1906621 (Refugee) - [2024] ARTA 567

1906621 (REFUGEE) [2024] ARTA 567 (20 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Ms Karyn Anderson (MARN: 1276020)
Respondent:Minister for Home Affairs

Tribunal Numbers: 1906621
1906622
Tribunal:General Member R Da Costa
Date:20 November 2024

Place:Sydney
Decision:In case number 1906621, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Decision:In case number 1906622, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 20 November 2024 at 9:22am
CATCHWORDS
REFUGEE – protection visa – Pakistan – combined hearing and decision of applications by uncle and nephew – political opinion – supporters of Awami National Party and anti-Taliban – extorted, threatened and looted by Taliban occupying village – membership of village defence committee – consistent and credible evidence despite mental health and memory issues – country information – recent increase in attacks, control of some areas and targeting of members of VDCs – decisions under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
FCS17 v MHA [2020] FCAFC 68
MZANX v MIPB [2017] FCA 307
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATIONS FOR REVIEW

This is a combined decision record in respect of two applications for review in respect of the applicants who are an uncle and nephew from the Swat valley in Khyber Pakhtunkhwa province (KPK), Pakistan.
Case number 1906621 is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). [The applicant nephew] is a citizen of Pakistan. He applied for the visa on 26 October 2017. The delegate refused to grant the visa on the basis that [the applicant nephew] is not a person in respect of whom Australia has protection obligations.
Case number 1906622 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 uncle] is a citizen of Pakistan. He applied for the visa on 26 October 2017. The delegate refused to grant the visa on the basis that [the applicant nephew] is not a person in respect of whom Australia has protection obligations.
[The applicant uncle] is [the applicant nephew]’s uncle. One of [the applicant uncle]’s brothers is [the applicant nephew]’s father.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The Tribunal hearing
The applicants appeared before the Tribunal on 31 October 2024 to give evidence and present arguments in support of their cases. The hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The Tribunal spoke to each of the applicants separately and then together at the end of the hearing.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
Background – [the applicant uncle]
Based on information provided in [the applicant uncle]’s protection visa application form, his background is as follows. He is a [Age]-year-old man from [Village 1] in the Swat valley district of KPK, Pakistan. He is of Pashtun ethnicity, speaks Pashto and is a Sunni Muslim. In Pakistan, he has a wife, [children], as well as his father and [siblings]. He has one brother who lives in [Country 1]. He is in regular contact by phone with his family.
[The applicant uncle] completed middle school in Pakistan. From 1993 to 1999, [the applicant uncle] worked for his family’s business in [Location 1] which made [products]. From 2000 to 2017, [the applicant uncle] worked for [Company] as part of a [work group] which travelled to multiple [locations] around the world. When he was not abroad, he lived in his family home in [Village 1].
[The applicant uncle] departed Pakistan legally [in] June 2017 and entered Australia [in October 2017].
In the Tribunal hearing, [the applicant uncle] gave evidence that he lives in Sydney with [his nephew] and a couple of friends from their area in Pakistan. For the last year or two he has been working between 20 and 40 hours per week doing [work] for a [company]. He has skills as [an occupation 2].
Background – [the applicant nephew]
Based on information provided in [the applicant nephew]’s protection visa application form, his background is as follows. He is a [Age]-year-old man from [Village 1] in the Swat valley district of KPK, Pakistan. He is of Pashtun ethnicity, speaks Pashto, Urdu and English and is a Sunni Muslim. In Pakistan, he has a wife and a son, as well as his parents and [siblings]. He is in regular contact with his relatives by phone.
In Pakistan, he usually lived in his [village]. From December 2009 to December 2011, he lived in [Karachi], while he was studying. He has a Diploma in [Subject 1] from the [named College] in [KPK] and a Bachelor of [Subject 2] from [a named educational institute] in Karachi, Sindh province. From April 2012 to October 2017, he worked for [Company] as part of a [work group] which travelled to multiple [locations] around the world.
[The applicant nephew] left Pakistan legally [in] November 2016 and entered Australia [in October 2017].
In the Tribunal hearing, [the applicant nephew] gave evidence that he lives in Sydney with [his uncle] and some Pashtun friends from his area in the Swat valley. For the last year or so, he has been working [for] [a company] and he works up to 8 hours per day if there is enough work. Before this, he worked for a different company doing similar work.
Evidence before the Department and the Tribunal – [the applicant uncle]
[The applicant uncle]’s evidence about his claims for protection
[The applicant uncle]’s original claims for protection are contained in a written statement attached to his protection visa application form. He provided consistent information to the delegate in his interview in 2019 as well as elaborating on aspects of his claims. The delegate found [the applicant uncle] to be credible and accepted his evidence about events in Pakistan, but found that since he departed Pakistan the security situation in his area had improved to the extent that he would not face a real chance of persecution there now or in the reasonably foreseeable future. [The applicant uncle] provided further consistent information in his Statutory Declaration dated 15 December 2023 (Statutory Declaration) and his oral evidence in the Tribunal hearing.
The Tribunal considers the evidence provided by [the applicant uncle] about his circumstances both in Pakistan and in Australia to be credible. [The applicant uncle] has given consistent evidence over time, both in writing and orally, about the events in question. Despite his mental health and memory issues, which are referred to in more detail below, his oral evidence in the hearing was sufficiently direct, detailed and coherent that the Tribunal found it to be persuasive and the Tribunal does not consider that he was attempting to embellish or exaggerate his claims. In particular, the Tribunal was persuaded by the strength and firmness of his evidence relating to his anti-Taliban views and actions.
Having considered the evidence about [the applicant uncle]’s mental health and memory issues, in the hearing the Tribunal made a particular effort to keep the questions it asked [the applicant uncle] as focussed and straightforward as possible, and to minimise the number of questions it asked him. The Tribunal also took into account the former AAT Migration and Refugee Division Guidelines on Vulnerable Persons.
Events in Pakistan
Based on the evidence provided to the Department and Tribunal by [the applicant uncle], the Tribunal accepts his claims about events in Pakistan that led to him applying for a protection visa as follows:
·     In about 2008, the Taliban entered [the applicant uncle]’s village and after examining the area from a strategic point of view they demanded [the applicant uncle] and his family hand over their house because it was in the highest part of the village.
·     [The applicant uncle] already hated the Taliban and also knew that if his family handed over their house, they risked being bombarded by the Pakistani armed forces and being accused of collaborating with the Taliban.
·     [The applicant uncle] refused the Taliban’s demand, which made them angry. The Taliban demanded Rs 1 million or two males from the family who would fight on the Taliban’s behalf. The Taliban threatened that if the family refused their demands again, then they would have to face loss of life and destruction of their homes. [The applicant uncle] and his family paid the money, which was a huge amount for them.
·     [The applicant uncle]’s brothers all lived close to each other in the village. A few months later, the Taliban approached them again wanting to widen the laneway between [the applicant uncle]’s house and that of his brother, [Mr A] ([the applicant nephew]’s father) to create a road that would give the Taliban access to the hilltop from where they could attack the Pakistani security forces. [The applicant uncle] and his family refused the request again, using the excuse that the women and children, in particular, used that area a lot. The Taliban were angry and threatened [the applicant uncle] again. Following this, [the applicant uncle] and the other male members of his extended family began taking it in turn to do night patrols for the safety of their families.
·     Soon after, the Pakistani army announced a military operation to drive the Taliban out of the Swat District and [the applicant uncle] and his relatives had to relocate to the nearby city of [City]. While they were away, the Taliban looted their houses.
·     In late 2009 when the villagers returned to the Swat valley, the armed forces recommended the establishment of Village Defence Committees (VDC) to assist the security forces to collect information about the remaining Taliban in the area and help to keep the peace. Many Taliban were still living in the area as many of them were local people.
·     [The applicant uncle] joined the VDC for his village and took an active role when he was not [away] for his job. He provided the Pakistani forces with all the information he had about local Taliban, including showing them Taliban houses and people who had made threats. [The applicant uncle] passed as much information as he could to the Pakistani security forces in the area, which led to the arrest and, possibly, the death of members of the Taliban.
·     In early 2012, two Taliban from [the applicant uncle]’s village were covertly visiting their houses when [the applicant nephew] saw them. [The applicant nephew] immediately alerted the Pakistani security forces who launched an operation and arrested the men. The arrest of the Taliban resulted in good publicity for [the applicant uncle]’s and [the applicant nephew]’s family, but it increased the danger from the Taliban because the Taliban knew they were openly assisting the Pakistani forces and [the applicant uncle] and his family had previously refused to assist the Taliban back in 2009. [The applicant uncle], his brother [Mr A], and [the applicant nephew] received threatening phone calls from the Taliban saying they had caused problems and would be killed.
·     In 2016, [the applicant nephew] was on night watch with the VDC and saw unknown people approaching their houses. He realised they were Taliban and alerted the other men on duty who fired guns into the air to try to scare the people off. The army came to search for them but the people disappeared without being caught. After this event, in about August 2016, [the applicant nephew] left the village and stayed in Karachi until he got a new [work contract] in November 2016.
·     In May 2017, [the applicant uncle] received an anonymous threatening phone call from the Taliban saying he and [the applicant nephew] should hand themselves over or be killed so that people know the power of the Taliban. [The applicant uncle]’s family also said they had received warnings from the Taliban and they told [the applicant uncle] to leave Pakistan for his safety. In June 2017, [the applicant uncle] got a new [work contract] and departed Pakistan.
·     [The applicant uncle]’s brothers in Pakistan were, and remain, active supporters of the Awami National Party (ANP). The ANP has a strong Pashtun support base and is strongly anti-Taliban. While in Pakistan, [the applicant uncle] was a member and a supporter of the ANP. He used to campaign for the party and assist during elections. He would go from village to village and door to door in the local area telling people about the ANP and encouraging them to vote for the ANP.
[The applicant uncles]’s current family circumstances in Pakistan
In his Statutory Declaration and in the Tribunal hearing, [the applicant uncle] gave evidence that two of his brothers still live in [Village 1] but they do not live in the family home. [The applicant uncle]’s wife and children live in [Village 2][1] with his wife’s parents. In the Tribunal hearing, [the applicant uncle] gave evidence that his father has passed away since [the applicant uncle] has been in Australia. [The applicant uncle]’s children are aged between [Age] and [Age] and attend school. They live in [Village 2] with [the applicant uncle]’s wife and her mother and brother. They moved there after [the applicant uncle] left Pakistan because he was worried that if they stayed in [Village 1], they might have problems or be in danger from the Taliban people who were looking for him, as some of those people are from his village. His wife and children have not been personally threatened since living in [Village 2].
[1] According to Google Maps, [Village 2] is in the Swat valley around [Distance]km from [Village 1] [Google maps reference]C:\doc-conversion\inputToHtml\D
[The applicant uncle] gave evidence that if he returned to live in Pakistan, he would live with his family in [Village 2], but he does not think he would be safe there or anywhere else. He fears the Taliban would find him through their networks and target him.
The Tribunal accepts [the applicant uncle]’s evidence about his family’s current circumstances and finds that if he returned to Pakistan, he would return to live in [Village 2] with his wife and children.
[The applicant uncle] thinks that the reason two of his brothers are still able to live in [Village 1] and have not been harmed is because they did not have dealings with the Taliban like [the applicants] did. He says that the Taliban have a particular problem with him and his nephew because of their actions in Pakistan and the damage they personally did to the Taliban in their area and the Taliban have long memories and do not forgive.
[The applicant uncle]’s activities in Australia and his beliefs
In the hearing, [the applicant uncle] gave evidence about his views on the Taliban. He said they are cruel people who have committed all sorts of atrocities, including killing and beheading people. If he returned to Pakistan he would continue to express his anti-Taliban views, just like he does in Australia. In Australia, he tells people he meets and youngsters from his area of Pakistan who were not there at the time about how the Taliban treated people who were against them and how bad they were. He tells stories to everyone. If he returned to Pakistan, whenever he had the chance he would talk to anyone he comes across, whether he knows them or not, and tell them how bad the Taliban are.
In the hearing, [the applicant uncle] gave evidence about his personal political beliefs and involvement in politics. He gave evidence that he joined the ANP because his eldest brother joined and his entire family were supporters. The ANP believes in helping the Pashtun people with their needs and solving their problems. He was attracted to the party because they helped with solving problems in the area relating to things such as the streets, water and electricity. When campaigning, he would tell people that the ANP is a party for Pashtuns, he believes it has done good work for Pashtuns, the people in the party are good people and they should support it. [The applicant uncle] thinks he participated in two election campaigns helping the ANP when he was not [working] but he can’t remember the years. He gave evidence that there is an ANP group in Australia which is made up of people from his area in Pakistan. It meets from time to time at a person’s house and he and his nephew attend the meetings. Because of his memory issues he can’t remember much about what they discuss.
[The applicant uncle] gave evidence that he would involve himself with the ANP and politics if he returned to Pakistan. He would campaign for the ANP like he did in the past because he has a long connection with the party and it does a lot of good for his people.
In the hearing, [the applicant uncle] gave evidence that if he returned to Pakistan and there was a VDC in the place he was living, then he would definitely involve himself again because the VDC is against the Taliban.
The Tribunal accepts that [the applicant uncle] has long held, and continues to hold, strong anti-Taliban views which he expresses privately and publicly and that he would continue to do so if he returned to Pakistan. The Tribunal accepts that [the applicant uncle] was actively involved with the ANP when he was in Pakistan as a member and supporter, that he maintains an involvement and interest in Australia which is limited by his circumstances, and that he would involve himself again with the ANP if he returned to Pakistan in the same way that he was involved in the past, helping to promote the party in his area, particularly during election campaigns. The Tribunal also accepts that [the applicant uncle] would involve himself again with a VDC if there is an active organisation in his area, because this is action he can personally take against the Taliban and he is motivated to do so.
[The applicant uncles]’s physical and mental health
[The applicant uncle] has provided medical evidence to the Tribunal about his physical and mental health issues. This evidence is helpfully summarised in a report dated 4 July 2024 from [Mr B], who is [the applicant uncle]’s treating Consultant Psychologist and who has been treating [the applicant uncle] since 2019.
[Mr B] explains that [the applicant uncle] is on a range of medication for persistent migraines and symptoms of depression. He experiences a range of physical symptoms such as poor sleep, migraines, low concentration at work and anxiety-related symptoms including hypervigilance. In 2020, [the applicant uncle] was involved in a car accident in the course of his [work]. He experienced a seizure and was unconscious for 36 hours. As a result of this accident, he has experienced back pain, headaches and memory issues. Follow-up neurological investigations suggest that his memory recall issues stem from his Post-Traumatic Stress Disorder (PTSD) and exposure to trauma rather than brain damage. Psychological tests administered to [the applicant uncle] indicate that he experiences clinically significant, severe levels of depression, anxiety and stress and continues to fear for his life due to events in Pakistan. All these issues negatively affect his ability to function in his daily life and work. In [Mr B]’s opinion, if [the applicant uncle] returns to Pakistan, his prognosis is poor and without family support he would have difficulty operating on a day-to-day basis. Even with family support, his PTSD symptomology will be exacerbated.

In his Statutory Declaration, [the applicant uncle] explains that he is concerned that his mental health difficulties will create problems for him if he has to return to Pakistan. He relies on the treatment he receives in Australia and he fears that his mental health would deteriorate if he returned to Pakistan. He has no friends or family outside Swat in Pakistan and so has no support elsewhere. He could not return to his [job] because he [left] and he thinks it would be difficult for him to find work and survive if he had to move to another part of Pakistan away from his family.
The Tribunal accepts the medical evidence about [the applicant uncle]’s physical and mental health. Despite [the applicant uncle]’s memory and mental health issues, he was able to give coherent and meaningful evidence about aspects of his claims in the hearing in response to questions from the Tribunal, as referred to above.
Evidence before the Department and Tribunal – [the applicant nephew]
[The applicant nephew]’s evidence about his claims for protection
[The applicant nephew]’s original claims for protection are contained in a written statement attached to his protection visa application form. He provided consistent information to the delegate in his interview in 2019 as well as elaborating on aspects of his claims. The delegate found [the applicant nephew] to be credible and accepted his evidence about events in Pakistan, but found that since he departed Pakistan the security situation in his area had improved to the extent that he would not face a real chance of persecution there now or in the reasonably foreseeable future. [The applicant nephew] provided further consistent information in his Statutory Declaration dated 15 December 2023 (Statutory Declaration) and his oral evidence in the Tribunal hearing.
The Tribunal considers the evidence provided by [the applicant nephew] about his circumstances both in Pakistan and in Australia to be credible. [The applicant nephew] has given consistent evidence over time, both in writing and orally, about the events in question. Despite his mental health issues, which are referred to in more detail below, his oral evidence in the hearing was direct, detailed and coherent and the Tribunal found it to be persuasive. The Tribunal does not consider that he was attempting to embellish or exaggerate his claims and the Tribunal was persuaded by the strength and firmness of his evidence relating to his anti-Taliban views and actions.
Having considered the evidence about [the applicant nephew]’s mental health issues, in the hearing the Tribunal made a particular effort to keep the questions it asked [the applicant nephew] as focussed and straightforward as possible, and to minimise the number of questions it asked him. The Tribunal also took into account the former AAT Migration and Refugee Division Guidelines on Vulnerable Persons.
Events in Pakistan
Based on the evidence provided to the Department and Tribunal by [the applicant nephew], the Tribunal accepts his claims about events in Pakistan that led to him applying for a protection visa. His claims are essentially the same as those of his uncle, [the applicant uncle] above, with the following additional or different information:
·     In 2009, when the family started taking it in turns to stay awake at night to safeguard their homes in [Village 1] after approaches from the Taliban, [the applicant nephew] took his turn. It was hard for him to stay awake at night doing this and to study during the day.
·     Despite the army’s efforts in 2009 to drive the Taliban out of the area, once the residents were allowed to return to their houses some Taliban members also returned and started attacking people again. [The applicants] joined the VDC. The Taliban especially attacked people who were involved with the VDCs and who had not provided them with assistance when they demanded it. [The applicant nephew] and his family continued assisting the VDC and the Pakistani forces to help return peace. His family advised him to go to Karachi to study and be out of sight of the Taliban.
·     [The applicant nephew] personally did not have much contact with the Taliban during this time, but things changed in 2012 and the risk to him increased.
·     In early 2012, [the applicant nephew] was in [Village 1] when he saw two Taliban enter the village. He knew them from before the military operation and knew the location of their houses. He informed the army unit stationed near [Village 1] and the army arrested both of the men. The army and VDC appreciated his family’s efforts and personally praised [the applicant nephew] to encourage others to follow his actions, but after this, the Taliban learned of his identity and he received threatening phone calls from the Taliban saying they would take revenge.
·     When [the applicant nephew] returned to his village in between [contracts], he tried to keep a low profile but remained involved with the VDC. The army was relatively effective in holding off the Taliban during this time. Many of the Taliban were local people who had been radicalised, rather than foreign fighters.
·     Since the peace restoration, people continued to do night watch in the village. One night, in August 2016 when [the applicant nephew] was on duty near his house, he heard footsteps and saw people coming towards his home. He realised they were unknown men and so he blew a whistle to alert the other people on night watch who fired guns in the air. The people escaped before the security forces arrived and were never found. [The applicant nephew] thinks they were planning to attack his house, and possibly him personally.
·     After this, [the applicant nephew]’s father suggested he go to Karachi and get a new [contract]. [The applicant nephew] did this and was offered a new contract in November 2016 and left Pakistan. [The applicant nephew]’s son was born after he left Pakistan.
·     In May 2017, [the applicant uncle] received phone threats from the Taliban who said they were going to teach him and [the applicant nephew] a lesson because of their collaboration with the army. After this, [the applicant uncle] also decided to seek a new [contract] and left Pakistan.
·     After arriving in Australia, [the applicant nephew] told his wife to go and live in [Town] for her safety with her parents to distance her and their son from his father’s side of the family in [Village 1].
·     [The applicant nephew]’s family were, and still are, strong supporters of the ANP and he followed them in this. The ANP stands strongly against the Taliban. [The applicants] and other family members campaigned for the ANP during elections. [The applicant nephew] was involved in 2008 and 2013, going door to door to encourage people to support the ANP. He also helped transport people to rallies and polling booths.
[The applicant nephew]’s current family circumstances in Pakistan
In his Statutory Declaration and oral evidence to the Tribunal, [the applicant nephew] gave evidence about his family’s circumstances in Pakistan. He is married and has an [Age]-year-old son who has a disability and cannot walk or talk. While his son does not have a formal diagnosis, doctors have suggested he has cerebral palsy. [The applicant nephew] has provided documents to the Tribunal support this.
Since around the time [the applicant nephew] came to Australia, his wife, son, parents and siblings have lived in the village of [Town], which is about [Distance] km from [Village 1].[2] They live with his maternal grandparents (the parents of his mother). They have not had any problems since living in this place but they do not spend a lot of time outside the house.
[2] See Google Maps [reference]C:\doc-conversion\inputToHtml\D
[The applicant nephew] is worried that the Taliban might try to take revenge on his family because of his actions in the past. He thinks that his uncles who still live in [Village 1] have not been targeted because they did not play a role like he did in harming the Taliban by pointing out Taliban members and their houses which led to Taliban being arrested and maybe killed and their houses destroyed.
In the hearing, [the applicant nephew] gave evidence that if he returned to live in Pakistan, he would return to live in [Village 1], where he thinks he is likely to be killed. He would return to live in his old home because he does not think anyone else would support him and he doesn’t have anywhere to hide. He agreed that his family in Pakistan are currently living in [Town], but said they are a burden on his grandparents and he doesn’t want to increase the burden on them. He said that wherever he lives, it will be hard for him and the Taliban will find him. He doesn’t know what work he would be able to do.
The Tribunal accepts [the applicant nephew]’s evidence about his family’s current circumstances and finds that if he returned to Pakistan, he would either live with his family in his former family home in [Village 1] or with his family in [Town] village. For the reasons explained below, where [the applicant nephew] returns to live does not make any difference to the Tribunal’s findings.
[The applicant nephew]’s activities in Australia and his beliefs
In the hearing, [the applicant nephew] gave evidence about his views on the Taliban. He said he considers the Taliban to be like a form of cancer which cannot be left uncured. They need to treat it, and he will do his best to be against the Taliban in any way he can, even if it leads to his death. He would definitely express his opinion about the Taliban to people if he returned to Pakistan. He would tell people about the Taliban’s inhuman treatment of people in the past and the atrocities they have committed, he would tell people the Taliban are not worthy of sympathy, they don’t want girls to be educated and they punish people for things like singing which was banned in the past. He would tell anyone in society about this, particularly if they are not aware, and he would try his best to spread the message. He expects the Taliban would kill him if he did this and remarked that they have already said they will kill him, so he will do what he can.
In the hearing, [the applicant nephew] gave evidence about his personal beliefs and involvement in politics. He explained that the ANP is the party of Pashtuns and promotes the rights of Pashtuns. Other groups in Pakistan have their own parties and the ANP is for Pashtuns. [The applicant nephew] thinks the ANP has done a lot for Pashtuns in his area, including development. He joined the party following other more senior family members. He explained that his is a big family and provides support to the ANP and so the ANP provides his family with some support in return. His family members in Pakistan remain members of the ANP and participate in election campaigns. There is not a big difference between being a member or a supporter of the party in terms of what a person does. In Pakistan, [the applicant nephew] went door to door during election campaigns telling people why the ANP was good for Pashtuns and helping to convince people in his area to work for the party and bring it to power. In addition, he encouraged friends to get involved, he used his vehicle to transport voters to polling stations, helped set up polling places and erected banners, and did everything he could to support the ANP.
In Australia, [the applicant nephew] is part of a group in Sydney who support the ANP. They tried to set up an ‘app’ for people to register as members but it isn’t functioning yet. The group communicates via [social media] and holds gatherings, including this coming weekend when there is an event to hear some singers from their area of Pakistan. They meet to chat once or twice a month and nobody has a particular role in the group. [The applicant nephew] gave evidence that he would definitely get involved with the ANP again if he returned to Pakistan. He would do the same types of activities as he did before, and more if he could. He wants to play his role and raise his voice for the betterment of his people.
For the last year or more, [the applicant nephew] has been [an Official position] of the [Organisation] in Sydney. He explained that this is a Pashtun community group whose purpose is for members to support and help each other and to support new migrants to Australia, to give them information about things like the laws and rules so they don’t have problems here. They meet regularly and also encourage people to join the ANP group. He provided a copy of the Minutes from one of the meetings and some photographs of him and his uncle at meetings with other men.
[The applicant nephew] gave evidence that if he returned to live in [Village 1], he would definitely rejoin the VDC because it is against the Taliban. He does not know if there is a VDC in [Town] because he does not have connections there, but if he lived there he would join a VDC if he were able. He will involve himself and be with anyone who is against the Taliban.
The Tribunal accepts that [the applicant nephew] has long held, and continues to hold, strong anti-Taliban views which he expresses privately and publicly and that he would continue to do so if he returned to Pakistan. The Tribunal accepts that [the applicant nephew] was actively involved with the ANP when he was in Pakistan as a member and supporter, that he maintains an active involvement and interest in Australia, and that he would involve himself again with the ANP if he returned to Pakistan to at least the same level that he was involved in the past, and perhaps more. The Tribunal accepts that he is interested in promoting the welfare of Pashtuns both in Pakistan and Australia, as demonstrated by his involvement with the [Organisation], which reinforces his pro-Pashtun and anti-Taliban views. The Tribunal also accepts that [the applicant nephew] would involve himself again with a VDC if he returned to Pakistan because he is motivated to continue to take action against the Taliban who he believes should be driven out of his area of Pakistan.
[The applicant nephew]’s mental health
[The applicant nephew] has provided evidence to the Tribunal about his mental health issues, most recently in a letter dated 20 June 2024 from his treating psychologist, [Mr C] of [Psychology practice] in Sydney. [Mr C] explains that he has been seeing [the applicant nephew] on an approximately fortnightly basis since 2019.
In the hearing, [the applicant nephew] said that the Taliban has harmed his life in the past and continues to cause problems for him. He suffers a lot of stress and anxiety, as well as other health problems, and he thinks about his situation all the time.
[Mr C] states that [the applicant nephew] experiences symptoms consistent with Post-Traumatic Stress Disorder, including nightmares, flashbacks, intrusive memories, as well as other psychological and physical symptoms consistent with severe depression, anxiety and stress. This affects his occupational and social functioning, including hindering his social ability, interpersonal skills and emotional regulation skills, as well as making it difficult for him to stay focused and motivated in his work. In [Mr C]’s opinion, a return to Pakistan would place [the applicant nephew] at risk of psychological deterioration and increase his risk of comorbid illnesses such as social phobia, agoraphobia, psychosis and the risk of self-harm. He may be psychologically unfit to work. The lack of support services available in Pakistan would likely further increase the risks. [The applicant nephew] is receiving both psychological and pharmacological (medication) treatment for his conditions, as described by [Mr C].
In his Statutory Declaration, [the applicant nephew] explains that he has struggled with his mental health since being in Australia even though he is safe here. He is constantly worried about the safety of his family in Pakistan, as well as the situation for his disabled son. He is concerned about discrimination against Pashtuns in other parts of Pakistan and he has no family or friends outside the Swat valley. He would not be able to access the psychological help he needs and there is discrimination in Pakistan against people with mental health issues, so he is worried that his situation would deteriorate and he may not be able to survive. It would also be impossible for him to relocate with his family outside the Swat valley because of his son’s disability and the various challenges that would pose from both a social and financial perspective.
The Tribunal accepts the medical evidence about [the applicant nephew]’s mental health. Despite [the applicant nephew]’s mental health issues, he was able to give detailed, coherent and meaningful evidence about aspects of his claims in the hearing in response to questions from the Tribunal, as referred to above.
Supporting evidence and written submissions – [the applicants]
[The applicants] have jointly provided supporting evidence about their activities in Pakistan and Australia. This evidence includes, relevantly:
·     Photographs showing their involvement with the ANP and [Organisation] groups in Sydney;
·     Statutory Declaration of [Mr D] of [Village 1] dated 23 April 2024, explaining that he has known both [the applicants] for a very long time. He says they were active members of the ANP in the area, door knocking and campaigning for the ANP during elections. He also says they were active members of the VDC, including attending meetings, participating in patrols, arranging rosters and liaising with the army because they both speak Urdu which is the language of most of the soldiers. He is aware that they both identified Taliban members to the army and that they received threats as a result. He says they were both much more involved in these activities in the past than he was. He continues to fear for his own and his family’s safety in [Village 1] because of the Taliban presence.
·     Statutory Declaration of [Mr E] of [Village 1] dated 23 April 2024, explaining that he is a nephew of [the applicant uncle] and a cousin of [the applicant nephew]. He says that [the applicant uncle], and later [the applicant nephew], both actively supported the ANP during election periods and that they were both involved with the VDC, doing night watches and identifying Taliban members to the army. He remembers being told by his family that both men had received threats. He continues to fear for his and his family’s safety in [Village 1] because of the Taliban presence.
·     Letter (with certified English translation) dated 17 June 2021 from Vice Chairman [Mr F] of the VDC for [Union Council] (which includes [Village 1]) confirming that [the applicants] were regular members of the VDC from 2009 to 2016, they supported the Pakistani army, provided assistance including night patrols, organising meetings and identifying terrorists. Due to their actions, the terrorists want to target them.
·     Letter (with certified English translation) dated 25 November 2021 from [Mr G], Member Provincial Assembly, KPK, confirming that [the applicants] and their family members have been long-term members of the ANP.
·     Reports from their treating psychologists about their mental health, as referred to above.
·     Additional information about the current circumstances of their families in Pakistan.
The Tribunal notes the Statutory Declarations and the letters of support from Pakistan have been written in support of [the applicants] for the purposes of their protection visa applications and therefore may cast their past activities in the most beneficial light, as well as not distinguishing between their specific individual activities and involvement. However, the Tribunal finds the content to be broadly consistent with the evidence of [the applicants] themselves, which the Tribunal accepts, and so the Tribunal finds these documents lend weight to the applicants’ claims.
Pre-hearing written submissions

On 16 July 2024, the applicants’ representative provided extensive joint written submissions to the Tribunal in support of the applicants’ cases. These written submissions cover the following matters:
·     background to the applicants’ claims, including their personal history, involvement with the ANP, the VDC and threats from the Taliban;
·     legal submissions on why the applicants have a well-founded fear of persecution due to their membership of various particular social groups and their actual and/or imputed political opinion;
·     extensive country information about the security situation in Pakistan as a whole and in Swat more specifically, including a bundle of social media articles about Taliban threats in the Swat valley;
·     submissions on the absence of effective state protection;
·     submissions on the inability of the applicants to relocate within Pakistan;
·     submissions on why the applicants meet the complementary protection criterion and why it would not be reasonable for them to relocate within Pakistan.
The Tribunal was assisted by these submissions and the written evidence provided. Where relevant, the Tribunal has referred to the detail of these materials and the country information below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
ANALYSIS, REASONS AND FINDINGS
The issue in this case is whether each of the applicants is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decisions under review should be set aside and remitted for reconsideration.
In the hearing, the applicants both gave evidence that they have had a migration agent or lawyer helping them since they lodged their protection visa applications and that all the information they have provided is true and correct.
As referred to above, in light of the extensive written material provided by the applicants and their mental health issues the Tribunal confined its questions as much as possible. As also referred to above, the Tribunal found the applicants to be credible witnesses and accepts their evidence set out above about past events and activities in Pakistan and their current activities, political opinions and circumstances in Australia.
Pursuant to s 367A, the Tribunal has considered the fact that the applicants did not raise their claim or present evidence about their involvement with the ANP before the delegate’s decision was made and only raised this for the first time in their Statutory Declarations. The Tribunal asked the applicants about this in the hearing. [The applicant uncle] explained that when he and [the applicant nephew] arrived in Australia, they were put in immigration detention which was difficult as they had never been in jail. He didn’t include his claim about involvement with the ANP because he was under pressure and stress at the time and didn’t realise it was relevant. [The applicant nephew] provided a similar explanation. The Tribunal has considered the applicants’ explanations. Considering the short period of time between the applicants arriving in Australia and lodging their protection visa applications, the fact they were in immigration detention at this time, the fact that documents on the Departmental file show their migration agent was located in another state and apparently gave them limited assistance between the time they lodged their applications and attended the delegate’s interview, the Tribunal is satisfied that the applicants have a reasonable explanation for why this claim was not raised and evidence was not presented before the delegate’s decision was made. Therefore, the Tribunal does not draw an inference unfavourable to the credibility of this claim and the evidence. As noted above, the Tribunal accepts the applicants’ claims and evidence about their past and ongoing involvement with the ANP and their political opinions more broadly and found the evidence they gave about this in the hearing to be credible.
Do [the applicants] satisfy the refugee criterion for protection?
Based on the Tribunal’s findings above, the Tribunal finds that if [the applicant uncle] returned to Pakistan in the reasonably foreseeable future, his cumulative profile would be as follows:
·     a married, Sunni, Pashtun man of working age with four dependent children;
·     who was actively involved with the VDC in [Village 1] in the past and who would involve himself again with a VDC in his community if practicable;
·     who personally took action in the past which led to the Taliban suffering damage and this was, and still is, known to members or supporters of the Taliban in the area where he lived;
·     who actively supported the ANP in his local area and whose extended family are known as active ANP supporters in the area;
·     who has continued his support for, and interest in, the activities of the ANP while in Australia and who would involve himself again with the ANP if he returned to Pakistan in the same way he did before;
·     who held, and continues to hold, strong anti-Taliban views which he has continued to express publicly over many years would continue to express publicly if he returned to Pakistan both through his words and actions;
·     who has skills but suffers from serious mental health issues that would make it difficult for him to function without support from family or relatives;
·     who still has very close relatives living in his home [village] and nearby towns in the Swat valley;
·     who would return to live in [Village 2] in the Swat valley with his family in Pakistan.
[The applicant uncle] claims that due to his actions against the Taliban in the past, including refusing them access to his property in the village, his involvement with the VDC, the fact that he personally provided information to the Pakistani security forces which caused damage to the Taliban, including property loss, arrests and possibly death of Taliban members, as well as his active support for the ANP, the Taliban want revenge on him. He fears they will kill him if he returns to Pakistan. He claims he cannot relocate within Pakistan because the Taliban have networks which mean they will be able to find him wherever he goes, he does not have any friends or family outside Swat and he fears he would not be able to find work to survive. The Pakistani security forces cannot protect him as he is an ordinary person and they do not have the resources.
Based on the Tribunal’s findings above, the Tribunal finds that if [the applicant nephew] returned to Pakistan in the reasonably foreseeable future, his cumulative profile would be as follows:
·     a married, Sunni, Pashtun man of working age who has a young, disabled son;
·     who was actively involved with the VDC in [Village 1] in the past and who would involve himself again with a VDC in his community;
·     who personally took action in the past which led to the Taliban suffering damage and this was, and still is, known to members or supporters of the Taliban in the area where he lived;
·     who actively supported the ANP in his local area and whose extended family are known as active ANP supporters in the area;
·     who has continued his support for, and interest in, the activities of the ANP while in Australia and who would involve himself again with the ANP if he returned to Pakistan in at least the same way as he did before;
·     who held, and continues to hold, strong anti-Taliban views which he has continued to express publicly over many years would continue to express publicly if he returned to Pakistan both through his words and actions;
·     who has skills but suffers from serious mental health issues that would make it difficult for him to function without support from family or relatives;
·     who still has very close relatives living in his home [village] and nearby towns in the Swat valley;
·     who would return to live in [Village 1] or [Town] in the Swat valley with his family in Pakistan.
[The applicant nephew] claims that due to his actions against the Taliban in the past, including that he personally provided information to the Pakistani security forces which caused damage to the Taliban, including property loss, arrests and possibly death of Taliban members, his involvement with the VDC, as well as his active support for the ANP, the Taliban want revenge on him. He fears they will kill him if he returns to Pakistan. He claims he cannot relocate within Pakistan because the Taliban have networks which mean they will be able to find him wherever he goes, he does not have any friends or family outside Swat, he would be discriminated against as a Pashtun, he could not move his family to live elsewhere in Pakistan particularly due to his disabled son, and he fears he would not be able to find work and survive financially. The Pakistani security forces cannot protect him as he is an ordinary person and they do not have the resources.
In considering whether [the applicant uncle] would face a real chance of serious harm if he returned to live in [Village 2] in the Swat valley, the Tribunal has considered [the applicant uncle]’s cumulative profile in the context of relevant country information about the situation in Pakistan.
In considering whether [the applicant nephew] would face a real chance of serious harm if he returned to live in [Village 1] or [Town] in the Swat valley, the Tribunal has considered [the applicant nephew]’s cumulative profile in the context of relevant country information about the situation in Pakistan.
The current DFAT Country Information Report Pakistan[3] states about domestic jihadist groups:
2.39 The most prominent is the Tehreek-e-Taliban Pakistan (TTP), an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
2.40 TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have re-pledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.
[3] 25 January 2022 (DFAT Report).
While the applicants have referred in their evidence and submissions to ‘the Taliban’, based on the country information, the Tribunal finds that the particular group they are referring to is the TTP, although in many sources the names are used interchangeably. News articles and commentary describe the history of the deterioration of the security situation in the Swat valley since around 2007 when the TTP first began launching attacks on the army and police. In 2009, a peace agreement was reached with the TTP which they violated, committing atrocities and ended up controlling up to 70% of the territory in the area. In May 2009, there was enormous displacement of the population to make way for a military operation, followed by another operation in 2014, and an uncertain and fragile situation has largely existed in the region since that time. The effect of this has been many civilian casualties, destruction of local infrastructure, damage to the local tourism industry and a damaging effect on the local economy more broadly.[4] There was a brief period of stability after 2017 but this ended after the fall of Kabul, Afghanistan in 2021 to the Afghan Taliban which led to the regrouping of the TTP.[5] Since that time, peace rallies, particularly in KPK, have been held against terrorism. The country information referred to supports the applicants’ claims about events in Pakistan prior to their departure.
[4] Connecting the dots: What really went down in Swat, Fazal Khaliq, 24 October 2022 Swat’s Sacrifice: Chronicles of Offerings In Vain, Rifatullah Orakzai, 29 August 2021 (accessed 15 November 2024)
[5] (accessed 15 November 2024); (accessed 15 November 2024)
In addition to the DFAT Report, the Tribunal has considered more recent country information about the security situation in the Swat valley and KPK and the activities of the TTP. An October 2024 article from the Friday Times[6] reports that in the third quarter of 2024, Pakistan experienced its most violent period of the year, with a sharp increase in terrorism leading to loss of life amongst civilians, security personnel and militants, as well as injuries. The fatalities occurred almost entirely in KPK and Balochistan provinces. The article states that the surge in terrorism comes despite the Pakistan military’s intensified anti-terror operations and it has significantly impacted the state’s control in KPK and Balochistan. The article cites figures from the Pakistan Centre for Research and Security Studies (CRSS) published in its Overview of Pakistan’s Security Landscape in Q3 2024.[7] This increasing trend in attacks in KPK is also supported by recent figures from the Pakistan Institute for Conflict and Security Studies (PICSS).[8] The Friday Times article reports that locals in KPK, including in Swat, are rallying to voice their concerns about the worsening security situation and, meanwhile, militant groups are reorganising and bolstering their numbers, including a growing number of factions aligned with the TTP. The ANP Central President has expressed concern that nearly half of KPK lies outside the effective control of local police.
[6] (accessed 15 November 2024)
[7] (accessed 15 November 2024)
[8] (accessed 15 November 2024)
A July 2024 article in The Diplomat[9] discusses the Pakistan federal government’s plan to launch a new military operation to counter the increase in terrorist activity, and protests against this in KPK. The TTP reportedly announced a counter-operation in response to the government’s announcement, aiming to increase its attacks in Pakistan. The article refers to the suffering of Pashtun locals in KPK during past military operations and their fears of the same thing happening again. ANP leaders have criticised the plan and suggested that any operation should be launched in Punjab province where religious extremism is deep-rooted and widespread, as well as the fact that there was no consultation before the announcement. The article states that Pashtuns are resisting military adventurism and the resulting destruction of their land, and opposition by Pashtuns all over Pakistan to military action is expanding, spurred on by the Pashtun Tahafuz Movement (PTM).[10]
[9] (accessed 15 November 2024)
[10] See also (accessed 15 November 2024)
The 2019 DFAT Country Information Report Pakistan[11] explains that outside large urban centres, Pakistanis tend to live in ethnically homogenous communities. Pashtuns form the second largest ethnic group in Pakistan at around 15.4% of the population. The current DFAT Country Information Report Pakistan[12] states about Pashtuns:
3.13 The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair-skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns may also wear distinctive clothing, such as the red-and-black ‘Pashteen hat’, which has reportedly become a symbol of the Pashtun Tahafuz Movement (PTM). Pashtun culture emphasises tribal and family relations, as well as customary norms known as Pashtunwali. Pashtuns speak an Eastern Iranian language called Pashto. Most, but not all, follow Sunni Islam (see Turis, Bangash).
3.14 There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
…
3.17 Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs[13] when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan.
3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns (see Turis, Bangash).
[11] 20 February 2019 (2019 DFAT Report)
[12] 25 January 2022 (DFAT Report).
[13] CNIC is a Computerised National Identity Card. See DFAT Report 5.32 – 5.33.

In relation to the ANP, the DFAT Report states:
3.73 The Awami National Party (ANP) is a secular Pashtun nationalist political party. It was formed in 1986 and enjoys strong support in Khyber Pakhtunkhwa and Balochistan. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government. Since 2018, ANP members have participated in large-scale demonstrations led by the PTM against human rights abuses against Pashtuns in the tribal regions of Pakistan.
3.74 The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and work to improve the Pakistan-Afghanistan bilateral relationship. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded 69 and killed at least 20, including prominent ANP politician Haroon Bilour. In June 2019, the Peshawar city district president of ANP, Sartaj Khan, was gunned down in Gulbahar, Khyber Pakhtunkhwa. The ANP was also the target of TTP attacks ahead of the May 2013 elections. While security operations have weakened the TTP in recent years, they retain the capacity and intent to target ANP members and leadership (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.
News articles refer to ANP leaders and workers being targeted by the Taliban, which is consistent with the applicants’ claims.[14] More recent articles indicate that the ANP and its supporters, as well as other groups, continue to mobilise and protest in the Swat valley against a resurgence of the TTP and the inability of the security forces to bring the situation under control and provide security.[15]
[14] (accessed 15 November 2024)
[15] (accessed 15 November 2024)
In relation to VDCs or ‘peace committees’ the DFAT Report states:
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.
Media articles and the South Asia Terrorism Portal have reported over recent years on current and former members of VDCs or peace committees being targeted in the Swat valley. These sources indicate that the TTP has claimed responsibility for at least some of these attacks and has stated that the person was targeted because they had actively mobilised people against the TTP.[16] Some of the reports indicate that the TTP has taken action against former VDC members or leaders who had ceased their involvement years prior, which supports the applicants’ claimed fears that members of the TTP would still wish to harm them if they returned to Pakistan despite their involvement with the VDC ceasing some years ago.
[16] (accessed 15 November 2024)
The Tribunal has accepted the applicants’ claims about events in Pakistan from 2008 to 2017 that led to their eventual departure. The Tribunal accepts that it is the TTP that has been operating in the Swat valley since around 2008 and it is members of that group, including local people from the applicants’ area who joined the TTP, who are the people that threatened the applicants because of their actions against them.
The Tribunal accepts that the TTP has maintained a presence in KPK, including the Swat valley, since the applicants’ departures and it is prepared to accept that some of the same TTP members or supporters who were aware of the applicants’ actions in the past would still be in the area and involved with the TTP and would still be motivated to harm the applicants out of revenge. The Tribunal has accepted that both applicants would involve themselves again actively supporting the ANP and joining a VDC in their local area if there is the opportunity to do so, as they did in the past. The Tribunal has also accepted that both of the applicants would continue to speak out publicly against the TTP or Taliban more generally when given the opportunity.
In light of the above, based on the Tribunal’s findings about [the applicant uncle]’s profile and the country information referred to above, the Tribunal accepts there is a real chance that as a result of [the applicant uncle]’s activities on return, his presence in the local area would become known to TTP members and there is a real chance that he would face serious harm from the TTP as a result of his actual and perceived anti-TTP (and general anti-Taliban) political opinion. Therefore, the Tribunal finds that [the applicant uncle] would face a real chance of serious harm for this reason if he returned to [Village 2] or any other area within the Swat valley or KPK in the reasonably foreseeable future.
In light of the above, based on the Tribunal’s findings about [the applicant nephew]’s profile and the country information referred to above, the Tribunal accepts there is a real chance that as a result of [the applicant nephew]’s activities on return, his presence in the area would become known to TTP members and there is a real chance that he would face serious harm from the TTP as a result of his actual and perceived anti-TTP (and general anti-Taliban) political opinion. Therefore, the Tribunal finds that [the applicant nephew] would face a real chance of serious harm for this reason if he returned to [Village 1] or [Town] or any other area within the Swat valley or KPK in the reasonably foreseeable future.
Under s 5J(1)(c) of the Act, a person only has a well-founded fear of persecution if the real chance of persecution relates to all areas of a receiving country. The task of the Tribunal in this regard is to consider whether there are areas of the country where “there is safe human habitation and to which safe access is lawfully possible”[17] and if an applicant resided there whether they would face a real chance of persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion. The “areas of a receiving country” to be considered under this sub-section do not include places that are “unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work”.[18] Consideration under s 5J(1)(c) does not include a criterion of reasonableness, which is in contrast to the consideration required under the complementary protection criterion which specifically requires consideration of the reasonableness of relocation within a receiving country under s 36(2B)(a).[19]
[17] FCS17 v Minister for Home Affairs [2020] FCAFC 68
[18] FCS17 v Minister for Home Affairs [2020] FCAFC 68, [80].
[19] FCS17 v Minister for Home Affairs [2020] FCAFC 68, [81]. For what the consideration of reasonableness may include, see MZANX v Minister for Immigration and Border Protection [2017] FCA 307 per Mortimer J.
The DFAT Report states in relation to internal relocation within Pakistan that:
5.23 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate (see Women). For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later (see Women). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.
This is consistent with information contained in the recent Netherlands General Country of Origin Information Report on Pakistan, July 2024 (Netherlands COI Report).[20] That Report states that the ability to move to another part of Pakistan to evade threats from fanatical Islamist groups and armed groups, such as the TTP, depends on a person’s individual circumstances.[21]
[20]
[21] At 3.1.3.
The Tribunal has considered the security situation in Pakistan more broadly than just in KPK. The DFAT Report notes that the security situation in Pakistan had improved over recent years, but since mid-2021 it has started to deteriorate again. DFAT states that causes of insecurity include ‘domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.’[22] During this time, terrorist attacks have increased, carried out by the TTP and other domestic jihadist groups. Current information on the Pak Institute for Peace Studies (PIPS) website which tracks terrorist events in real time and the PIPS Pakistan Security Report 2023 indicates that this overall upward trend is continuing.[23]
[22] DFAT Report 2.34.
[23] (accessed 15 November 2024); (accessed 15 November 2024)
The PICSS notes in an article from October 2024 that militant violence continues to increase, particularly in KPK and Balochistan but in other areas of Pakistan as well. The article states that other sources of unrest include the federal government attempting to ban the PTM,[24] widespread protests by members of the Pakistan Tehreek-e-Insaf (PTI) party against the government in Islamabad and Lahore, and a suicide bombing near Karachi directed at Chinese nationals which highlights the challenges in securing foreign investment in Pakistan. The PICSS assesses Pakistan’s security situation ‘remains precarious, marked by rising fatalities and shifting militant tactics.’[25] PIPS reports similar information about the expansion of militant outreach and influence across the country in late 2024, despite a proactive counterterrorism strategy by the military.[26] As noted above, there have been protests in different parts of Pakistan about the military action, particularly amongst Pashtuns. The CRSS assesses that the number of fatalities up to the third quarter of 2024 has already surpassed the total number for 2023 and civilian casualties and injuries have been high. The worst-affected provinces have been KPK and Balochistan, but there have also been incidents in Sindh and Punjab.[27]
[24] (accessed 15 November 2024)
[25] (accessed 15 November 2024)
[26] (accessed 15 November 2024)
[27] (accessed 15 November 2024)
In terms of the situation for Pashtuns in other parts of Pakistan, the country information referred to above indicates that Pashtuns are often identifiable by their appearance, dress and language. While they are represented at all levels of society in Pakistan, including in the transport sector and the security forces, ethnic stereotyping and the association of Pashtuns with the TTP has led to them facing official discrimination and ethnic profiling on suspicion of their involvement with terrorism, including at the highest levels. For example, in 2021, former Prime Minister Imran Khan claimed that many Pakistani Pashtuns support the Afghan Taliban due to their ethnic affiliation.[28] DFAT states that Pashtuns report frequent blocking of their CNICs when relocating which impedes access to property and assets. The DFAT Report assesses that outside KPK, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups, but the risk increases if they come to the attention of authorities for any reason, and that Pashtuns involved with the ANP face specific, heightened risks. The Netherlands COI Report states that according to one source, Pashtuns can face stigmatisation, stereotyping and discrimination everywhere in Pakistan except in KPK.[29]
[28] (accessed 15 November 2024)
[29] At 3.1.9.
DFAT states that Pashtun leaders and members of the PTM, which is a Pashtun human rights movement that opposes the Taliban and calls on the Pakistani government to end extrajudicial killings and enforced disappearances of Pashtuns, face a moderate to high risk of violence or enforced disappearance due to a perception of being ‘anti-state’.[30] In October 2024, the Pakistani government banned the PTM on the basis that it poses a threat to national sovereignty and security, but reports indicate that human rights groups see this as part of a larger crackdown on dissent, particularly given the group is known for its criticism of Pakistan’s military. Pakistani officials accuse the PTM of having ties to the Afghan Taliban and the TTP, which the group denies.[31] This action by the government has led to protests and clashes with police and the provincial government of KPK has urged the central government to revoke the ban.[32] The Tribunal has referred to country information above about Pashtuns in different parts of Pakistan protesting against renewed military action, which is separate from the protests relating to the PTM. While neither of the applicants have claimed to be affiliated with PTM, this country information suggests that in the current environment, official discrimination against Pashtuns in general may be expanding and this may feed into a broader official and societal suspicions about Pashtuns as a security threat.
[30] DFAT Report 3.79 – 3.82.
[31]
[32] (accessed 15 November 2024)
[The applicants] have given evidence that they have no family or networks outside the Swat valley, which is where they always resided in Pakistan amongst Pashtun people, apart from the short periods of time they resided in Karachi while waiting to [work]. The Tribunal accepts that neither of them has family or tribal networks in other parts of Pakistan that would help them establish themselves in a new location. The Tribunal has accepted that [the applicants] would actively involve themselves with the ANP if they returned to Pakistan as part of expressing their anti-TTP political opinion and the Tribunal is prepared to accept they may also associate themselves, or be perceived to be associated, with other Pashtun-led causes like those referred to above if they were living in other areas of Pakistan.
The Tribunal considers that [the applicants] lack the financial means to establish themselves elsewhere in Pakistan. While they both have skills due to their past and current employment and may be able to find work to support themselves, news articles indicate that inflation is high in Pakistan, with cost of living increases affecting the price of basic food and energy which is placing households under pressure and poverty has increased, particularly since the Covid-19 pandemic and the 2022 floods.[33] A July 2024 UK Home Office Country Policy and Information Note Pakistan: Internal relocation (UK Home Office Note) describes how Pakistan is disaster-prone and the 2022 floods damaged the economy, displaced millions of people and caused many workers to lose their jobs.[34] Further, it states ‘there is a shortage of formal housing in Pakistan which is said to be generally unaffordable. Half of all urban households are overcrowded or live in informal settlements with inadequate access to basic infrastructure and services. Tenant registration is mandatory and takes place at local police stations.’[35] As noted above, DFAT states that Pashtuns report frequent blocking of the CNICs when relocating which impedes access to property and assets. The same UK Home Office Note goes on to refer to a 2022 World Bank blog which stated that formal housing is out of reach of most of the population in Pakistan and mainly owned by men, and that urban population growth has not been matched by growth in housing which has resulted in housing shortages and the growth of slums.[36] The influx of Afghan refugees has made the housing situation worse both in terms of availability and cost.[37]
[33] (accessed 15 November 2024)
[34] At 4.
[35] At 2.1.6.
[36] At 3.4.2 – 3.4.3.
[37] (accessed 25 February 2024); (accessed 25 February 2024); UK Home Office Note, 4.1.1.
In the Tribunal’s view, the challenges [the applicants] are likely to face in other parts of Pakistan, including official and societal discrimination as a Pashtun, finding work and housing, and financial difficulties, would all be exacerbated by their serious mental health conditions, which would undermine their capacity to deal with the other challenges they are likely to face. The DFAT Report states that mental health disorders are common in Pakistan and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated. Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers.[38] The stigma attached to mental illness in Pakistan can be a major impediment to accessing treatment.[39] The Tribunal accepts the opinion of [the applicants’] treating psychologists that if they were to return to Pakistan, their prognosis is poor, they may be unfit for work and they would struggle to function on a day-to-day basis.
[38] DFAT Report 2.14
[39] 2m Karachiites suffer from mental, other disorders: Dr Haroon - Newspaper - DAWN.COM; ; (accessed 19 November 2024)

In light of the above discussion, the Tribunal finds that as a result of the applicants’ cumulative profiles and personal circumstances including their Pashtun ethnicity, their lack of family or tribal connections outside Swat, their active support for the ANP, and their serious mental health conditions, along with the country information referred to relating to the overall security and economic situation in Pakistan and the political unrest in the country including involving Pashtuns, the applicants face a real chance of persecution which relates to all areas of Pakistan.
The Tribunal notes that had it been necessary to go on to consider relocation under the complementary protection criterion, the Tribunal would have found that in light of the cumulative profile of each applicant, including their serious mental health issues and need for family support, it would not be reasonable for either of them to relocate to another area of Pakistan where there would not be a real risk that they will suffer significant harm.
In light of the above, and taking into account [the applicant uncle]’s cumulative profile, the Tribunal finds that he faces a real chance of persecution for the essential and significant reasons of his actual and/or imputed political opinion and Pashtun ethnicity, and that the persecution would involve serious harm to him and it would involve systematic and discriminatory conduct in that it would be deliberate and intentional.
In light of the above, and taking into account [the applicant nephew]’s cumulative profile, the Tribunal finds that he faces a real chance of persecution for the essential and significant reasons of his actual and/or imputed political opinion and Pashtun ethnicity, and that the persecution would involve serious harm to him and it would involve systematic and discriminatory conduct in that it would be deliberate and intentional.

100. The Tribunal has considered whether effective protection measures are available to [the applicants] in Pakistan. DFAT assesses that ‘state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and a lack of political will.’[40] The DFAT Report states that:
[40] DFAT Report 5.1
‘despite measures introduced to curb violence across the country under the NAP[41] – including strengthened powers for military and paramilitary security forces and the establishment of military courts - successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.’[42]
[41] NAP stands for National Action Plan. See DFAT Report.
[42] DFAT Report 5.2

101. The Netherlands COI Report states that obtaining protection is often a financial issue, and it is difficult for a person who lacks funds to obtain protection and receive justice.[43] A July 2024 UK Home Office Country Policy and Information Note, Pakistan: Actors of Protection,[44] references the DFAT Report which sets out the challenges faced by the police and paramilitary forces in Pakistan and the limits on their capacity and effectiveness.[45] The DFAT Report also refers to the existence of credible reports of human rights abuses by the Pakistani security services and the ISI (Inter-Services Intelligence) being alleged to have high-level links with militant groups including the Taliban and tolerating their presence in Pakistan.[46]
[43] At 3.3.5.
[44]
[45] DFAT Report 5.8 – 5.12.
[46] DFAT Report 5.3 – 5.6.
102. In light of this, and taking into account the Tribunal’s findings about the applicants’ circumstances and the other country information referred to above, the Tribunal finds that effective protection measures as defined in s 5LA of the Act, would not be available to [the applicant uncle] or [the applicant nephew]. The Tribunal also finds that [the applicants] could not take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in Pakistan, as this would require them to alter their political beliefs and conceal their true ethnicity (s 5J(3)). Accordingly, the Tribunal finds that [the applicants] have a well-founded fear of persecution for reasons of their political opinion and Pashtun ethnicity in Pakistan.
Conclusion – [the applicant uncle]
103. The Tribunal finds that [the applicant uncle] is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
104. As [the applicant uncle] meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
105. As the Tribunal has found that [the applicant uncle] meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether he meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
106. The Tribunal is satisfied that [the applicant uncle] does not have the right to enter and reside in another country for the purposes of s 36(3).
Conclusion – [the applicant nephew]
107. The Tribunal finds that [the applicant nephew] is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
108. As [the applicant nephew] meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
109. As the Tribunal has found that [the applicant nephew] meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether he meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
110. The Tribunal is satisfied that [the applicant nephew] does not have the right to enter and reside in another country for the purposes of s 36(3).
DECISIONS
111. In case number 1906621, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

112. In case number 1906622, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Date of hearing(s): 31 October 2024
Representative for the applicants: Ms Karyn Anderson
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.
…