1918507 (Refugee)

[2022] AATA 793

1918507 (Refugee) [2022] AATA 793 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1918507

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Windsor

DATE:  18 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2022 at 1:32 pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – imputed political opinion – local Peace Committee member – opposition to the Taliban – involvement in an NGO – polio vaccination teams – unlawful killings – mental illness – internal relocation – lack of family support – decision under review remitted

LEGISLATION

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

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 October 2015 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 13 May 2014.  A summary of relevant applicable law is at Attachment A.

3. In his Protection visa application the applicant indicated he was born on [date] in [Village 1] in the Swat district of Khyber Pakhtunkhwa province, Pakistan.  He indicated he is ethnic Pashtun and a Sunni Muslim, was married in September 2009 in Pakistan and has a daughter (his wife and daughter live in Pakistan).  He indicated he departed Pakistan legally [in] February 2014 and arrived in Australia on [the next day], entering on a student visa.[1]

   [1] See the Departmental file.

4. In a statutory declaration declared on 6 May 2014 included with his application, the applicant indicated he fears returning to Pakistan because of his involvement in a Lashkar (Tribal militia - which he indicated has also come to be known as a Peace Committee or Defence Committee), formed to oppose the Taliban and their presence.  He indicated he also fears returning because he is from a prominent Malik family in his village who have openly opposed the Taliban, was threatened due to previous involvement in an NGO, and because he was also a security guard for polio campaigns and such persons are targeted by the Taliban.[2]

   [2] See the Departmental file.

5. The Delegate accepted the applicant’s key claims as credible and, after considering relevant country information and supporting documents submitted by the applicant, found that he faces a real chance of suffering persecution involving serious harm for a Refugees Convention reason from the Taliban or other militants in the Swat valley due to his activities, including his active role in a Village Peace Committee (VDC).  The delegate found, however, that the applicant could reasonably relocate to an urban area in Pakistan such as Islamabad or Rawalpindi, where she assessed there would be only a remote rather than a real chance he would suffer persecution.

6. The applicant applied to the Tribunal for review of this decision on 20 October 2015.

7. The Tribunal, differently constituted, affirmed the delegate’s decision on 16 October 2018. 

8. [In] July 2019 that Tribunal decision was remitted by consent by the Federal Circuit Court of Australia, for reconsideration according to law.[3] The court noted that the Minister concedes that the decision of the Tribunal is affected by jurisdictional error as the Tribunal failed to consider the applicant’s claim that he was a member of the Village Defence Committee (VDC): NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63]. The court indicated the applicant raised this claim at paragraph [51] of his statutory declaration provided in support of his Protection visa application dated 6 May 2014. However, the Tribunal, at paragraph [39] of its decision record, found that the applicant did not claim to have ever been a member of the VDC. The Minister accepts that the applicant’s claim to be a member of the VDC was relevant to his claims for protection and that the Tribunal's failure to consider the claim was material to the decision that it ultimately made, thus amounting to jurisdictional error.

   [3] Court file [number]

9. The applicant appeared before the currently constituted Tribunal on 14 February 2022 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

10. The applicant was represented in relation to the review by his Australian legal practitioner.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Summary of claims

11. The applicant’s initial claims for protection were set out in a statutory declaration of 6 May 2014 included with his protection visa application.  His claims from this statement are summarised as follows:[4]

    [4] See the Departmental file.

    ·He fears returning to Pakistan due to his involvement in a Lashkar (also known as a Peace Committee or Defence Committee).  These are groups which have formed to oppose the Taliban and their presence in certain areas.  He was responsible for the Pakistani Army capturing Taliban members and received threats of retribution as a consequence.

    ·He also fears returning because his family is a prominent Malik (elder) family in his village who have openly opposed the Taliban.  His now deceased grandfather was the village leader and his [Brother A], and [Uncle A], are the leaders now and [Uncle A] is the current present of their Village Defence Committee (VDC). 

    ·His grandfather refused to support the Taliban when they came to prominence in 2007 and was instrumental in organising a Lashkar (tribal militia) to oppose them.  Some Lashkar members were killed by the Taliban, including the applicant’s grandfather in a shooting incident in August 2008 when he was leaving the mosque, accompanied by the applicant.

    ·He also was a security guard for the polio campaigns organised by [Agency 1] in [Village 2] and such persons are targeted by the Taliban.

    ·He also was involved in an NGO, [Agency 2], but stopped his involvement due to threats they received.  The centre subsequently closed.

    ·His [Brother B], was kidnapped for ransom by militants in July 2008 and psychologically damaged by the experience.  He is seeking to get a visa to go to another country.

    ·His [Sibling B] was granted refugee status in [Country 1] in around 1998 and is now a [Country 1] citizen.

    ·Following a major army operation against the Taliban in 2009, during which his family relocated to [a named village], the Army asked his family to form a VDC.  His [Uncle A], became the President of this committee.  The VDC showed the Army the houses of the Taliban in the village, which were destroyed, and helped the Army form a list of known Taliban members, some of whom were arrested.   Some VDC members have been killed by the Taliban.

    ·He was a member of the VDC and would do patrols once a week searching for homes of militants, and night watch each night for three hours.  His actions in May 2013 resulted in the arrest of three Taliban members but resulted in him receiving a death threat letter from the Taliban.  He would also guard the mosque during Friday prayers and sometimes accompany his uncle for his security.

    ·In 2011 some more VDC members were killed and his brother [Brother A] received death threats from the Taliban over the phone.  Their VDC is at increased risk of being targeted because it is in the area where Maulana Fazlullah, who is now the head of the Taliban, was based.

    ·In around September 2012 he commenced volunteer work as a security guard with [Agency 1] in [Village 2] to protect the polio vaccination teams, who were threatened by the Taliban.

    ·His [brothers] in [Village 1] mostly stay at home and are protected by the Army.

    ·He believes he cannot relocate within Pakistan as the Taliban are everywhere, have a network of informants and have killed members of Lashkars and VDCs/VPCs in other places in Pakistan, such as Karachi, where there is also inter-ethnic violence and the overall security situation is precarious.  There is also a lot of discrimination against Pashtuns where they are a minority, such as in Punjab.  He would find it difficult to get employment.  Islamabad is the most expensive city in Pakistan and he would not be able to afford accommodation there.

12. The representative provided a range of documents and legal argument in support of the applicant’s claims, either with the application or at interview with the delegate on 16 February 2015.  This included a list of [Village 1] VDC members which includes the applicant, and documents relating to his involvement in the polio vaccination campaign, with [Agency 2], with children’s education and in relation to undertaking ‘watch’ duty.  Also included was a copy of a threat letter from the Taliban, received in around June 2013.

13. On 5 March 2015 the representative submitted documents relating to the killing of a number of VDC members in Swat over the period from May-July 2014.

14. On 17 and 19 March 2015 the representative submitted that Pashtuns from Khyber Pakhtunkhwa (KP) who are residing in Punjab have to travel back to KP to renew their identity card.  On 26 March 2015 the representative submitted a copy of a news article regarding discrimination against Pashtuns in Islamabad and Punjab by police and by the National Database and Registration Authority (NADRA), which makes it difficult for Pashtuns to obtain rental accommodation.

15. A further statutory declaration by the applicant of 17 July 2015 was subsequently submitted indicating that the applicant’s brother, [Brother A], his uncle [Uncle A] and his cousin had been elected to council positions, which he claimed raised their profile in the community and increased the risk of them being harmed.  In supporting documents the applicant’s brother states that he had continuously received threatening calls since being elected as a councillor for the [Village 2] Union Council.

16. A further submission was received on 8 August 2018, prior to the hearing with the first Tribunal held on 9 August 2018.  This comprised a further statutory declaration of 7 August 2018 by the applicant, supporting documents and a psychiatric report for the applicant dated 7 August 2018 prepared by Consultant Forensic Psychiatrist, [name deleted].

17. In his further statutory declaration the applicant raised an additional incident that he had not mentioned previously, regarding having been attacked by two militants in 2007 when they overheard and objected to a music ringtone on his mobile phone.  He also indicated that his brother [Brother B] and [another named relative] are now in Australia and have sought protection.  He states that his brother has seen a psychiatrist and been diagnosed with a very severe post traumatic disorder and probable psychotic illness.  The applicant comments on VDC members known to him who were killed in 2016 and 2017.  He states his family members continue to receive threats because of their association with the Army and VDC.  The applicant also provides comment and argument challenging the delegate’s finding that he could reasonably relocate to Islamabad or Punjab where he would not face a real chance of harm, including due to his mental health issues. 

18. The psychiatrist indicated that it is his opinion that the applicant suffers post-traumatic stress disorder (PTSD) and major depressive order.

19. On 16 August 2018 the representative forwarded a post-hearing submission and country information in support of the applicant’s claims.

20. On 2 October 2018 a video clip (and transcription) was submitted regarding a protest in Mingora Swat about groups of people carrying guns throwing stones at houses and firing into the air, causing terror and fear in the local people.

21. Further submissions were received on 5 and 10 October 2021 and 9 and 14 February 2022.  These included copies of official advice to the applicant’s family regarding the risk of target killings in Swat, including of VDC members and government supporters; press reports regarding two recent terror incidents in Lahore and Islamabad; two documents regarding incidents involving close family members, including a report of the applicant’s uncle, [Uncle A], having been fired upon; a police report file by the applicant’s brother, [Brother A], regarding the disappearance of their nephew; and a recent article published by the US Institute of Peace (USIP) regarding the ‘insurgency challenge’ posed to Pakistan by the alliance between the Afghan and Pakistani Taliban.

    Findings and reasons

    Applicant’s identity

22. On the basis of the copy of the applicant’s Pakistani passport provided to the Department,[5] and noting the delegate’s findings in this matter, the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as he claims it to be. Accordingly, the Tribunal finds that Pakistan is his country of nationality for Refugees Convention purposes and is his ‘receiving country’ for complementary protection purposes.

    Issues

    [5] See the Departmental file.

23. The issues in this review are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm for one or more of the reasons enumerated in the Refugees Convention definition if he was to return to Pakistan and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.

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

    Vulnerability

25. The Tribunal had regard to the August 2018 report of the consultant psychiatrist and accepts that the applicant has had symptoms consistent with PTSD and depression.  The Tribunal finds that the applicant should be treated as a vulnerable person in accordance with relevant Tribunal guidelines.  The applicant indicated at the hearing that he had attended 8-9 counselling session in Sydney, as recommended by the consultant psychiatrist, but has not seen a counsellor or medical practitioner since he moved to Melbourne in December 2020, partly due to the impact of the COVID-19 pandemic.  The applicant indicated that while he had been taking anti-depressant medication, he had stopped taking it regularly and ceased taking it altogether about five months ago when he finished his previously prescribed tablets.  He indicated the medication made him feel drowsy and adversely affected his capacity to work.  When asked, he indicated that he feels his mental health is a bit better but commented that tension, stress and depression are part of his life and have become normal for him.  The Tribunal advised the applicant to request a break at any time during the three-hour hearing should he feel he needs one.  In the event, no breaks were requested, although the applicant did become emotional at the end of the hearing when queried about a copy of a report he submitted regarding the disappearance of his nephew in 2020 (post-hearing he provided documents indicating his nephew had been killed).  In general, the Tribunal found the applicant was forthcoming and expansive in his evidence, consistent with the observations of the delegate.  Accordingly, the Tribunal is satisfied that the applicant’s ability to understand the Tribunal’s questions and to present his case was not impeded by his mental health issues.

    Credibility

26. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

27. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

28. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

29. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

30. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

31. In general, the Tribunal found the applicant to be a credible witness.  The applicant has provided a consistent account of the core aspects of his claims over the course of the consideration of his protection visa application.  The Tribunal found the applicant was spontaneous, passionate and knowledgeable regarding events in Swat and Pakistan more generally when giving evidence.

    Assessment of claims

32. In essence the applicant claims to fear persecution involving serious harm from the Pakistan Taliban or Tehreek-e-Taliban (TTP) due to an actual and imputed political opinion of opposition to the TTP due to his status as a member of a prominent family well-known for their opposition to the TTP, and his activities including involvement with his local VDC, an NGO, polio vaccination campaigns and children’s education, along with the political and VDC activities of his uncle, [Uncle A] (who is a member of the Awami National Party (ANP)) and brother, [Brother A], should he return to Pakistan.

    Background - the conflict in Swat

1. The Taliban in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989. Maulana Fazlullah assumed control of the TNSM in 2001 and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands. When Tehreek-e Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007 (now part of Khyber Pakhtunkhwa), Fazlullah was named emir (leader) of the Swat Taliban.  Although the TTP and TNSM were not operationally linked at that time, they were allied and TNSM militants in Swat were also referred to as the Swat Taliban. [6]

   [6] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289-313; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November.

2. The TNSM attacked targets in Swat which it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, and artists[7] and used beheadings to advertise its strength.[8]  The Khyber Pakhtunkhwa (KP) Provincial Government entered into a number of ceasefire agreements with the TSNM from 1994[9] however, these did not lead to a lasting peace and the TNSM gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence and displacement of the local population.[10]  Fazlullah effectively set up a parallel government in Swat in 2007, controlling the area until 2009 when he and his group were defeated by an army offensive.[11]  The army offensive against the Taliban in Swat commenced in May 2009.  During that time the military is reported to have sent 15,000 troops into Swat to confront about 4000 Taliban militants.  Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people (IDPs) in the month after the offensive commenced.[12]

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

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

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

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

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

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

3. The Tribunal accepts that the applicant is a Pashtun from [Village 1] in Swat district KP, is of the Sunni Muslim faith, and that his family lived in Swat through the period when the Taliban controlled Swat until they were defeated in the Army operation in mid-2009.  The Tribunal accepts the applicant’s evidence that he is a member of a well-respected and prominent Malik (village chief or leader) family,[13] which is a moderately well-off landowning family in their district.  The Tribunal accepts the applicant’s consistent and plausible evidence that his grandfather was killed in mid-2008 because of his prominent role in opposition to the SWAT Taliban.  The Tribunal also accepts that the applicant’s brother, [Brother B], was kidnapped by militants in 2008, beaten and threatened that he would be beheaded, but ultimately released on payment of a ransom of 2 million rupees, organised through a third party.  The Tribunal accepts that [Brother B] was severely affected mentally by this experience.

   [13] Merrian-Webster.com

4. The Tribunal accepts that the applicant’s family was among the 1.5 million IDPs who left Swat prior to the commencement of the Army operation in May 2009, returning to [Village 1] in September 2009.

5. Country information indicates that the campaign against the Taliban and its supporters in Swat was brutal, with atrocities also committed by the Army.  According to a 2009 report, an estimated 300 to 400 corpses of suspected Taliban militants, last seen alive when taken away by the Army, were found on street corners, bridges or outside homes throughout Swat and it was unclear whether the executions were perpetrated by the Army, local tribal militias or other Taliban insurgents.[14]  According to another 2009 report, “scores, perhaps hundreds” of bodies of tortured militants were found on the roads of Mingora (a major centre) and in rural areas that were former militant strongholds in the aftermath of the Army offensive and local residents blamed the military.[15]

   Nature of the applicant’s role with the local Village Defence Committee (VDC)

   [14] ‘The law in whose hands?’, The Economist, 1 October 2009.

   [15] Perlez, J & Shah, P, ‘Pakistan Army Said to Be Linked to Swat Killings’, The New York Times, 14 September 2009 (CISNET Pakistan CX233452)

6. The applicant has indicated that when the Army operation ceased, the Army requested that his family be involved in the formation of a VDC, to assist the Army to prevent the Swat Taliban from re-establishing itself in the area.  The Tribunal accepts the applicant’s evidence that his uncle, [Uncle A] became the president of their local VDC, his [Brother A], was a member and the applicant also was a member and had a role when he was at home during university vacation, and a larger role when he ceased studying and returned to [Village 1] on a full-time basis from November 2010.  The role of these committees was to assist the Army in identifying local Taliban members and supporters, who were detained and whose houses were destroyed, and to organise and participate in night patrols in each neighbourhood to raise the alert in the event of any attempts by Taliban to infiltrate the area.  The Tribunal finds this is consistent with relevant country information.

   The situation in Swat post 2009 – target killings, including of VDC members

7. Independent information before the Tribunal indicates that, despite the defeat of Taliban militants in Swat by the Pakistan military in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military continued.[16]

   [16] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at >

   In April 2010 two peace committee members in Kuza Bandai were killed and three injured by ‘assailants’ according to the US Department of State report[17] and The New York Times.[18]  

   [17] ‘Country Reports on Human Rights Practices for 2010: Pakistan’, US Department of State, 8 April 2010, Section 1g, p.29,

   [18] Tavernise, S. and Shah, P. Z., ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April 2010,

8. A May 2014 report by the Voice of America on Pakistan military operations targeting Taliban strongholds in neighbouring Buner District, noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014, were a ‘clear indication of militant presence in the region’.[19] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[20] who stated that the Taliban in Swat were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region.  Cloughley characterised the Taliban in Swat as being ‘down but…not out’.[21]  The Taliban’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House (in 2013) that the Taliban have become active in Swat again.[22]

   [19] Jan, S, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May 2014, <

   [20] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Cloughley, B, ‘It’s Time to Strike’, The News International, 19 May 2014, <

   [22] ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’, Pakistan Today, 17 September 2013, <

9. There is clear evidence of militant attacks against peace committee/VDC members in 2014,[23] indicating that Taliban militants remain active in the district and continue to carry out sporadic ‘hit and run’ type attacks against peace committee members and Army patrols.[24] Between September and December 2014 there was reported to have been a ‘spike’ in Taliban attacks against peace committee members.[25] Over the same time period, small groups of Taliban fighters have been infiltrating back into Swat from sanctuaries in the Afghan provinces of Kunar and Nuristan, and militant cells have been operating in the Kabal, Matta, Charbagh and Miadam areas of Swat.[26]

   [23] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,

   [24] Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014, ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014, ‘Killing spree - Village defence committee member shot dead’, Express Tribune, The (Pakistan), 28 October 2014, Rehman, Z & Walsh, D, ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014, Rehman, Z, ‘Swat - An Unquiet Calm 2014’, Dawn, 21 September 2014,

10. A September 2014 article in Dawn newspaper indicates that on 15 September 2014 the head of the Gul Jabba village peace committee was gunned-down in broad daylight near a check-post manned by security personnel and the same day two peace committee members were killed in Bara Bandai.  The article comments that over the last three years at least 30 members of Village Defence Committees (VDCs) or Peace Committees have been gunned-down in Swat.  These killings are described as an ongoing process of retaliation for helping the authorities arrest militants and destroy their houses.  The article concludes that continuing attacks are belying the military’s claims of having secured the area from militants and that experts say the Taliban will not be able to regain the hold it had on the Swat valley from 2007-2009 but are likely to restrict their activity to hit-and-run tactics, an ideal guerrilla warfare approach in Swat’s rugged terrain.[27]

    [27] ‘Swat: an unquiet calm’, Dawn, 21 September 2014, >

    An investigative report by Al Jazeera in late 2014, suggests the number of VDC fatalities in the Swat Valley is much higher than reported by the military and other sources,[28] referring to at least 22 VDC members having been killed in targeted attacks across the valley that year alone. 

    [28] ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014,

11. Military spokesperson Lieutenant-Colonel Aqueel Malik stated that there are approximately 3000 peace committee members in Swat, of whom 22 are highly placed on a Taliban hit-list.  He states that the Taliban target tribal leaders because they are ‘soft targets’ and peace committee members because ‘these people worked closely with law enforcement agencies [and the Army] in order to end terrorism.’[29]  According to a December 2014 report by Newsline Pakistan, attacks on people working with peace committees in Swat have continued during the past few years.[30]

    [29] Hashim, A, ‘Killings target anti-Taliban leaders in Swat’, Al Jazeera, 20 November 2014,

    [30] ‘Trouble in Paradise’, Newsline (Pakistan), 13 December 2014,

12. Country information also indicates that in September 2014 a curfew was imposed in areas of Swat following the killings of several peace committee members by militants.[31]  

    [31] ‘Indefinite curfew continues in northwest Pakistan’s Swat district’, The Economic Times, 18 September 2014, >

    Reporting in 2016 indicates further target killing of peace committee/VDC members.  In early June 2016, there were reports about a VDC member in Kuza Bandai area escaping an attempt on his life in the Kabal tehsil of Swat district.[32]  A July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence have been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the peace committees.  The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that ‘the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces’.[33]  Reporting in Dawn indicated that security incidents in the Swat Valley in 2016 included fatal attacks on VDC members, police and people with an anti-Taliban profile,[34] including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in [Village 2] and Manglore.[35] 

    [32] ‘Peace body member escapes attempt on life’, News International-Pakistan, 4 June 2016,

    [33] ‘Restoring Swat’s lights’, The Friday Times, 29 July 2016,

    [34] ‘Target killings: An unending wave in Swat’, Morning Post, 19 January 2016, ‘Shangla DSP killed in Swat’, Dawn, 13 April 2016,

    [35] ‘Village defence body member, guard shot dead’, Dawn, 24 May 2016,

13. A Centre for Research and Security Studies report for the period April – June 2016 indicated that police officials appear to be the main target of violence in KP, followed by political activists belonging to the ANP and the pro-government peace committee members.  It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[36] 

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

14. In its 2016 Country Information Report DFAT indicated that, despite security operations against terrorist and militant groups and measures adopted under the National Action Plan (to counter terrorism) having substantially reduced the level of generalised and sectarian violence throughout the country, incidents of target killings continued to occur in KP province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015[37].

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

15. The Tribunal finds that the relevant country information indicates that despite the military gaining control of Swat in 2009 and the resultant improvements in the overall security situation, the Taliban continued to launch attacks against military targets, anti-Taliban political activists, and those they consider support the Pakistan Army and government, including VDC members.

16. The Tribunal also considers that, given the nature of the role of VDC members in assisting the Army to identify Taliban members and supporters, and the consequences for those identified, there is enmity towards VDC members not only from the TTP but also from family members of some of those who were detained by the Army based on the advice of VDC members. 

17. The Tribunal notes the observation of the previous Tribunal that the applicant was not harmed while in Pakistan and that his uncle and brother, despite their VDC activities and political roles, also have not been harmed.  The previous Tribunal concluded (unlike the delegate) that the applicant did not face a real chance of suffering persecution involving serious harm from the TTP should he return to his home area in the Swat district of KP.  While this was based, in part, on the erroneous conclusion that the applicant had never claimed to be a member of the VDC, it was also based, in some part, on the view that if the applicant and his family members had been targeted and threatened as claimed, the TTP likely would have been successful in harming one of them.  The Tribunal considers this conclusion overlooks that, while the Taliban clearly has targeted VDC members since 2009, the attacks have been sporadic and have only been successful in killing some of the people who were/are involved with VDCs.  The killings appear to be opportunistic and to occur as circumstances allow, which would explain why they have continued over an extended period since 2009 (rather than all targeted VDC members being killed within a short period of time in swift and deadly attacks).

    Risk of persecution involving serious harm should the applicant return to his home in KP now

18. In relation to its consideration of whether the applicant would face a real chance of suffering persecution involving serious harm should he return to Pakistan now, the Tribunal has had regard to relevant country information regarding the current situation in Pakistan, based on the current DFAT Country Information Report, released in January 2022.[38]

    [38] DFAT Country Information Report, Pakistan, 25 January 2022.

1. DFAT notes that, following a six-year downward trend noted by the Pakistan Institute for Peace Studies (PIPS), where terrorist attacks decreased from 1717 (2451 deaths) in 2013 to 146 (220 deaths) in 2020, the security situation in Pakistan has deteriorated since mid-2021.  PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks.  DFAT comments that most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan.

2. DFAT states that in-country contacts told it that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan (DFAT notes that TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021). Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.

3. In relation to ‘peace committees’ (another term for VDCs), DFAT comments that multiple sources told it that committee members and their families were targeted for violence by militant groups (especially the TTP). 

4. DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.

5. The applicant has also put forward credible evidence that he worked (albeit for a relatively short period) with an NGO ([Agency 2]) involved in Children’s education, until the organisation was forced to close after receiving threats from the TTP.  The applicant completed a [Qualification 1] and indicated that he had wished to be able to use his qualification to obtain work with an NGO in Pakistan.  DFAT comments that the political environment in Pakistan is generally hostile to international and local NGOs, which are often perceived as a national security threat.  International NGOs including Save the Children, the International Crisis Group and the Norwegian Refugee Council have been forced to cease operations in Pakistan in the face of onerous government registration and operating requirements. Human Rights Watch and Amnesty International no longer maintain offices in Pakistan for the same reasons.  DFAT assesses NGO workers face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including KP), NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups, and harassment and monitoring by security forces can occur anywhere in the country.

6. The Tribunal also accepts the applicant’s evidence that he worked with polio vaccination teams.  He expanded on this at the hearing, indicating that he assisted in providing security to the teams as a VDC representative.  DFAT indicates that the TTP has denounced polio vaccinations and regularly carries out attacks on polio workers, as does IS, promoting conspiracy theories about polio vaccinations, such as claiming they are a Western plot to sterilise or otherwise harm Muslims.  DFAT states that militant groups killed more than 100 people in attacks on polio workers between December 2012 and September 2016, and while attacks were less frequent in 2020 there was an uptick in attacks in 2021, especially in KP. A policeman was injured and two gunmen shot dead during an attack on polio workers in Peshawar in September 2021. It was the second such attack in a week and occurred simultaneously with other similar attacks. Polio workers also experience frequent harassment and societal violence because of their work.  DFAT assesses polio workers face a moderate risk of violence and societal harassment due to their work.

7. The applicant also indicated that some of his family members have been active in support of the Awami National Party (ANP), particularly his uncle, [Uncle A].  The Tribunal finds this is consistent with his family being politically active and being strongly opposed to the TTP.  DFAT notes that TTP militants have attacked members of the ANP, which it describes as a secular Pashtun nationalist political party which enjoys strong support in KP, due to its secular ideology, support for the military and opposition to the Taliban, and work to improve the Pakistan-Afghanistan bilateral relationship. 

8. More recently, the applicant provided a copy of a press report quoting Rahmat Ali Khan, ANP Additional Secretary in KP, condemning an incident where [a local leader], who is described as an ‘ANP leader’, was fired upon.  DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP.

9. The Tribunal considers that, given his personal and family background, it is likely that should the applicant return to Pakistan he would again undertake roles with his local VDC, in support of the political activities of his brother and uncle, in support of polio vaccination campaigns, and possibly with NGOs.  After carefully considering the available evidence and the relevant country information, the Tribunal accepts that should the applicant return to his home in the Swat district of KP, the risk of him suffering serious harm from the TTP or TTP sympathisers as a consequence of his actual and imputed opposition to the TPP and other Sunni militant groups; and his membership of particular social groups comprising people who have been VDC members, NGO workers, and polio workers, cannot be dismissed as insubstantial or remote.  

10. Accordingly, the Tribunal accepts that should the applicant return to his home in Swat district or elsewhere in KP now or in the foreseeable future, there is a real chance he will face persecution involving serious harm from the TTP or TTP sympathisers.  The Tribunal finds that the applicant’s actual or imputed anti-Taliban political opinion and his membership of particular social groups comprising people who have been VDC members, NGO workers, and polio workers is the essential and significant reason for the harm and that the persecutory conduct feared by the applicant is systematic and discriminatory.

    Relocation within Pakistan

11. Having accepted that the applicant has a well-founded fear of persecution in Swat District and KP, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.    

12. DFAT advises that most terror attacks happen in KP and Balochistan.  While the Tribunal considers there is still a risk of harm to the applicant should he relocate to certain areas in Pakistan outside of KP, the Tribunal considers the country information indicates the risk of serious harm is significantly lower in some other areas of the country, particularly Islamabad.  DFAT comments that while Punjab and Sindh (especially Karachi) are also targeted for attacks, there were no attacks in Islamabad in 2020.[39]  While the applicant has contested this, noting the proximity of Islamabad to Swat and providing a copy of a report regarding a recent terror attack in Islamabad, the Tribunal finds it is clear that Islamabad is significantly safer than KP.  The Tribunal considers that the evidence suggests that, at this time, there is not a real chance that the applicant would suffer persecution involving serious harm from the TTP if he relocated to Islamabad.

    [39] DFAT Country Information Report, Pakistan, 25 January 2022, section 2.36.

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

14. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.[40]  The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[41]  

    [40] DFAT Country Information Report, Pakistan, 25 January 2022, section 5.23.

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

15. In his oral evidence and in written submissions the applicant has asserted that it is both not safe for him to relocate to another area to avoid the harm he fears from the Taliban in Swat, and unreasonable given his particular personal circumstances, including his lack of family links outside of Swat, his limited work experience, the high cost of living in a city like Islamabad, his mental health concerns, and official and societal discrimination against Pashtuns that would affect his capacity to find accommodation and work outside of Swat.

16. DFAT comments that, while internal migration is widespread and common in Pakistan, it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location.  DFAT also comments that 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. DFAT also notes that Pashtuns report frequent blocking of their CNICs when relocating, which impedes access to property and assets.  DFAT states that NADRA can block a CNIC for suspicious use ­– or allegedly for certain groups as a form of harassment and indicates it understands individuals have found it impossible to reverse a decision to block a card, and blocking is a precursor to cancelling a card. Consistent with claims made by the applicant, DFAT indicates it is also aware of reports CNIC applicants have been told they must travel to a NADRA office in their district of origin to apply to renew their CNIC, but states this is not official policy. DFAT comments that in some cases it may be necessary for applicants to travel to their district of origin to obtain other documents required for a CNIC application, for example, a birth certificate can only be issued by the union council of the district of origin.  While DFAT assesses that Pashtuns outside of KP generally face a low risk of official and/or societal discrimination, DFAT states the risk increases if they come to the attention of authorities for any reason, and Pashtuns who become involved with the Pashtun Tahafuz Movement (PTM), a Pashtun human rights movement, or the ANP, face specific heightened risks.[42]

    [42] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.17-3.18, 5.36, 5.39 and 5.42.

17. The Tribunal also notes that DFAT commented in its previous (February 2019) Country Information Report that Pashtuns migrating within Pakistan report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR 500,000 (AUD 5,500) on the threat of being listed as a terrorist.  At that time DFAT assessed that Pashtuns faced a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab.  The discrimination and harassment in Punjab was such that DFAT advised at that time that Pashtuns sought to avoid resettlement in Punjab altogether (despite it being Pakistan’s most populous and one of the more secure provinces).[43]

    [43] DFAT Country Information Report, Pakistan, 20 February 2019, sections 3.8-3.12 and 5.32.

18. The Tribunal notes that the US Government’s Travel Advisory indicates that while threats still exist, terrorist attacks are rare in Islamabad where there are greater security resources and infrastructure and security forces are more readily able to respond to an emergency compared to other areas of the country.[44]  The Tribunal considers, however, that it is also possible that the stronger security presence in Islamabad may raise the prospect of the applicant coming to the attention of authorities ‘for any reason’ resulting in a raised risk of him suffering official discrimination or harassment, as outlined above.

    [44] Pakistan Travel Authority, US Department of State >

    After carefully considering all the available evidence and the relevant country information, the Tribunal accepts the applicant’s contention that Islamabad is an expensive place to live, and that as an outsider of Pashtun ethnicity with no family links to Islamabad, he may well be treated with suspicion and/or hostility and find it difficult to obtain accommodation and work that enables him to meet basic expenses (noting that he has a wife and advised at hearing that, after travelling to Dubai twice in the last few years to meet with his wife, he now also has two [children] to support).  These difficulties could also result in him coming to the adverse attention of security authorities in Islamabad.  Significantly, while the Tribunal considers the applicant’s mental health appears to have improved since August 2018, when he was diagnosed by a consultant psychiatrist as suffering post-traumatic stress disorder (PTSD) and major depressive order, the applicant indicated that tension, stress and depression have become part of his life.  The Tribunal finds it can’t rule out the possibility that the acute stresses of returning to Pakistan and seeking to establish himself in Islamabad would result in a significant deterioration in the applicant’s mental health, making it impossible for him to function at a level where he could successfully establish himself there.  In this regard, the Tribunal also notes DFAT’s advice that options for treatment of mental health disorders in Pakistan are limited, with there being fewer than 500 psychiatrists serving a population of over 200 million people, and more than 90 per cent of people with common mental health disorders going untreated.[45]

    [45] DFAT Country Information Report, Pakistan, 25 January 2022, section 2.14.

19. For these reasons, the Tribunal does not consider it would be reasonable to expect the applicant to relocate himself to another part of Pakistan, that being Islamabad, where he has no family or social supports, to escape the harm he fears in Swat and KP.

    Availability of state protection

20. While DFAT comments that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will.[46]  DFAT comments that police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Police work in Pakistan is poorly paid and dangerous, and individual police officers often augment their salaries with bribes.  The public perception of police is generally poor, although it has reportedly improved in recent years. 

    [46] DFAT Country Information Report, Pakistan, 25 January 2022, sections 5.1-5.2 and 5.9-5.10.

21. DFAT indicates that despite measures introduced to curb violence across the country under the National Action Plan (NAP)  - strengthened powers for military and paramilitary security forces and the establishment of military courts - successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses, and their families.

22. While the Tribunal finds the evidence indicates the applicant’s family members have received a degree of protection and assistance from the Army and the police in KP, on the information before it, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. Therefore, the Tribunal finds that the applicant faces a real chance of persecution due to his actual and imputed opposition to the TPP and other Sunni militant groups; and his membership of particular social groups comprising people who have been VDC members, NGO workers, and polio workers, should he return to Pakistan now or in the reasonably foreseeable future.

23. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Paul Windsor
    Member

    
    

    ATTACHMENT A   Relevant law

25. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

    Refugee criterion

26. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

27. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

28. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

29. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

30. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

1. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

2. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

3. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

4. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

5. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

6. 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 a protection 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 the applicant 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’).

7. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

8. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Member of the same family unit

9. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.

   Section 499 Ministerial Direction

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    
    

‘ANP leader killed in Swat’,

Dawn, 11 April 2016, policemen shot dead in Dherai’, Dawn, 12 January 2016,

‘Policeman killed and two others injured in Swat attack’, Dawn,

25 May 2016,