1905626 (Refugee)

1905626 (Refugee) [2024] AATA 3945 (23 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Luke Brennan
CASE NUMBER:  1905626
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:23 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2024 at 2:48pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – religion – a practicing, Sunni Muslim – political opinion – member of the ANP – participation in a VDC – applicant was not targeted or harmed while in Pakistan – low level of activity in the past – mental health – applicant does not face a real chance of serious harm into the reasonably foreseeable future – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 279
MIAC v SZQRB (2013) 210 FCR 505
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 28 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Pakistan. He applied for the visa on 9 October 2018.
The applicant appeared before the Tribunal on 12 June and 2 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
At the outset of the second hearing the applicant noted that the interpreter’s Pashto dialect was from Afghanistan rather than Pakistan. The interpreter noted that the National Accreditation Authority for Translators and Interpreters only accredits Pashto speakers and does not distinguish between the various regional dialects. Noting that a future Pashto interpreter may also be from Afghanistan we discussed safeguard options if the hearing was to proceed. The applicant noted that he understands English and as such would be able to tell if there was an issue with the interpretation. I asked that both the interpreter and applicant raise any apparent concerns that may arise through the hearing. At the end of the hearing, I asked the applicant whether he had any concerns about the interpretation to which he said that he did not.
The applicant was represented in relation to the review including at both hearings.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
APPLICANT’S MENTAL HEALTH
The applicant presented a letter dated 3 June 2024 from [Ms A], ‘Psychological therapist and life strategist’. The psychological therapist presented the results of the self-reported DASS21 test which found the applicant to have ‘extremely sever’ (sic) depression, ‘extremely sever’ (sic) anxiety and ‘severe’ stress and that he also displays symptoms of PTSD. She summarised the situation of the applicant:
[The applicant] continues to experience symptoms of dissociation and difficulties concentrating due to emotional overwhelm and significant anxiety about the safety if returned to Pakistan. Additional symptoms include anxiety, low mood, and missing his family. Notably, he struggles to talk about the possibility or think about planning for a potential return to Pakistan, often freezing and becoming emotionally overwhelmed.
The Tribunal has on hand a further report by [Ms A], though written as an accredited ‘Mental Health Social Worker’ [dated] 1 November 2022.
An earlier letter dated 16 January 2020 was also provided but due to the passage of time, the more recent assessments are given greater weight.
Based on these assessments, the applicant required an approach aligned with the recommendations outlined in the Tribunal’s Guidelines on Vulnerable Persons.
At some stages through the hearing the applicant claimed he couldn’t remember certain things because of his mental health, which I have taken into consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is from [Village 1], a village in Swat District, Khyber Pakhtunkhwa Province of Pakistan. He lived there through to 2009. He described life there as being normal. He went to school and completed [a] grade, was involved in farming and he began a career as a [Occupation 1]in around the year 2000.
When on a [contract] he said that he would be away from Pakistan for one year with 2-5 months between contracts. He worked as a [Occupation 1] through to 2018 when he arrived in Australia and subsequently sought asylum. He said that the maximum period that he wasn’t [away] was 9 months in around 2003/2004.
[Details deleted]. He was based out of Orangi Town, Karachi, between 2009-2018 according to his written application, but at the hearing he described returning to Swat for visits through to 2014.
The applicant is married with two children. One child is in university, [and] the other child is [age] or [age] living with his wife and father.
The applicant has one brother who resides in [Country 1] and another brother who is also a [Occupation 1] but returns intermittently to [Village 1]. The applicant explained that this brother isn’t politically active and as such does not face the same level of risk as he does. Two of the applicant’s sisters are married and live in Swat in a neighbouring village some 6-7 km away.
The applicant is a practicing, Sunni Muslim.
The applicant described his early years in Pakistan and the emergence of the Taliban in a 2022 written statement:
I remember from around 1994 or 1995, when I was still in school, a movement formed in Swat Valley called the Tehreek-e-Nafaz-e-Shariat-e-Mohammadi, or TNSM, led by Sufi Muhammad. It was a movement which called for a religious movement, and Sharia law, to be introduced and enforced in the area. People were out on the streets, rallying for this religious movement.
After some time where I don’t recall much happening like this, a new group emerged in around 2007: the TTP. The leader of the group was Mullah Fazlullah, the son-in-law of Sufi Muhammad. Fazlullah started an FM radio station, preaching about Islam and its teachings. At first, the message seemed peaceful, and it would be broadcast to people’s houses and stores through the radio.
People followed Fazlullah’s teachings, which eventually called for things like changing their attire, growing beards, and wearing turbans. His followers seemed to increase daily; they would drive around the streets in large groups together, and they would go in great numbers to the village of Imam Dehrai where Fazlullah was based to pray, especially on Fridays.
Soon, Fazlullah’s followers were forcing others to join their prayers, and to go to the mosque. They would roam the streets and tell people to close their shops at prayer time. I play [sports], and I remember that people would come to the field where we were playing and tell us to stop and to go and pray, even if it wasn’t prayer time. They were very threatening; at first ehy would carry sticks and eventually they had guns.
…
Soon the teachings of Fazlullah were being enforced more brutally. Men were told to grow beards, and barbers were not allowed to shave them. Those who disobeyed had their shops destroyed. The TTP would close down video stores and stop people listening to music in their homes or cars.
The applicant described how some of the people he knew became TTP sympathisers and that the pressure they put on people led to him being scared of what would happen if he didn’t conform. He said that they slowly became more and more violent. Then in 2009 there was a major military operation against the Taliban that led to the displacement of people including his family. He was working [at] that time but when he returned, he joined them in Peshawar. After three months they were able to move back to [Village 1].
The applicant continued to work [but] while in Swat he undertook some activities that were considered as being against the Taliban including joining the Awami National Party (ANP) in 2007, supporting the Pashtun Tahafuz Movement (PTM) and joining a Village Defence Committee (VDC).
The applicant said that he convinced a lot of people to work for the ANP by explaining how they help Pashtuns. He encouraged people to help bring the party to power. He said that he had a lot of friends through [sports] and would speak to the spectators.
He said that the army would arrange sports tournaments to show that there was peace in the area. The applicant’s role involved inviting other teams, setting up [equipment], and organising umpires. He recalls this to have been close to the time when he and his family returned from Peshawar, which he estimated to be around 2011 or 2012. He said that he didn’t receive any threats at that time but said that whoever helped the army was known to the Taliban.
In addition, he said that he would attend ANP meetings, but his main contributions were during the elections.
His cousin was [a senior role] of the youth wing of the ANP for a constituency at [a regional] level. The cousin is currently in Australia, having received protection, and he provided a letter dated 2 June 2021 in support of the applicant’s application.
The applicant added that when he was younger his uncle was active with the ANP playing a similar role to what the applicant had done including attending meetings and rallies. He wasn’t harmed and now lives in [Country 1].
The applicant said that he was never harmed during his activities with the ANP. He also said that he hasn’t participated in any activities with the ANP since arriving to Australia nor has he posted any material on any socials in support of the ANP.
The applicant explained that none of his family are currently involved with the ANP, though he claimed that it’s because people are scared. He said that he heard of an ANP member in Luki Murwat being harmed and he referenced Idrees Khan, claiming that he had been an ANP member at some stage. The country information supporting this claim provided by the representative in her 2022 submission does not reference Idrees Khan being an ANP member and instead notes that Idrees Khan was the head of the peace committee, that he was an elder and ‘previously the head of a tribal force that fought against Pakistan Taliban.’[1] I find that Mr Khan was targeted for the high profile leadership roles he had undertaken as described in media reports rather than for having at some point in the past been a member of the ANP, if that is even the case.
[1] >
The applicant confirmed that neither his father nor brothers ever experienced harm.
Regarding the VDC, the applicant couldn’t remember when he joined, believing it to be in the early days, possibly 2009-2011. He said that he was most active with the VDC through to 2014. He said that he had never encountered an incident while on patrol.
No one from his family is currently a part of the VDC. He said that when they were, every member was supposed to do night watch patrols and that when he was in Swat, he would fulfil his obligations. When he was [away], his father would replace him, or an alternative option was to hire someone to replace you. He acknowledged that sometimes his family would hire someone. The applicant’s other [Occupation 1] brother also participated in night watches. None of his family members encountered any incidents. The applicant said that he is not aware of any recent incidents involving VDC members in [Village 1].
The applicant’s sons do not participate in the VDC.
One of the roles the applicant undertook while on the VDC for which he fears harm is that he led the army to the houses of some Taliban members in his area. He explained that the army were new to the area, and they asked where the Taliban leaders were, and they would be guided by people like him. He recalled doing this in about 2011/12. In his 2022 statement he named two Taliban whose houses he had identified and wrote that he had heard both were now living in Afghanistan, one with their family. Orally he said that he was asked about the whereabouts of the houses of two Taliban, and that he proactively volunteered the location of another two Taliban.
He acknowledged that other members of the VDC or the village leaders were probably providing the same information but added that there were a lot of Taliban, and some lived in locations unknown to the village leaders, though he is unsure if others provided the same information to the army.
When he would go to the houses with the army, he claimed that people on the streets were looking at him and that the Taliban have a strong information network. He believes that it was known that he had provided the information. I asked if that was the case why didn’t the Taliban come after him when they were strong in the area. He said that they must have been looking for the moment or chance to do so.
I asked how they would remember now, considering so much time and so many things have happened since then. He said they have lists of people who have crossed them and that its within their culture to never forget and to take revenge. He added that a lot of Taliban are still living in the village. When I asked at the second hearing how he knew this, he clarified that they are in the mountains and not operating openly in the villages.
When I asked him why he believed that none of his family have been targeted, the applicant said that their tendency is to target the person who is on the list and in addition they don’t usually attack elderly people. But I noted that at [48] of his statement he had claimed that he fears for his son as he would now be targeted as the head of the family and yet he hasn’t been and that before his son turning 18 years of age his father was the head of the family, and he wasn’t targeted. He said that the Taliban attack young people and that he is afraid that they will kidnap his son for ransom. When pressed on this he acknowledged that he doesn’t know of anyone having been kidnapped.
In the applicant’s original protection visa application, he claimed that ‘a group of people were throwing knives and rocks in our house’. In his 2022 statement[2] he corrected this by stating that no rocks were thrown at his house and instead he explained that he was providing context to the circumstances at the time rather than explaining exactly what happened to them. Although the applicant did not expressly state that no knives were being thrown, I take from his statement resiling from his original claim that it refers to neither rocks nor knives. I accept the change and place no weight on the original misleading claim.
[2] At paragraph [4]
The applicant claimed that in 2014 he chose not to go back to Swat after completing a [job]. Instead, he had his family visit him in Karachi. He said that prior to 2014 he would visit his home village but only rarely and only at night so as not to be seen.
He said that he believed that the army would clear the area of Taliban and there would be peace, but he realised that people continued to be targeted, and that the army wasn’t serious. He didn’t have trust in them, and he thought that he would be targeted. I put to him that the situation by 2014 was a lot better, noting that the number of security incidents had dropped.[3] He said that the Taliban had changed tactics and had begun targeted killings as opposed to bomb blasts and general violence.
[3] >
The applicant claimed in his written statement accompanying his application that while in Karachi he moved constantly and remained in hiding. In his 2022 statement he wrote that he moved around a lot and that he would live in a share house for a month or two and then take a job [and] then return to a different house. I noted that in his application form he listed the same address in Orangi Town, Karachi, from 2009 through to 2018 and only six months in a separate address in Karachi. When this was put to him, he said that he stayed in a building where [Occupation 1 people] lived and that there were many such places and so he would go from one place to another. But he said that it’s not common to move like that. He said that he moved because he feared that he would be harmed. He said that he didn’t want to be identified, which would happen if he lived in one place. He was concerned about informers who would know about him once he stayed in one place.

I also noted that he claimed others he knew were being targeted in Karachi and asked whether it was possible that they were killed for other reasons but happen to be former members of the VDC. He recalled one name and mentioned that he was a member of the VDC. He said that his death was at the hands of the Taliban, and he knew this as he had no other issues with other people. I said maybe someone came and robbed and killed him. The applicant said that nothing was taken from him. He claimed that there were persons with ‘hidden faces’ who killed him. The applicant said that he was in Swat district at the time when this incident happened, but he remembers the body being brought to the village. He said that he had heard of many people being killed, but that he can’t remember the details because of his mental condition.
I asked the applicant why he had [left his job] when he did, noting that he had been coming to Australia since 2001. He claimed that the situation was getting worse in Swat, in part because of the 2021 takeover of Afghanistan by the Taliban. I noted that the evidence is that over the long term it was getting better[4] noting that Pakistan tourists were returning to Swat (described as nearly half a million visitors in 2023).[5] He acknowledged that there were people coming from other provinces, but he said that these people have nothing against the army or the Taliban inferring that they wouldn’t be targets. He said that it was a hard decision to leave his family on their own. He said that his family had told him that the conditions were not good.
[4] >
The applicant confirmed that he hasn’t done anything against the army to raise their ire against him. He also confirmed that he had not faced any harm physically but said that mentally they cause a lot of stress through their checkpoints, searching houses and having to stand in long queues. He said that their house was once searched for no reason.
The applicant said that he does not fear any harm for reasons of being a Pashtun.
The applicant provided a letter from a former [politician], [Mr B], stating that the applicant was a member of the ANP, that he faced ‘several threats and troubles’ from extremists. I raised this with the applicant noting that he had not claimed any threats or troubles. The applicant said that [Mr B] was referring in general to all ANP members facing discrimination and threats of harm.
Another letter from the senior vice president of [a] VDC confirmed his membership of the VDC and added that he was on a Taliban ‘blacklist’.
The above mentioned ANP letter states that he is on a ‘hit list’ of extremists. Neither letter has a date. I asked the applicant if he knew when he had received the letters, but he couldn’t remember. As they were received during the Tribunal stage and not on the Departmental file, they would have been obtained and submitted around 2021 or 2022.
Reporting provided by the applicant’s representative on the death of Idrees Khan[6] states that he had been a target for 13 years, this suggests that the Taliban have targets. It was claimed that the applicant is on a list. But whether the applicant is a target, whether such targets appear on lists, whether any such list is a long list such that it is practically meaningless, or whether the names of targets are only those in the memories of local Taliban operatives, is unknown and can’t be informed by the evidence provided by the applicant or available country information.
[6] >
Instead, I find that the applicant’s profile is so limited, in part due to his past circumstances but also in part due to the passage of time, that he would not appear on any list of relevance and that if he was known to Taliban operatives it would be as a very low-level target.
A letter from the above-mentioned cousin who was active in the ANP affirms that the applicant was a member, and that ‘because of my political position in Awami National Party’ the applicant ‘might be targeted by Taliban’. He wrote that the Taliban target relatives of those who were active in the party.
Country information discussion
I noted to the applicant that there were no civilian deaths in Swat in 2023 and 2024 according to one database and that prior to that through to 2015 there were single digit incidents and single digit deaths from terrorism and sectarianism.[7] He responded that the people working against the Taliban ideology have left or are rich and can arrange for their own security. He added that the Taliban are focused on their target list for their attacks. In his written statement he claimed that they are stronger than before in part because they control Afghanistan and can run their operations from there. He noted that the then PTI government of Imran Khan, who was since deposed, was considered by some as pro-Taliban.
[7] >
Another database indicates eight incidents in Swat district in 2023 leading to seven fatalities and 10 injuries. This database does not disaggregate civilian incidents from deaths of security forces and police as the others do. I acknowledged that not all databases are perfectly accurate, but they consistently show low levels of incidents. When this was put to the applicant he said that the Taliban are looking for their opportunity to get to their targets.
I noted that those targeted are policemen, alongside other prominent personalities, tribal elders, and religious leaders according to one think tank that monitors Taliban attacks in Pakistan.[8]
[8] >
I noted that some experts suggest that the Taliban have a localized focus on the geographical area along the border with Afghanistan. During peace negotiations in Kabul between the Taliban and Pakistani government the Taliban stressed that the reinstatement of the semiautonomous status of the Tribal Belt and the implementation of sharia there were its key demands.[9] I asked if Swat district was a part of the Tribal Belt. He acknowledged that it wasn’t, but he said that it bordered those that were and added it was a mountainous area and people easily come and go.
[9] >
Country information was provided of a number of attacks in Bannu district. Bannu district was a part of the Federally Administered Tribal Areas, the Tribal belt. As noted above, it is a part of the area which the TTP have expressly stated is their aim to control. This is not the case for Swat.
Experts have noted that by the spring of 2021, the Taliban’s relatively new Emir had implemented very significant changes in the Taliban’s modus operandi to avoid past violations that were central to its decline. His new approach significantly reduced attacks against civilians and considerably reduced civilian casualties in attacks.[10] I noted that this aligned with the applicant’s claims that they had changed tactics. The applicant said that maybe they were no longer targeting civilians, but they would target those who have helped the army.
[10] ibid
We discussed some contradictory evidence about the number and presence of Taliban in the mountains in Swat district. I noted that the army had said that there was a misperception created on social media of a large presence of Taliban and that the reality is that a ‘small number’ have ‘sneaked in from Afghanistan to resettle in their native areas’ and that they are being monitored by the army. The applicant said that the army doesn’t give accurate information and that the Taliban can come and go as they please.
I also noted that country information on attacks against ANP figures in Khyber Pakhtunkhwa indicated that in 2023 there was one ANP leader who was killed.[11] In 2022 two political figures were killed one in North Waziristan and the other in Bajaur districts[12]. I suggested that this indicated that the ANP weren’t being targeted as they once had been. The applicant said that the Taliban look for chances and moments.
[11] >
The representative made submissions quoting a source that the situation has ‘deteriorated since mid-2021’. This is correct, but we must avoid relativist data when considering the circumstances into which the applicant would be returning to. That there has been a deterioration in recent years only suggests that the situation has become worse than it was, but it does not inform us on how safe or how unsafe it is and in turn the risk facing the applicant upon return.
The representative also provided data on the security situation on Pakistan as a whole but the situation along the border of Afghanistan is very different to the situation in the centre of the capital city of Islamabad. Where more information is available about the situation in the specific area to which the applicant will be returning to, then this should be given greater weight particularly when considering the situation in Pakistan which is a disparate country facing upheaval in different corners that is being driven by different factors. In this case, there is substantial information on the situation in Swat and as such information on the overall situation in Pakistan is less relevant and similarly, but somewhat more relevant to this matter, the general situation in the province of Khyber Pakhtunkhwa.
The representative in her submissions noted that an explosion in Kabal village, Swat, that led to 17 people being killed wasn’t included in the SATP data. The representative provided submissions on this incident. The incident was reported as being triggered when explosive material caught fire.[13] The representative asserted in her submissions that this should be taken with a grain of salt as it was information provided by the authorities and that in a war against terror an explosion at a counter-terrorism facility is relevant to the real chance assessment. I disagree. It is important to note that both the South Asia Terrorism Poral (SATP) and the Pakistan Institute of Peace Studies (PIPS) are non-government organisations who obtain their information, as noted in the representative’s submissions, from various sources. There is no evidence that supports the assertion that their assessment of the Kabal incident not being terrorist related was driven by a government decision.
[13] >
The representative added further doubt to the think tanks’ credibility by comparing the reports across two organisations, SATP and the Centre for Research and Security Studies (CRSS) for Swat noting that they differed. The representative provided a table summarising this data.[14] That there is some discrepancy is not unusual nor unexpected. Each organisation will have its own methodology as was noted in one of the sources used by the representative in her submission.[15] Were the numbers starkly different it could be cause for concern but in this instance the figures from CRSS are lower than the source used by the member (SATP) for two years and higher for one year.
a.For 2021 SATP shows two civilians killed and one insurgent.[16] CRSS shows 2 killed without distinguishing if they were civilians, security or terrorist.[17]
b.For 2022 SATP has eight civilian deaths (the Idrees Khan incident), and five terrorists.[18] CRSS has two deaths without distinguishing if they were civilians, security or terrorist.[19]
c.For 2023 SATP shows zero civilian deaths, two security forces deaths and one terrorist.[20] CRSS shows seven fatalities without distinguishing if they were civilians, security, or terrorist and ten injured.[21]
[14] Page 10, pre-hearing submission
[15] SATP Swat database
[19] SATP Swat database
[21] >
As noted in the above comments, CRSS data does not disaggregate security, terrorist, or civilian deaths and hence there is some ambiguity when comparing them. This could be one of the reasons for the slight variation in numbers. Either way, whichever source is relied upon, the picture it paints is of civilians not being targeted and minimally suffering collateral damage when noting that these figures are for the entire Swat district which has a population of 2.3 million.
The representative also argued that there were limitations on the media to report on incidents from Swat referencing the most recent DFAT report that states that media ‘faces intimidation and violence and comes under intense pressure to avoid sensitive topics.’[22] But in today’s social media age, when some news is purely online and there are citizen journalists reporting events, I do not accept that the professionals at organisations such as SATP and PIPS are so unaware of the unique circumstances in their own country that they would overlook the true situation on the ground. Instead, I find that these two organisations, are informed and reliable sources, and as such would find ways to work around relying solely on the media.
[22] DFAT Country Information Report – PAKISTAN - January 2022 at [3.114]
The representative noted that the databases only report deaths and not injuries. I accept this but also note that the Taliban are a movement that kills opponents as opposed to seeking to harm but not kill by, for example, breaking limbs. I accept that while there may be an intent to kill, an incident can lead to the maiming of individuals.
The representative provided province level data from the Centre for Research and Security Studies that disaggregates injuries from deaths. Their table shows KP having about the same number of injuries as fatalities, in other words the total casualties numbers is twice the number of deaths. Without further information and noting that it is a consistent ratio across Pakistan based on the information provided by the representative[23] it is reasonable to assume that in Swat district the same situation prevails and as such I take this into consideration.
[23] Page 8, pre-hearing submission, Table 01-A
The representative provided reporting that the Taliban were not only seen in Swat but had established check points in some areas, in another snippet presented in the submission an analyst claimed that the TTP will continue to make inroads including all the way to Islamabad. Another analyst quoted suggested that the Taliban have made inroads outside of KP and another that they will ‘increase their influence within marginalised areas and religious institutions’. This analysis is relevant, but it is one of many sources to be considered. In doing so, what one analyst foretells arising from the sightings of some Taliban in Swat weighs less than actual incidents of harm befalling residents of Swat. This is because ultimately the question that I must consider is not whether there is a presence of Taliban but rather whether the Taliban (or other jihadist groups) are taking actions against civilians of the applicant’s profile and in turn whether he faces a real chance of serious harm or a real risk of significant harm.
I accept that there is intimidation, and that fear arises simply from the Taliban’s presence. I also accept that people are maimed in incidents and such injuries, if not involving death are not reported in the district level data of SATP. But members should not allow the perfect to be the enemy of the good. All of the evidence, quantitative and qualitative, even data that doesn’t include injuries contributes to painting a picture of the situation into which the applicant will be returning to.
In submissions dated 31 July 2024 a summary of new country information was provided along with links to articles. One aspect of the new evidence was the national government’s announcement of a new military operation in Khyber Pakhtunkhwa and the TTP’s response including an announcement of their own operation which has a stated goal of intensifying attacks in Pakistan. As a result of these operations, it was reported that many residents of KP were concerned about their futures and members of various groups have staged protests and lobbied the federal government against undertaking operations in civilian areas.
I asked the applicant how these developments will impact him. He said that he doesn’t trust the army, he believes that they say things, they come and then they torture people and destroy their homes, instead of doing any harm to the Taliban. He said that the Taliban get more aggressive towards the people and the people are the victims. I asked if there was a reason to believe that he would be a person of interest to the army. He said that he doesn’t trust the army. He can’t confirm if they will be against him, but when they announce that they will operate against insurgents they harm people.
It is too early to say what the repercussion of this new operation will be. One article referenced by the representative in their submission quoting the office of the Prime Minister Shehbaz Sharif stated that the new operation ‘would not be a full-scale military campaign displacing a large number of people like the previous operations.’[24]
[24] >
The applicant’s representative also provided a link to a quarterly update from the Centre for Research and Security Studies stating that areas other than those bordering Afghanistan were ‘relatively peaceful’:
The northwestern Khyber Pakhtunkhwa (KP) and the southwestern Balochistan provinces – both bordering Afghanistan, were the epicenters of violence, accounting for nearly 92% of all fatalities and 87% of attacks (including incidents of terrorism and security forces operations) during this period.
Individually, the former suffered 67% and the latter 25% of all fatalities in Q2, 2024.
The data indicates that the remaining regions were relatively peaceful, suffering only 8% of all fatalities.
I put this to the applicant. He said that the insurgency can move and that it is growing. He mentioned an attack on a police station, injuring two policemen and a worker, about three weeks ago.
In the 2022 submission the representative argued that the situation would further deteriorate and provided some views on why this would be. I find that this is speculative as every commentator has a view of how the future geopolitical scenario will evolve but none know for sure. Rather than speculating by favouring one view of the future over another, I adopt an approach that the circumstances into the reasonably foreseeable future will continue to be as they have been over the past several years, noting that the Taliban take over of Afghanistan was three years ago, which is enough time for its impact to play out.
It is necessary to consider the general security situation into which the applicant would be returning to as a perilous security environment amplifies certain individual risks, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, violence can occur with virtual impunity including general attacks based upon, for example, political belief or association. Such an environment may heighten the level of risk to the applicants where, otherwise, in peaceful circumstances the threats to them would be constrained.

As such, in considering the country information before me I find that there is a presence of Taliban in Swat District, which may be a reason for the small uptick of attacks rising from two civilian deaths in 2021 to eight in 2022 and zero again in 2023. But it is relevant to note that Swat has a population of over 2.3 million people. This is relevant when considering the level of general insecurity and in turn the ability of the Taliban to penetrate into urban areas and as such the circumstances into which the applicant would be returning to. Despite the attacks on the security forces and those actively supporting them, for the millions of civilians living in Swat, the situation, based on the evidence available details an environment that I consider to be moderately safe or as the Centre for Research and Security Studies in a submission by the representative described as ‘relatively peaceful’.[25]
[25] >
When considering all of the country information discussed above, I find the security situation in Swat district as being moderately safe now and into the reasonably foreseeable future.
To avoid doubt, while not all country information submitted by the representative was referenced in the above analysis, it was all reviewed and considered in detail. I also note that the applicant referenced an incident in Luki Murwat but did not give further details. What ever the incident was and whenever it was I find that it would have been considered by the think tanks and incorporated into their assessments if relevant.
Considerations
Applicant’s past activities
With regards to the applicant’s claims of fearing harm for reasons of his past activities as detailed above including support and membership of the ANP, participation in a VDC and support of the army, I note that the applicant was not targeted or harmed while in Pakistan, whether in Swat district or Karachi while on [leave] from his [Occupation 1] work.
There is no claim that his immediate family were harmed despite these activities and being related to the cousin who held a senior youth role within the ANP while the applicant continued to visit Pakistan.
The applicant was a member of the VDC for the periods that he returned to Swat. He did not encounter any incidents while on patrol. He did identify some houses that were occupied by Taliban families but noting that he did not encounter harm arising from this at the time or in the following years, I find that it was not known or not considered of note to others in the community.
The applicant engaged with the army by helping to set up [sports] matches, and this similarly did not lead to the applicant encountering harm.
That the applicant was at some stage on a list, in its loosest construct, is indicative that he was at that time known to the Taliban but on the evidence available to the Tribunal it would indicate that he was not a high enough value target, such as Idrees Khan, as he was never threatened or targeted.
I find that his activities would have been known to potential persecutors then whereas now those same past activities would be a very dim memory.
I note the applicant’s reference to a culture of revenge but noting the applicant’s specific circumstances and not having encountered harm or even threats for the several years that he continued to return to his village where he would spend months living, I find that any desire for revenge would be greatly dissipated.
The applicant acknowledges that the current situation isn’t as bad as it was when he was living in Swat, a relevant factor when considering the weight to be placed on his past experiences of not having faced any harm.
This leads me to conclude that even were the applicant to return to live permanently in [Village 1] the applicant’s past activities including with the VDC, ANP and army and familial relationships will not lead him to face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant as a necessary and foreseeable consequence of removal.
Applicant’s future activities
Prior to turning my mind to considering the applicant’s claims of fearing harm, it is relevant to make a note on terminology. An issue arose through submissions at the hearing over the DFAT report’s use of the term ‘risk’. The DFAT reports across all countries include a section defining the term risk as follows:
High risk: DFAT is aware of a strong pattern of incidents.
Moderate risk: DFAT is aware of sufficient incidents to suggest a pattern of behaviour.
Low risk: DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern.
It is important to distinguish how the DFAT usage of the term risk differs from the statutory requirement under the Act for a member to assess risk. For members, the term carries the meaning of ‘real chance’ being not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test.
Whereas risk is defined by DFAT in their reports to mean that ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour,’ a pattern of behaviour refers to something other than random events. It is directly relevant to the decision-making process as a well-founded fear of harm must involve ‘systematic and discriminatory’ conduct (s5J(4)(c)) and under complementary protection there must be an actual, subjective intention to inflict harm. A low, moderate, or high risk in DFAT parlance may be aligned with a real chance of serious harm, or it may not; the circumstances of each applicant will determine the case as will contextual country information including up to date information when the circumstances have changed. It is not appropriate for a member to abrogate their statutory responsibilities to a DFAT officer by adopting a generalised view, instead it is incumbent on members to assess an applicant’s individual circumstances.
The representative in her post-hearing submission dated 15 August 2024 suggested that caselaw supports a view that the DFAT risk assessment should inform the Tribunal’s views of the likelihood of future harm and that taking the DFAT report into consideration is a requirement imposed through Ministerial Direction Number 84. I do not disagree. The issue is not whether the report is being taken into consideration, it is how it is to be considered.
Now turning to the applicant’s future activities, he has not continued with any political activity in the six years that he has been in Australia. When asked about what his intentions are were he to return, he said that he may not become involved with the VDC but would be with the ANP and PTM but that he hasn’t thought about what he’d do if he was to return. He said that he is supportive of these groups, but that he hasn’t anything specifically in mind of what he would do.
The applicant was asked at the end of the second hearing if he had anything to add, he demurred. The representative asked that I prompt specific questions as to whether he would be involved in protests. I suggested that this would be prompting the applicant and that he has been afforded sufficient opportunity to make his case.

100. When he was offered the opportunity again, he said regarding the ANP he would vote for them and encourage friends to vote for them.
101. Noting the applicant’s mental health challenges, his complete disengagement from any active role in Pakistani politics while in Australia, his low level of activity in the past and his view that his future activity would be to encourage others to vote for the ANP, I find that the applicant’s future public activities will carry a very limited profile. I acknowledge that DFAT assesses ANP members face a ‘moderate risk’ of violence, noting that moderate risk is defined as there being sufficient incidents to suggest a pattern of behaviour, but as noted the actual number of targeted incidents is small, three in the last two years, across the whole of Pakistan. This is a pattern when considered alongside previous incidents and as such I acknowledge the view presented in the DFAT report. While there may be a pattern of incidents it is relevant to consider the context which in this case involves a political party that has a presence throughout the country and hence the existence of a few incidents is a relatively minor indicator of risk and the applicant’s profile of not being an office holder/politician but only a supporter. For these reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for the reason of supporting the ANP.
102. I asked the applicant what type of harm he fears from the army if he supports the PTM. He said that the army arrests people, tortures people and imprisons people without investigation. When the PTM are on the streets protesting he claimed that the army starts shooting. I asked when that happened. He said that he is not sure when it happened, maybe a month ago and 2-3 years ago. I noted that sometimes there are protests and some people are arrested but that has also occurred when there is a legal ban preventing protests.[26] He said that in Pakistan getting approval for a protest is not easy, they don’t seek permission and then the army reacts.
[26] In post-hearing submissions dated 15 August 2024 the representative provided details of an incident in Bannu, Khyber Pakhtunkhwa on 19 July 2024 when police opened fire on protestors. I accept that this has occurred as reported. The other instance of such an event available to the Tribunal is from a submission by the representative that the authorities opened fire in Waziristan on a protest in 2019.
104. I noted that the PTM has large support for its activities and that in one protest in Peshawar they had about 15,000[27] people attend and that other recent protests bring thousands together and that they are widespread through Khyber Pakhtunkhwa (as per the country information provided by the representative). He acknowledged that they had gained people’s trust. I asked that if there is such widespread support for them then what is the level of risk to him. He said that because of his past, he is at risk. He believes that because of his past the Taliban would know of him and harm him. He said that he is also fearful that the army would harm him through their attacks. He said that a lot of people don’t want the army in their village. He believes that the army is creating a justification for their presence.
[27] I noted that the evidence before me is that it is the leadership who are targeted and asked the applicant if that is the extent of the risk the PTM members face (the evidence before by way of information contained in submissions includes the arrest and release of Manzoor Pashteen in January 2024[28], the leader of the movement; the detention for four hours and torture of Ilyas Pashtee, a ‘prominent member of the PTM’[29]; and the death in custody of Gilaman Wazir, ‘a famous Pashtun poet known for his poetry of resistance’.[30]). He responded that it impacts general supporters as well.
[28] and With regards to the impact upon general supporters, the 2022 DFAT report references incidents from 2018 as the most recent when stating that grassroots members face ‘harassment and violence’.[31] When this was discussed, the applicant said that PTM members are targeted by the government, army, and Taliban. He said that there are incidents that happen and that it’s not known who is behind them, though it’s believed to be the military. I noted that there are many possible reasons for incidents. He agreed that there are personal rivalries, but he noted that they are open and not hidden.
[31] DFAT [3.81]
107. DFAT concludes PTM leaders and members face a ‘high risk of official discrimination’ and ‘moderate risk of violence or enforced disappearances’ from the state and ‘moderate risk of violence’ from militant groups.[32] Again, I note that this indicates that DFAT has identified a ‘strong pattern of incidents’ showing official discrimination and sufficient incidents to suggest that there is a pattern of behaviour such that members and leaders face violence and enforced disappearances.
[32] DFAT at [3.82]
108. When considering the size of the movement, the widespread number of protests, the type and target of attacks, the applicant’s low profile and limited future activities, while noting that incidents do occur such that there are indications of a pattern, I find that the applicant faces a very low level of risk such that it would be remote. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for the reason of supporting the PTM whether from the government or militant groups.
109. The applicant variously said that he would and that he wouldn’t contribute to the VDC. Noting that the VDC is a partially government initiative and considering a new concerted effort by the authorities to act against the Taliban, I accept that the applicant may become involved in some manner with the VDC into the reasonably foreseeable future.
110. I note that DFAT identifies peace committee members and their families as facing a moderate risk of violence at the hands of militant groups, which as noted above means that there is sufficient evidence to suggest a pattern of behaviour. As discussed in the country information section of this decision, there is a heightened level of violence perpetrated by the Taliban in the areas bordering Afghanistan. In these areas the risks to VDC members differs to those in areas further from the border. That is why context is relevant. The context into which the applicant would be returning to is one in which there have been minimal attacks against civilians and the only VDC member to have been identified as having been targeted in the past several years was Idrees Khan who was the head of the VDC, a village elder and a long-time leader against the Taliban in his area. The applicant’s profile is not the same nor even similar and would not into the reasonably foreseeable future become anywhere near the same. For this reason, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal were he to be forced to join the VDC.
111. It is also relevant to note that in considering the applicant’s risks I have taken into consideration all sources of violent Islamic ideology and not just the Taliban. While the applicant did not distinguish between them, in some country information provided by the representative there are references to threats and incidents from other groups. But noting that the information available regarding the security situation in Swat into which the applicant would be returning to remains the same regardless of which jihadist group is responsible for any particular threat or violent action, this does not change the above findings.
112. To avoid doubt, I have considered whether the applicant’s mental health may impact the feared threats from the government, community or militant groups arising from his future activities. I have considered whether his risk profile would increase and whether any harm he may encounter will impact him disproportionately. In turning my mind to this, I note that the applicant’s mental health circumstances are such that he is less likely to engage in public political activities and as such it does not increase his level of risk. In addition, there is no indication that he has any condition which could inadvertently lead to inflaming tensions.
Mental health claims
113. With regards to the applicant’s mental health, he takes a drug called [name], which I noted to the applicant is widely available in Pakistan.[33] He said that he isn’t sure if it is available and hasn’t heard of any ‘mental health doctors’. I suggested that simply Googling psychologist and Swat came up with many mental health specialists including some who undertake video consultations.[34] He said that he is not sure of their availability, he said that his life would be at risk and so not sure how helpful they would be.
[33] [deleted]
[34] When asked what type of harm he fears arising from his mental health, he said that he is forgetful and that he can’t sleep properly and gets nightmares.
115. I asked how a potential persecutor would know that he was suffering from any mental health challenges. He said that he hasn’t told anyone, but those living around him will know as he will need to ask about doctors and medication. He said that people are judgemental, and they want to know everything about you.
116. I noted that Pakistan is widely regarded as having some of the highest levels of mental health burdens of all countries among its population[35] including as the country information submitted by the applicant’s representative states, ‘36 percent of Pakistanis suffer from anxiety and depression which is often caused by strained family and friend relations, the feeling of not fitting in the society, the unstable economic and political conditions of the country giving rise to unemployment and poverty.’[36]
[35] November 2022 submission by the representative p25
117. I asked if others are living with similar conditions why would he face any discriminatory harm. He said that people are not treated very well, and they are not helped. He said that people don’t trust those with mental health challenges, don’t treat them as normal human beings, aren’t given jobs, nor houses to rent. I noted that 40% in some places have broadly similar conditions to his, and asked if they are all not trusted.[37] He said that it depends upon the extent of the mental health challenge the person bears.
[37] Asad, Khan, Zaman, Karachi Mental Health Report (KMHR): A collaborative project of Dept. of Psychiatry, Aga Khan University and Aman Foundation, Karachi, 2012
118. I asked about a statement by his psychological therapist that ‘missing his wife, two sons, and extended family, contributes significantly to his mental health difficulties.’[38] He said that his main problem is fear. But I noted that he was able to maintain a job, have a family, and contribute to the community when he was afraid before, while living in Pakistan, and asked why he couldn’t do so again into the future. He said that it wasn’t easy at that time, but he acknowledged that he was able to cope, noting though that his job was [not] in Pakistan.
[38] Report dated 3 June 2024
119. I noted that he is working in Australia in a supervisory role. I asked how he is able to maintain such a job and yet claim to be unable to function in Pakistan. He said that he is a leading hand who helps the supervisor and that he doesn’t have a lot of responsibilities. He added that he has gotten used to it.
120. The applicant has claimed a fear of harm for reasons of his mental health. He said that he would be afraid of seeking out health care professionals and that he would be unable to access medication. The evidence presented to the Tribunal was that he feared what would broadly be referred to as stigma that in turn would inhibit his ability to seek treatment. In addition, the representative noted that there were limited opportunities for treatment, specifically ‘therapeutic psychological support’.

121. The representative provided country information specific to Khyber Pakhtunkhwa about the type of harm encountered by those who have mental health issues. The source journal article separates out the challenges into two groups, private stigma and public stigma. The former being the reaction by an individual to a perception of a stigma, regardless of what it may be, and the latter being community perceptions. It is relevant to note that ‘most’ of the participants in the study were ‘unaware of the general public opinion towards mental disorders.’[39] Those that were described people laughing at others who have a mental illness, a perception that only ‘crazy’ people go to a psychiatrist, a belief that its not an illness but ‘black magic’, a few responded that no one wants to wed their daughter to someone with a mental illness, that other health related issues garner more sympathy, or that there is a view that God is punishing those with mental health challenges.[40] In reflecting on the nature of these views held by some in the community and noting that there are no claims of action being taken against individuals with mental health challenges and considering how being confronted by such views may impact the applicant, I find that none would amount to serious or significant harm.
122. The applicant’s representative also claimed that the applicant will struggle to access the mental health support he utilises in Australia and hence his mental health will deteriorate in Pakistan. As noted at the hearing, there are Pakistani psychologists available in Swat and there are others who offer video sessions. While the number of mental health specialists is low, as noted by the reference provided by the representative,[41] this is a challenge faced by the entire health sector in Pakistan arising from the state’s limited financial resources. There is no evidence before me to suggest that the Pakistan government withholds mental health services funding discriminatorily, that it withholds funding from particular groups or that there is some sort of discriminatory act or an intentionality to harm Pakistanis with mental health symptoms.
123. Noting that the applicant can access the medication that he is being treated with in Australia and that there are psychologists available who provide sessions online which would minimise the risk of being confronted by public views, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his mental health.
124. Of note, in the 21 November 2022 submission by the representative it states that the applicant is a member of a particular social group, ‘Returnees from Western countries to Swat Valley.’ This claim was not continued into subsequent submissions. The applicant did not claim to fear harm for reasons of being a returnee in his interview, hearing or numerous statutory declarations and there is no country information in any of the submissions, including the November 2022 submission, that would be indicative of the possibility that returnees from the West face a real chance of serious harm or a real risk of significant harm to returnees from Western countries. It appears to be a statement without supporting evidence. Without any evidence of a subjective fear and there being no evidence before this tribunal to suggest that returnees from the West face could face a real chance of serious harm or a real risk of significant harm including in the DFAT report, but nevertheless to avoid doubt, I find that the applicant does not face a real chance of serious harm or a real risk of significant for reasons of returning from the West.
Cumulative considerations
125. In considering the applicant’s circumstances as a whole, noting his past activities, his familial circumstances including a cousin and uncle who had previous political activities, and his future activities all in the context of his mental health, I have reflected on how these elements may amplify the risk or increase the quantum of harm he faces. The applicant fears various potential persecutors such as a range of violent jihadists and the army, but these two groups don’t collaborate as such a risk from one is isolated from the risk of another. There are circumstances in which the above considered claims compound such as the applicant’s past activities and his future activities in instances, for example, where someone may have known of his past activities and then based on his current activities the appearance of a consistent view of him being anti-Taliban is established. Another possibility is that the applicant’s mental health does not allow him to navigate the challenges facing supporters of the ANP and PTM such that he is exposed to a higher level of risk than others. But even when considering all of these combinations I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
126. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
[39] ibid
[41] UK Home Office, Country Policy and Information Note Pakistan: Medical and healthcare provisions; September 2020 type="1">
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
129. The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy President

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.
…

33024494.html referenced in the 15 August 2024 submission

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Statutory Construction
Procedural Fairness
Jurisdiction
Remedies

[2024] AATA 3945

23 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies