat but did not complete high school. He followed in his father’s footsteps and worked predominantly as a seafarer from [year].
[Agency 1]
·     In the 1990s he was a member of an NGO called [Agency 1]; a local group of people who did social and education work. [Agency 1] built schools and opened a dispensary as there was a time when there was a shortage of wheat flour.
·     Awami National Party (ANP)
·     From a young age, he was exposed to the workings of the Awami National Party (ANP). His father was an active member of the ANP and he recalls his father’s efforts campaigning for the party and encouraging other locals in the Swat Valley to follow the ANP’s vision.
·     Following in his father’s footsteps, he became actively involved in the ANP. He recalls attending party gatherings, especially in the lead up to elections, and putting up posters for [Representative A], who was a local council representative, and [Representative B] who was a local member of parliament. His involvement with the ANP has fostered his ideals of non-violence, democracy and the promotion of education and welfare. It was also important to him to support Pashtun’s and to defend his people from the Taliban.
·     He continued his role in the party over many years. Due to his limited education, he did not hold a senior role but actively contributed to the party through helping out at events, helping out with contractors, getting food for party events, as well as planning and coordinating events.
·     He also ran a local [business]. [Details deleted.] This business operated through word of mouth, and, therefore, the Taliban were aware of his actions.
·     He joined his local Village Defence Committee (‘peace committee’ or ‘Aman Lashkar’) in around 2009. He decided to join as the nominated representative from his family. He joined rather than his brother because his brother was less involved in the community and social activities, and so that his brother could remain with the family to protect them.
·     He believes in the importance of protecting his community. He undertook regular night patrols and assisted the army to identify Taliban members.
·     He, and those close to him have received threats or actual harm from the Taliban. In brief these are:
·     A threat letter received from the Taliban in 2008 which said that if the applicant did not stop, harm would come to him and his family. He assumed that this letter was to do with his connection with the ANP and [Agency 1]. It may have also had something to do with [his business].
·     In around 2008, his brother-in-law, [Brother-in-law A] was kidnapped and beaten by the Taliban.
·     In February 2023, the applicant received a threatening phone call to his mobile phone. Among other things, the caller threatened; the army is not going to be here forever to protect you from us and you better stop what you are doing. When we come back it won’t be good for you.
·     In May 2018, following evening prayers, he was walking when he heard gun shots from behind. Three shots were fired at him.
·     In between deployments, he returned to Swat and undertook work with the VDC. While in Swat, he kept a low profile and moved between his home village of [Village 1] and his in-laws village of [Town 2], in an attempt to keep himself safe. His reasons for returning to Swat between deployments are discussed in detail below.
·     Following the attack in 2018, he made the difficult decision to try to escape Pakistan and seek safety by fleeing his ship in [Town 1]. The applicant arrived in Australia [in] September 2018 and has not departed since. On 6 October 2018, he lodged this Protection (subclass 866) visa application with the Department of Home Affairs. This was refused on 1 March 2019.
·     Being faced with the fear of being forced to return, along with ongoing separation from his family, his mental health is suffering. He states:
For many months I have been getting treatment for my mental health. I am still taking medication as prescribed to me by my GP. I have been diagnosed with depression and this is what the medication is treating. I stopped seeing my psychologist for a while because of COVID and everything, I was stressed and it was too much to deal with.
I asked my doctor to refer me to the same psychologist again and I have been able to start seeing him again. Even while I wasn’t regularly meeting with my psychologist, I would usually see my GP every few weeks; once or twice a month and would also talk about my mental health with him.
At the moment, my mental health is not very good. I keep forgetting things. I will have to do something and then I will go and I will forgot, which is why I decided to start seeing my psychologist again.
He is currently receiving treatment from consultant psychiatrist, [Psychiatrist A]. A report of [Psychiatrist A] was forwarded.
…
There were a few reasons why he did not make the decision to flee Pakistan earlier, despite the ever-present and growing risk to his safety as he continued to be engaged with the ANP and VDC.
First, it was an incredibly hard decision to leave his family. In Pashtun culture, the father/husband plays an important role as the head of the family. His responsibility to his family and the prospect of leaving them at risk of harm weighed heavily on his mind. He was concerned that he would be caught departing the ship and refouled:
It was not easy for him to abandon his wife, children and extended family to face danger, not knowing if he would see them again. He also feared jumping ship and thought that if he was caught, he might be sent back to Pakistan and have his employment terminated.
Further, while he had been afraid and received threats, he had remained optimistic and hoped that the army would be able to overcome the Taliban and he could safely remain in Swat with his family. Swat is his home and his family are deeply important to him. When the risks increased, he felt he had no other choice. He had a duty to continue his work with the ANP and VDC – he wanted his village to be safe and to ensure that the Taliban did not come back. In around late 2008 or early 2009, his brother-in-law, [Brother-in-law A], was beaten very badly by the Taliban. He was hospitalised for a couple a of days. He said something about a Talib and was badly injured. It is memories like this of the Taliban’s brutality that motivated him to participate in anti-Taliban activities and he would continue to participate in anti-Taliban activities on return to Pakistan.
When the army came to the area, they would ask the local people to help them identify Taliban members and sympathisers and would compile lists of wanted people. They would then use the local intelligence, being people like him to help them identify the houses of the people on their wanted list. They would travel with the army to the outside of the homes of people suspected to be Taliban or their sympathises. He was nervous about doing this, but because of what they went through at the hands of the Taliban, but he had the courage to do what was necessary to protect the community.
He was very cautious on his return trips to Swat. He kept a low profile and moved between his home village of [Village 1] and his in-laws’ village of [Town 2], in an attempt to keep himself safe.
He was actively involved in the ANP and, in particular, provided physical assistance to set up events, assist with the organisation and coordination of events, attend party gatherings, recruit new members, and assist with election campaigns. While he did not hold a high level position within the ANP, due to his limited education, but was actively involved in the ANP for many years. In his role as a VDC member, he was assisted the army by identifying houses of people suspected to be Taliban members or sympathisers and participate in regular night watches.

He has provided a detailed description of his membership of the ANP and VDC and the process of obtaining his membership cards.
He did not provide a specific date of the regarding the 2018 attack and did not provide a ‘first incident report’.
He has difficulties recalling specific dates. His first threat letter in 2008 was not included in his Protection visa application, but was not sure why this is because he mentioned it to his migration agent at the time and they filled in the form for him. There are some inconsistencies in the dates provided for each of the attacks throughout the process because he struggles to remember specific details, especially when it relates to traumatic parts of his life. He has also been required to give this evidence many times over many years and finds that he has difficulty remembering exactly. He is not an educated man and is not used to thinking of his life in terms of dates. His lawyer has insisted that he try to place particular events in time.
He also describes in detail his immediate attempt to seek assistance from the VDC and army following the attack: He ran inside the house closest to him and telephoned a member of the VDC named [Mr A]. He then contacted other VDC members and the Army who came to his location. The army went through the area to check for the Taliban, they went through houses in the area to see if the attackers were hiding but they were not able to find anyone. He was terrified after the event.
The mere fact that a first incident report has not been provided is not evidence that the 2018 attack did not occur.
….
There is significant overlap between the harm feared by on account of his membership of various ‘particular social groups’ in Swat Valley and based on his (actual and imputed) political opinion. Accordingly, country information substantiating the threats on both of these Convention grounds is presented jointly below.
He fears harm in Swat on account of his membership of several ‘particular social groups,’ characterised as follows:
·ANP supporters;
·Former/current members of a Village Defence Committee;
·Known activists against the Taliban;
·Secular/liberal residents of Swat Valley; and
·Returnees from a Western country
….
Actual/Imputed Political Opinion
His past activities clearly bears out his political opinions and commitments. He has described his long-term affiliation with the ANP and his own activities in support of the ANP, as well as his commitment to rid Swat Valley of the Taliban, through support of the Pakistani Army and his membership of his local Village Defence Committee. He may also be imputed with a pro-government and pro-military stance by virtue of his status as a returnee from the West.
He is a particularly vulnerable individual. He is currently suffering severe mental health conditions and is presently reliant on support from his general practitioner and psychiatrist for treatment and support.
His psychiatrist, [Psychiatrist A], states that his presentation is consistent with that of major depressive disorder with psychotic features and obsessive compulsive disorder. He believes the applicant requires ongoing psychiatric treatments in the form of medications and mental state monitoring.
He has struggled to maintain employment in Australia even in a low-skilled factory worker position. He is doing a simple job so he can manage it with his mental health conditions. He does not think he would be able to find a job like this in Pakistan. He does not have any skills or proper education for a job there and in Pakistan there are few job opportunities. It is not easy to find a job in a factory. It would be hard and a struggle to find a job and support his family and also be safe. He has [number] children and a wife to support which is very hard to do on a low wage in Pakistan.
If his psychological conditions were to worsen, or remain the same, on return to Pakistan, he could not reasonably be expected to find gainful work or support himself, particularly considering the economic circumstances in Pakistan, as well as discrimination against Pashtuns.
Evidence in the hearing and findings
The applicant was broadly consistent in the hearing.
He gave an overall credible account of being a seaman between [year] and 2018 and jumping ship in [Town 1].
He went into a level of detail that supported his claim that he and his family are long time ANP supporters and members and, and that he helped with banners, posters and preparing meetings and rallies. I accept that he was an involved, but not senior activist. He gave a coherent account of how many seats the party had won in national and regional elections when he lived in Pakistan. He could describe the Pashtun rights policies of the party.
The applicant described photographs of his son with party figures which were submitted to the Tribunal. He watches videos and posts occasionally online about politics. I am prepared to accept that if he returned to Pakistan his involvement in politics would continue.
[Leader A] and [Mr B’s] statements vouch for the applicant’s activities in the village defence committee and the ANP. I did not take up the offer of telephoning those potential witnesses as it is not in dispute that he was so involved.
The applicant described how the incidents of terrorism, particularly TPP-caused violence against Pashtuns had increased in recent years.
I accept from the applicant’s evidence that there were Taliban sympathisers in his village or villages. I accept that he would do night watch for the local mosque to protect it from attack. He felt that these perpetrators were still his enemies.
The Tribunal inquired as to the details of the first threat he received. He said it was in 2008 where he received a letter which said to keep away from his activities.
Being in the maritime service was not a decision he took for safety but instead was a family tradition – his father had been a seafarer. The option is no longer there for him if he returned as he jumped ship and shipping lines would bar his employment.
I asked about where he might return to if he went back to Pakistan. He said he had nowhere else except Swat. He cannot live elsewhere for family reasons. His family could not move with him outside Khyber Pakhtunkhwa, because of prejudice against Pashtuns. He can only speak some Urdu himself. His wife and children cannot speak it. He believed that no one would rent him a property as he is a Pashto speaker. He spoke of a police station attack in Karachi, and Peshawar attacks on Pashtuns this month. There was a resurgence of Taliban power since its reinstatement to power in neighbouring Afghanistan.
He recalled the most recent threat that he had suffered which was in 2018. He had performed prayer in the local mosque, and it was getting darker. Upon crossing the road to the side of a house he heard three shot, which he said were aimed at him. He ran away – a distance of 100 metres and went into a nearby house. The owner of the house recognised him and asked what had happened. They gave him water and called a fellow peace committee member who came. The military arrived and said they could not give him security 24/7. They conducted a search of the area and gave him a telephone number to call in case of more problems.
He spent another three weeks at home but decided that he needed to depart Pakistan permanently. He went to Karachi for his shipping assignment. Normally he would have remained home for Eid but he sacrificed this and left the country. He told his wife he was not coming back and took her to her father’s house. He stayed briefly at a seaman’s hostel in Karachi and then was flown to a ship and made his way eventually to [Town 1] port. Here he left the ship and handed himself to authorities.
The applicant sends money and communicates with family, although he is careful. People ask after him but not in an obvious way. The house is now heavily walled and covered with barbed wire and security cameras. He sent a video showing this.
Previously DFAT described the risk facing the ANP supporters at the lower end of the scale. However in 2019 DFAT assessed that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship. Subsequent DFAT country reports, including most recent the 2022 Pakistan report[1], maintains such a risk assessment:
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 prominentANP 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 (see Armed Groups).
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.
[1] DFAT Country Information Report, Pakistan 25 January 2022
As an ANP supporter the applicant faces a moderate risk of terrorist-related violence because of the ANP’s past opposition to the TTP. The applicant is a committed supporter of the ANP, who has shared his views in Pakistan, and he is likely to if he returned, in the Tribunal’s view. His expression of views may have been limited in a smaller geographic area but people’s memories may well linger. He has a profile of some kind, although it is not a high profile. Yet I note DFAT’s remarks in its 2019 country information that restrictions on media reporting in the former FATA and Khyber Pakhtunkhwa may mean some incidents -particularly those involving low-level officials - are not reported. He could well become a victim in such an instance.
I find that the applicant has a well-founded fear of persecution where he fears being persecuted for reasons of membership of a particular social group and political opinion.
I find that there is a real chance that, if he returned to his receiving country, he would be persecuted. The real chance of persecution relates to all areas of a receiving country. The country information does not confine the risk facing ANP supporters to particular areas of Pakistan. Although the risk may be higher in areas where the TPP is more active such as Swat, or the Khyber Pakhtunkhwa (KP) province more generally, I do not accept that relocation is a viable option for the applicant. I note for example that the applicant has family members in Pakistan. Because of traditional family and extended family support systems, living apart from one’s family and wider relatives is challenging. I am also concerned about the degree to which the risk could be reduced living in other areas of Pakistan. I am not prepared to make an assumption that TPP, its affiliates, or other militants would be unable to identify the applicant or his family as being Pashtun and or ANP supporters just because he was living in a different part of Pakistan to his home district or province. In event his language skills outside of Pashto are limited and his family’s are non-existent.
Having gauged the applicant’s level of interest in politics, the strength of his beliefs, and the ease of identifying someone as a Pashtun in Pakistan, along with his contact with his family and social grouping I find that he would not be able to modify his behaviour in such a way to mean that he no longer has a real chance of being persecuted.
There is a wide range of country information to support the dangers he faces at an ANP supporter, much of which was submitted by the applicant. Examples include:
30 July 2023, The New York Times reported on a mass-casualty event in KPK
An explosion at a political rally on Sunday in northwest Pakistan killed at least 43 people and wounded 200 more, officials said, the latest sign of the deteriorating security situation in the country, where some militant groups have become more active over the past two years since finding a haven in neighboring Afghanistan under the Taliban administration there. […]
A Surge in Militancy
The blast was the latest attack to rattle Pakistan, where militant groups — including the Pakistani Taliban, known as Tehreek-e-Taliban Pakistan, or T.T.P., and ISIS-K — have become more active in recent years. This year, the T.T.P. has carried out several major attacks that have jolted Pakistanis’ already tenuous sense of security. In January, T.T.P. militants attacked a mosque in Peshawar, killing more than 100 people, and one month later they waged an hourslong assault on the police headquarters of Pakistan’s largest city, Karachi.[2]
[2] Christina Goldbaum and Zia ur-Rehman, ‘At Least 43 Killed in Blast at Political Rally in Pakistan’, The New York Times (online, 30 July 2023) <
The South Asia Terrorism portal makes these observations:
An October 12, 2022, report suggested that the TTP had re-emerged violently in the restive areas of Swat, as militants detained Police personnel and an Army officer after enforcement officials launched an operation to capture TTP militants. Earlier, an August 12, 2022, report noted that TTP militants had established a check-post at Balasoor Top, besides roaming about freely in other areas of the Matta tehsil of Swat. The areas included Bar Shor, Koz Shor, Namal, Gat Peuchar and among others. Significantly, the Geo News correspondent in Swat, Mehboob Ali, claimed that at least 200-250 TTP terrorists were present and operating in the area. …
Meanwhile, a report presented to Prime Minister Shehbaz Sharif during the national security review meeting in December 2022, warned that, because of an acute shortage of staff and resources, the KP CTD would not be able to prevent or stop terrorist attacks in the province, and lacked the capacity to fight terrorism. …
As ‘official’ talks between the TTP and the Government collapsed with the TTPs declaration of an end to the ceasefire on November 28, 2022, an escalation of violence within KP, and the possibilities of its fanning out into other areas of Pakistan, have increased dramatically. The risk of Pakistan’s tribal areas once again becoming the “most dangerous place on earth” is real.[3]
[3] >
In its own research the Tribunal identifies sharp increase in terrorist attacks in recent years overall, as documents by the Pakistan Institute of Peace Studies[4]:
The perils of Taliban-led regime in Kabul have become unmistakably clear for Pakistan as the country has witnessed an unbelievable 51 per cent increase in the number of terrorist attacks in a single year since the militant group seized power in August last year.
As many 433 people were killed and 719 wounded in 250 terrorist attacks in Pakistan between 15 August 2021 and 14 August 2022, according to details. In the corresponding year between15 August 2020 and 14 August 2021, the country witnessed 165 attacks that killed 294 people and injured 598 others.
…
The issue underlines that there is a wave of fear and panic among residents of Khyber Pakhtunkhwa (KP) over the reported return of TTP militants from Afghanistan in recent months.
The publication quoting the United Nations High Commissioner for Refugees (UNHCR) says that more than 300,000 Afghans have fled to Pakistan since the Taliban takeover. The figure confronts Pakistani authorities’ claim that about 60,000 to 70,000 Afghans have entered Pakistan since then.
[4] Pakistan witnesses sharp increase in terrorist attacks since Taliban takeover, By PIPS, Published On Oct 19, 2022 >
Events as recent as March 2024 indicated a further upswing in Taliban linked violence- there was an attack on Pakistan army post near the Afghan border which killed seven people, according to the Pakistan military, as reported by Al Jazeera. This occurred in the North Waziristan district, which is a similar distance from Peshawar, as the distance is between Swat valley and Peshawar. [5]
[5] >
I am satisfied that the incidents that he has described are well-supported by documentary evidence such as police reports. I have questioned the applicant in detail about various incidents and have no reason to believe that they did not occur or are exaggerated.
There are cumulative additions to the claims through the membership of a peace committee. DFAT reports:
3.83
In some conflict-affected areas, including Khyber Pakhtunkhwa and Balochistan, local communities or the Pakistani government have empowered local councils called ‘peace committees’ (aman jirga) to help oppose militant groups such as the TTP. According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees ‘are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out-of-court arbitration’. Villages may also form peace committees of their own accord. Despite their name, peace committees take many guises, ranging from ‘keeping an eye on’ terrorist activities to actual engagement against terrorist groups as armed tribal militias.
3.84
Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP). Peace committees have themselves sometimes been accused of violence or human rights abuses (see Judiciary, Cruel, Inhuman or Degrading Treatment).
3.85
DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.
I am accepting of his claims that he was in peace committee and may do so again and cumulatively this adds to his well-founded fear of persecution.
Turning now to Pashtuns I observe that they comprise an estimated 15.4 per cent of the population of Pakistan, making them the second-largest ethnic group in the country after Punjabis. Pashtuns are found throughout Khyber Pakhtunkhwa and the former FATA, in Karachi, Peshawar, Balochistan, Islamabad, Lahore and other urban areas. They are a very large group of some 31 million and are represented at all levels of society in Pakistan. I do not accept that this in and of itself attracts persecution for the applicant. His Pashtun identity is not in itself a ground for making this finding, but it is tied into an imputed point of view and political opinion as an ANP supporter and as particular social group, and possibly a western-influenced one. Another cumulative factor which would make him more vulnerable to attack, less able to defend himself and less likely to be able to relocation is the fact that (despite receiving ongoing psychiatric treatment) he continues to experience serious and ongoing depression and paranoia.
As a further point, state protection in Pakistan is so generally poor that I do not find that the applicant has the prospect of assurance of successful prosecution for politically motivated or sectarian violence. Success 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.[6] Effective protection measures are not available to him in his receiving country. He could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in his receiving country, other than a modification that would conflict with a characteristic that is fundamental to his identity or conscience or conceal an innate or immutable characteristic.
[6] DFAT Country Information Report, Pakistan 25 January 2022 [5.2]

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Justin Meyer
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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