1934220 (Refugee)

1934220 (Refugee) [2023] AATA 1225 (14 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Catherine Farrell
CASE NUMBER:  1934220
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:14 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 February 2023 at 1:42pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – mental health – former Awami National Party (ANP) member – moderate risk of terrorist violence – family’s support of the ANP – participation in the village defence committee or Amman Lashkar – perceived as liberal or secular – returnee from the West – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Pakistan, which I accept, applied for the visa on 20 September 2013 and the delegate refused to grant the visa on 11 March 2015.
The applicant appealed this decision to a differently constituted Tribunal which affirmed the refusal on 28 June 2016.
Heard in the then Federal Circuit Court of Australia the Tribunal’s decision was quashed for reasons arising from the Member’s reasoning. While the Member found that the applicant faced a real chance of serious harm, he concluded that it was reasonable for the applicant to relocate to another part of Pakistan. The court found that:
While the Tribunal correctly identified the test to be applied, the Tribunal framed its enquiry as to the risk of harm which the applicant might face too narrowly. The Tribunal’s failure to take account of the risks to which the applicant might be exposed by reason of his secular and political affiliations and available country information that there had been an escalation in the incidence of violence in Lahore and, instead to confine itself to the identified risks of harm to the military, coupled with its conclusion that it had ‘not identified information that ANP members in Lahore are being harmed’ supports a conclusion that it failed to properly assess past and present events that were relevant to the evaluation of a risk of harm to the applicant and to sufficiently undertake the predictive, or forward-looking, task of assessing whether the applicant was at risk of harm in the reasonably foreseeable future.
The Tribunal reasons support a conclusion that it had failed to consider the evidence that members of other secular political parties had recently been harmed in Lahore or that members of the ANP had been the most targeted of all the secular parties throughout Pakistan. Such evidence was both relevant and important to an assessment of whether secular political activists were being targeted and killed in Lahore and so whether the applicant was at risk of harm.
The case was remitted for reconsideration. Constituted to this Member, the applicant was invited to appear before the Tribunal on 13 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted on that day with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
RELEVANT LAW
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, 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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Mental health
A letter dated 12 December 2022 by [Ms A], Counsellor, Foundation House, was received by the Tribunal. The letter notes that the applicant was referred to Foundation House through his general practitioner in November 2021. [Ms A] was allocated the applicant in August 2022 and she began counselling in October of the same year having completed 3 sessions at the time of the report. Due to the limited time frame, [Ms A] wrote, ‘it is difficult to provide a firm opinion about his mental health vulnerabilities and level of psychological functioning at this stage.’ Nevertheless, the report notes that the applicant continues to require pharmacological management by his psychiatrist.
The applicant’s psychiatrist provided a letter dated 12 June 2020. It states that the applicant was seen by the psychiatrist on a single occasion prior to the report being written. Based upon this limited interaction the psychiatrist vaguely concludes, ‘On the basis of [the applicant]’s presentation, it seems he has suffered from PTSD (post-traumatic stress disorder) with features of low mood and anxiety.’
An earlier letter from [Mr B], clinical psychologist, dated 4 October 2017 describes the applicant as having anxiety and depression.
The applicant states that his mental health affects him. When he was working in a factory where they had to put labels on fruits, he said that he repeatedly put the wrong labels on because he was stressed. He also damaged an 800kg tub of cream. In his current [role], he is still leaving rubbish behind. His employer told him that they would lose their contract if he didn’t improve. He said that he can’t work in a full-time job because of stress arising from his past.
The applicant appeared lucid in the hearing and was able to provide answers appropriate to the questions being asked. At the outset I offered the applicant breaks at regular intervals and indicated that he could ask for a break at any time. In considering how to approach the hearing I had regard to the Tribunal’s guidelines that advise on engagement with vulnerable applicants.
In reflecting upon the conclusion of the hearing I find that the applicant was provided a meaningful opportunity to give evidence and present arguments.
In making findings throughout this decision including findings of fact as well as whether he meets the threshold tests, I have endeavoured to reflect on how the circumstances may be impacted by his mental health.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
The applicant is a Muslim Pashtun from the Swat district in Pakistan’s Khyber Pakhtunkhwa province. He has three brothers of which one, [Mr C], is married with [number] children and living in their home village of [Village 1], Swat, together with their mother. He had initially travelled to [Country 1] to work shortly after the passing of their father but returned in 2015. Another brother, [Mr D], is seeking asylum in Australia and the third is seeking asylum in the Netherlands.
The applicant was married in 2022 while living in Australia and his wife was in Pakistan. He travelled to [Country 2] for three months to meet her and while in [Country 2] claims not to have travelled to Pakistan. The applicant’s wife and her family are from Swat.
The applicant claimed that his father was involved with the Awami National Party (ANP) as a [office holder] in the locality of [Locality 1]. When asked about the details of his father’s involvement the applicant responded by saying that he was very young and that he didn’t know much about politics at that stage. He simply remembers his father as being engaged and that his father would try to get people to support the ANP and post posters around the village including in the 2008 election campaign.
A threat letter from the Taliban purportedly dated from 2008 was provided in which the applicant is named.
Not long after receiving the threat letter, the applicant’s father was claimed to have been beaten by the Taliban. The applicant said that six to seven months later while on the way to the market he claims that his father was ‘shot at’ by the Taliban. He was claimed to have been injured and taken to a local hospital. At that point in time the applicant’s uncle is said to have decided that it was no longer safe and the whole family would be moving. The applicant stated that 10 days later his father died of a heart attack.
At the hearing I noted that although the applicant was named in the 2008 threat letter, he was not harmed when the Taliban came and attacked his father or when they shot him. He responded that he used to go to school and wasn’t present at those times.
The applicant and his family remained in [Town 1], a larger town in Swat district, for two years, apart from a period of five months when they were in the neighbouring district of Mardan. During this period the applicant was not harmed.
The applicant claims that their family home was destroyed by the Taliban during the several months that the Taliban occupied parts of Swat in 2009 before being pushed back by the government’s security forces in the same year.
The applicant also noted how his father when he was alive was asked to join the Taliban. He claimed that they offered his father a gun and a car, but he didn’t take anything from them. Before the army operation the applicant claims that his father was asked by another Taliban commander to take the commander’s family across an army checkpoint, but he refused. In another instance they asked his father for food from the fields, but his father refused.
The applicant claims that upon return to their village in 2011 he was elected as General Secretary for [Locality 1]. There were about 30 members in total of which two were in his village. I noted that in 2011 he would have been [age] years old which would have made him very young for the role, given the traditional customs that recognise elders prevalent in his community. He said that in an illiterate area his education gave him standing in his community and in addition few others wanted to join the ANP.
In this role he claims to have organised meetings on behalf of the president, [Mr E], which would be held in [Mr E]’s house bringing together about 15 members at any one time.
He would also organise meetings for his local village in his house which would include two other members along with any local people interested to attend. At these meetings he claimed that there would be 15–30 people, and locals would raise issues of concern. He wrote in his submission that the meetings would be held twice a month during which they would discuss issues such as problems with the electricity supply and the roads. He wrote, ‘We would discuss different problems and the needs for the people of [Village 1]. Some people who attended the ANP meetings in my guest house were also members of the Amman Lashkar, and we would discuss how to make the peace army stronger.’ He said that he would then raise any relevant issues with [Mr E].
Regarding [Mr E], he continues to live in Swat. The applicant said that he wants to leave but he has no way to depart. He said that he has ANP security. He said individuals have to pay for their own security. When they go out into the rural areas, they ask for police protection. He said that he doesn’t know if the Taliban have tried to kill him.
The applicant claims that as a part of his role with the ANP he would speak to the community about women’s education and raise awareness about how the Taliban were not good for the people.
The applicant claims that in 2011 he joined an Amman Lashkar, a traditional village safety committee, of at least 50 people with the main responsibility of organising people, patrolling the village, checking IDs and undertaking mosque duties. He said that he also participated in a village defence committee for his village which had different responsibilities including to arrange for permits, identify people who are involved with the Taliban and engage with the army. He said that this committee had three members but as the others didn’t know how to write he would arrange much of the work including arranging the patrolling, contacting the army, who would sometimes visit his house, and conveying messages to the community.
The applicant described his responsibilities in his December 2022 statutory declaration as follows:
Our duty was to patrol our neighbourhood and report anything suspicious to the Army. We would go to mosque on Friday and keep a careful watch over the people. If there was anyone there that we didn’t recognise, or held concerns about, we would report them to our Lashkar and the Army. We also did search operations with the Army. We worked closely with the Pakistani Army with the objective of restoring security to TTP affected regions.
At least 50 people were in our Aman Committee, it was very large. I normally reported within the Commitee, however I occasionally had direct contact with the Army.

The applicant claims that during this period he received some threatening calls and a letter, a copy of which was provided to the Department. According to his evidence in the hearing, the first communication conveyed a warning not to work against the Taliban, not to be involved with the ANP and not to participate in the Lashkar. The second came in August 2011 and the third in November 2011. During these calls he claims that they said that he identified people to the army, and they threatened to find him and kill him. In one, he claims that they noted that he wasn’t going out much. He claimed to have avoided going into public areas to minimise his exposure to danger. He believes that he was added to a wanted list maintained by the Taliban.
I asked the applicant why he thought that they didn’t attack his house. He said that this is how the Taliban work, they threaten you to stop your work, but when they add you to the list, they will try to kill you.
I noted that it appears that despite receiving these threats he remained in his village for another seven months before deciding to go to his relatives in [City 1]. He said that before receiving the threats he could walk everywhere, would go out with friends and watch cricket but after the threats he wasn’t going out and stayed at home apart from undertaking the Lashkar duties. He said that he didn’t have anywhere else to go. I put to him that he stayed in Mardan with his aunt in 2009 and that he could have gone there, but he responded that he couldn’t do his Lashkar duties there and that he would be away from his family. He said that he remained in his village as members had. In addition, he claimed that after the 2009 military operation the Taliban were in hiding.
He said that he remained in his village through to June 2012 when he claims to have been shot at. In his statement of claims he wrote:
In June 2012, I and two other members of the ANP ([Mr F] and [Mr G] - both from [Village 1]) were attacked by Taliban. We were walking on the road in the village and we were shot at. We ran behind the houses. The shooting lasted a minute or two. They were too far away for us to see them. I do not believe the attack was random, because of the threats I had previously received. We informed the Amman Lashkar and we searched for them, but they had already moved.
At the hearing when discussing the same incident the applicant explained that some people were hiding in the fields when the shots were fired. He said that he ran behind some houses and called the army and when the army came, they didn’t find anyone. He said that he could hear the bullets passing by them and that he saw the bullets hit the road. He said that he doesn’t believe that they were after his friends and instead believes that he was the target.
He said that his friends did not flee the village and that nothing happened to them subsequently. I note that in his written statements he explained that they were both members of the ANP. I find that the applicant’s attribution of the gun shots to his presence is speculative. The incident could have been as a result of mistaken identity, troublesome youth, or even people targeting his friends and then deciding not to pursue the matter further. To attribute such an attack as targeted to him specifically is overly speculative.
The applicant said that he stayed in Pakistan through to October 2012. During this period, he claimed to have switched off his phone and thrown out his SIM while hiding in Mardan waiting for his visa. He confirmed that no one from his family received any calls or threats relating to him.
The applicant arrived in Australia [in] October 2012.
He claimed that within a year of arriving to Australia some people came to his family’s place and asked about him, claiming to be friends, but his brother, [Mr D], knew that they weren’t. The conversation escalated such that they threatened [Mr D] with a gun. The brother eventually told them that the applicant was in Australia.
The applicant noted in his submissions that members of Amman Lashkars in Kanju and Dherai, towns close to his, were killed in June and July of 2013.
I asked the applicant whether he had had any direct contact with the Taliban as his psychiatrist had written, ‘[the applicant] stated that he was beaten up by Taliban on a few occasions and was threatened by them… He gave me an indication that he has PTSD symptoms mainly in the form of flashbacks, nightmares and hypervigilance on background of being a survivor of Taliban’s threats and torture.’ The applicant said that he sees him every six months but acknowledged that he was never beaten and suspected that maybe he was talking about his father.
The applicant provided supporting letters from officials regarding his membership and role in the ANP and his membership of the Amman Lashkar and Village Defence Committee.
The applicant’s brother, [Mr C], who was named in the claimed threat letter from 2008 has not been harmed. The applicant noted, though, that this brother was not involved in a Lashkar but acknowledged that he was involved in the ANP in 2008 and again in 2018.
In his latest statement he wrote, ‘My elder brother, [Mr C], and my mother are in Swat. [Mr C] settled back in Swat around 2015 after spending time working in [Country 1]. He became more politically involved around the 2018 election and supported Waqar Ahmed Khan of the ANP with my brother [Mr D].’ I asked whether this meant that [Mr C] faced a more recent and current threat. The applicant responded by saying that his brother didn’t hold any post and just helped during elections.
The applicant raised for the first time at the Tribunal a claim that he fears his uncle. His uncle was a taxi driver and, according to the applicant, he would take the Taliban in his taxi, but he was arrested and spent one year in jail for this. The applicant claims that his uncle blames him and his brother, [Mr C], for his incarceration. The applicant claims that his uncle has threatened to kill him. He recalls that this threat from his uncle was in approximately 2014 whereas his term of imprisonment was in 2009–2010.
The applicant has provided evidence of having given his brother a ‘special power of attorney’ to proceed with a case against his uncle to get access to the family’s inheritance of land. The applicant said that [Mr C] filed the case, though I note that his power of attorney was to [Mr D], his other brother.
The applicant said that his family is afraid of the uncle because he knows people in the police and has three sons and guns. He said that they act like animals.
The applicant is no longer a member of the ANP in Pakistan nor is he a member in Australia. He said that he has been stressed about his personal life and thought that when he is settled, he would join. He has not been politically active in Australia in any other manner. He reasoned that he is not mentally strong enough for activism. He said that he had once participated in a jirga of Pashtuns in Australia, but they asked him a lot of personal questions, so he chose not to continue his involvement. He wrote in his submission, ‘I tried to attend the rallies of the political groups here but due to my social anxiety, I simply couldn’t tolerate the crowds.’
Describing his social anxiety, he said at the hearing that when he goes to work in a factory, he doesn’t go to the lunchroom, and instead he goes to his car to eat. He doesn’t speak with people, as it makes him feel stressed, anxious and fearful.
Regarding the applicant’s activities upon return, he claimed that he would re-join a village defence committee and the ANP were he to return to Pakistan.
In considering this claim I note that the applicant has mental health challenges diagnosed as depression and anxiety. The impact of his anxiety was detailed by the applicant and is described above. In discussing the applicant’s ability to relocate to another part of Pakistan the applicant repeatedly referenced his mental health challenges as impacting any transition to another location. This has been repeated in submissions. I acknowledge the descriptions of his mental health challenges detailed in the report by Foundation House and that of his psychiatrist and psychologist and acknowledge his claims of how it would impact his ability to relocate including that he would struggle to find work. He explained that even in Australia he has had problems maintaining a job.
He wrote in his December 2022 statement:
I do not know how I would mentally cope with living in Pakistan. I can hardly cope here in Australia with the stress and memories, but in Pakistan it would be even harder. The stress and memories would be even more intense. I’d always feel the threat whenever I left outside that someone was out to kill me. I don’t know how I would get the strength and courage to even go to work.
But his mental health is not only relevant to whether he can find a job in another location in Pakistan, but also whether he would be able to maintain other roles were he to return to his home. When considering the applicant’s ability to resume a role with the ANP or one of the defence committees, as he claims that he would, his mental health must also be taken into consideration. He has social anxiety such that in Australia he doesn’t eat lunch with his colleagues but goes to his car. It would be difficult to accept that the applicant would somehow be unable to find work were he forced to relocate in Pakistan, but that he would be motivated and willing to take up a volunteer political role organising meetings, engaging with neighbours and coordinating with political leaders in the ANP. Similarly, I do not accept that the applicant would do anything other than participate in the necessary village roles such as nightly patrols that are expected of all residents, no different to what his brother [Mr C] or others would do, and that he would join a village defence committee as a member and undertake a proactive role. This view aligns with his current lack of participation in community activities and lack of activism or support for diaspora groups including the ANP.
While it is possible that the circumstances of being in a foreign culture away from his family impact his mental health and specifically his social anxiety and as such his condition may improve, these are not conditions that simply switch on or off. Conversely, returning to Pakistan may trigger some adverse reactions but being among his culture and family may mitigate others. In addition, noting his varying levels of engagement with health professionals in Australia, he may seek support in Pakistan, or he may not. There is no way to foresee how his mind will react to all of this and none of the specialists who made submissions deemed it appropriate to make such suppositions. As such it is appropriate to base this decision on an acceptance that his mental health will not change materially for better or worse into the reasonably foreseeable future.
For these reasons I find that the applicant will not join the ANP upon return to Pakistan and that he will not join as a member a village defence committee and that he will play a role in the community whether through the coordination of the village defence committee or another body.
Other than where I have specifically made a finding against the applicant’s claims, I accept his narration of events and occurrences.
Country information
Prior to considering the specific claims of harm I will engage with the security situation in Swat. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence can and did occur with virtual impunity. With greater security whether from an effective police or community-led actions, these events are constrained if not eliminated. To undertake this assessment of the security environment, I shared with the applicant quantitative information including the number of terrorist incidents and civilian deaths as well as qualitative assessments. I also considered country information presented by the applicant.
We discussed terrorism-related fatalities in Swat. The data shows that whereas the peak reached 402 civilian deaths in a year, the last several years have seen no deaths or single digit deaths.[1] The applicant said that there are a lot of Taliban in the area and that they are reaching their targets, mentioning Idrees Khan, a former Head of a Village Defence Committee who was killed in 2022, as an example. Country information was provided regarding this incident. He added that in another instance they cut an army soldier’s head off and put it in the bazaar. Country information was not provided regarding this claimed incident. He noted that ISIS have also attacked Pakistan army bases and that the Taliban have come across the borders and clashed with the army.
[1] South Asia Terrorism Portal – Swat
I note that just prior to this decision being made a suicide bomber killed 101 worshippers in a mosque within a secure sector of Peshawar, the capital city of Khyber Pakhtunkhwa. The mosque served mainly police officers and government employees.[2] This is in addition to an attack on a Shia mosque in Peshawar in March 2022 that killed 62. Information regarding this latter attack was provided to the Tribunal by the applicant’s representative.
[2] ‘Terrorism Has Returned’: Pakistan Grapples with Attack that Left 101 Dead’, New York Times, January 31, 2023
I put to him that the Pakistan government is undertaking active military operations against terrorist groups, but that Swat did not warrant such an operation.[3] He said that when they do an operation in one area the Taliban run away to another area.
[3] Pakistan Security Report, PIPS, 2021
I noted that country information reports a shift away from civilian targets, which is acknowledged by the Taliban to be undermining popular support to a focus on the military and government representatives.[4] He said that when people who are not important are targeted the media does not report it. He added that the government is telling the media not to report it. He gave the example of the Taliban targeting and extorting people, but the government told them for three months not to report this.
[4] Department of Foreign Affairs and Trade, ‘DFAT Country Report: Pakistan’ 25 January 2022 at [2.40]
We discussed the country information the applicant submitted regarding the August, September and October 2022 protests organised by local people in Swat who have been speaking out against the Taliban.
One country information report submitted in the December 2022 bundle includes an assessment, ‘most experts agree that the people of KP will resist such settlements of the Taliban unless they are taken into confidence and provided guarantees that the Taliban will not resort to violence against them.’[5] I put to him that this indicated a different scenario to 2007 when the community welcomed the Taliban. I suggested that with the public’s greater support for the state in its fight against the Taliban it will be harder for the Taliban to establish themselves. He responded that this won’t make things safer, referencing an attack against a driver of a school bus (country information about this attack was provided in the December 2022 submissions) and claiming that the Taliban is trying to control Swat.
[5] Representative’s December 2022 submissions, quoted from ‘PIPS Quarterly Monitor July to September 2022: Perspectives from Pakistan on Afghan Peace and Reconciliation’
I note that the applicant’s representative provided substantial country information. I put to the applicant that the information suggested that a lot of the deaths were military and police deaths. He responded that they still targeted others and again he referenced Idrees Khan’s death.
Articles were provided referencing the peace talks and the end of the ceasefire. I find that a peace agreement cannot be foreseen and as such I place no weight on the peace talks and the associated ‘ceasefire’ that was temporarily agreed upon, noting that in November 2022 peace talks were called off by the TTP.
I note that in the submissions by the applicant’s representative a considerable number of references were made, and articles and data provided, relating to incidents and civilian deaths in the province of Khyber Pakhtunkhwa. While these perspectives on the security situation across the province provide some insight, I place greater weight on district-level information and statistics which are more representative of the circumstances to which the applicant will be returning. This is particularly the case as Khyber Pakhtunkhwa is a large province and Swat is in the northeast not bordering Afghanistan whereas the majority of conflict is in the Waziristan districts which are in the southwest along the border with Afghanistan.
In the December 2022 submission the representative engaged further with the country information. In addition to the issues discussed above the submission noted that Swat has experienced the highest level of civilian deaths since 2015 with seven reported incidents and 13 fatalities, but I note that these statistics cover all incidents including against police and the army and that of the total, four involved civilians and the number of civilian deaths was eight.
I acknowledge the information provided in the December 2022 and January 2023 bundles regarding concerns over an emerging presence of the Taliban in Swat.
While the situation shows signs of deterioration, there are also strong factors that support a view that the security situation won’t revert to the levels of previous years including the anger towards the Taliban expressed by the community, a change in tactics by the Taliban to target military, police and government personnel and to avoid civilians (which is reflected in the two mosque bombings targeting Shia, who they perceive to be apostates, and the police) along with the overall low levels of incidents in Swat. As highlighted by the country information provided by the representative, there are many competing factors in play locally and geopolitically that influence the situation in north-western Pakistan. Taking all of this into consideration and acknowledging the adverse impact of the recent bombing of a mosque in Peshawar, I find that the security situation in Swat in 2023 and into the reasonably foreseeable future will continue as it was in 2022. I now turn to considering the specific circumstances of the applicant.
Considerations
When considering the risk the applicant faces and in referring to ‘the Taliban’ I include in that nomenclature all violent jihadist groups using terrorism in Pakistan including any splinter groups within the Taliban and those outside the official organisational structure of the TTP but still fighting against the government such as Islamic State of Khorasan Province.
The applicant provided a copy of a letter from [Mr H], an ANP member of the Khyber Pakhtunkhwa parliament, in relation to the risks faced by the applicant’s brother, [Mr D]. The translation of the letter details the work his brother did for the ANP. It does not mention the applicant. This letter is relevant insofar as it may indicate an increased exposure to risk for the applicant as a result of his family members. I accept that this is a genuine letter.
The applicant provided two letters from the Vice President of the ANP in Swat, [Mr I]. Among the wider content of the letters the writer notes in reference to the applicant, ‘He worked hard for restortion of peace in the area due to which Talibans, Terrorist, became his soul enemies. The Terrorists, Talibans, are against the ANP, and They are targetting our workers, leaders and also those who have affiliation with Aman Lashkar.’ I accept that this is a genuine letter.

Regarding the activities of the applicant’s father and the activities of the applicant in support of his father, I note that the applicant wrote in reference to the attacks his father encountered, ‘Fortunately, as I was young and at school, my activities were strictly limited to assisting my father during election time so there did not seem to be a risk to me.’ At the hearing I asked whether he faces any risk as a result of his father’s political activity to which he responded that he does not. In considering the situation, noting that the threat letter from 2008 is over 14 years old, preceding the army’s 2009 operations that killed many Taliban members, the destruction of the family’s home during the 2009 Taliban occupation occurred during a tumultuous period of open war, and noting that the applicant did not face any harm or threats of harm for three years after the threat letter, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his father’s activities in support of the ANP or against the Taliban.
The applicant fears harm arising from his past activities. He fears being known as a former ANP member and former village defence committee member. The applicant left Pakistan in 2012, over 10 years ago. While in Pakistan his anti-Taliban activities are best described as low-level, passing on information from his village and coordinating meetings for [Mr E]. Although the title of General Secretary sounds senior, he was the third-ranked official in a group of about 30 members. I accept that in his village he was and would be associated with the ANP and I accept that he would be remembered by his fellow villagers as a former ANP member.
I put to him that in his area no ANP members have been targeted over a number of years and that the assessment by Home Affairs is that ‘Although previously subject to considerable violence at the hands of the Pakistani Taliban, the Awami National Party (ANP) is today the subject of few attacks. This is largely due to the improving security situation in Pakistan.’[6] I acknowledge that the DFAT report notes that ANP members across Pakistan face a moderate risk of terrorist violence, but at page 6 of the DFAT report ‘moderate risk’ is defined to mean that ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour.’
[6] Country of Origin Information Service Section, Department of Home Affairs (2019) Pakistan: CI190118152910373 – Village Defence Committee – Awami National Party
A pattern of behaviour refers to something other than random events. It is relevant to the decision-making process as a well-founded fear of harm must involve ‘systematic and discriminatory’ conduct (as per s 91R(1)(c)) and under complementary protection there must be an actual, subjective intention to inflict harm. A moderate or high risk in DFAT parlance may be aligned with a real chance of serious harm, or it may not; the circumstances of each applicant will determine the case as will contextual country information.
While the ANP and the Taliban have had confrontations in the past and I accept that in at least one of the threats from 2011 his role with the ANP was mentioned, country information on the risks to current members infers that as a former member he would face very little risk. What risk may have existed would be lessened by the amount of time that has passed as those in the Taliban who knew him may have died, reintegrated, resiled from their views or simply moved away. This is particularly the case when considering the visit by unknown men to his family’s house when his brother was threatened. That incident occurred over a decade ago. Who they were or what they were after is unknown and with the passage of time the risk that they had an intention to harm him and would somehow retain that intention would be remote. When considered overall, noting the type of work he undertook, the low-level position he held, the passage of time since he held the position and the level of risk to current members, I find that the applicant faces a remote chance of serious harm and a remote risk of significant harm arising from his activities in support of the ANP.
The above analysis also applies to his association with the ANP through his family members. His father and grandfather were members, and his two brothers contributed to election activities. I accept that the family would be known as supporters of the ANP for their past activities and any future activities they undertake such as his brother [Mr C] continuing his support during elections. But for reasons of their low-level activities and intermittent nature or their contributions being in the distant past, with [Mr C] being the most recent sibling to have contributed in 2018, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his family’s support of the ANP.
In considering the risk the applicant faces arising from his past involvement with the ANP and that of his family, I considered the applicant’s mental health situation and concluded that these risks would not be amplified by the applicant’s condition such that it would raise the level of risk above a real chance or a real risk.
In turning my mind to the applicant’s role with the Amman Lashkar and the village defence committee, I note that his role was important in the context of his village during the tumultuous years following the Taliban’s cessation of control and the government fight against the Taliban. He identified three Taliban homes in his area, he communicated with the military and organised locals in his village. He didn’t officially hold a position, but I accept that he held responsibilities. I find that as a result of this role he came to the attention of the Taliban 12 years ago. At the hearing the applicant said that when the US left Afghanistan there were a lot of militants who were freed and have returned to Swat. He claims that he is known to these people and even if the government were to kill 10 per cent of the Taliban the rest are still free and back in the area.
But I asked whether the Taliban would remember him after more than 10 years’ absence from his area. He said that they are locals. He claimed that the houses that he identified as having Taliban residents have seen the families return to the village. He fears that they may be in Karachi as well. He claimed that he showed to the army three houses in his village which were all destroyed. He said that the families know that it was he who identified their homes to the army.
I asked why these families hadn’t sought payback against his family. He said that he thinks that they blamed him for everything and not his family members. I put to him that in the Pakhtunwali code the oldest male is responsible and yet his brother [Mr C] has not been harmed which under the code would not only be justifiable but expected. He said that it is different as his brother was not involved. He said that Pakhtunwali code is not applied for what he did. He described it as being something that they turn to when you do something wrong on a small scale. This explanation does not align with the country information on the code I had put to the applicant.[7]
[7] Hussain, Raja G., ‘Badal a culture of revenge the impact of collateral damage on Taliban insurgency’, Naval Postgraduate School, 2008
I put to him that it’s of note that no one tried to destroy his house in retaliation. He suspects that the reason is that it will take a long time to plan and then destroy a house and there may be a fear that the Lashkar will then get involved.
I find that as no harm has come to the applicant’s family or house/property that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the Taliban families who were identified by the applicant while he was working for either the Amman Lashkar or the village defence committee.

100. In considering this risk I have also taken into consideration the applicant’s mental health situation and find that this risk would not be amplified by the applicant’s condition such that it would raise the level of risk above a real chance or a real risk.
101. As for harm the applicant fears arising from the Taliban remembering him, the question before me is whether within the current security environment and considering the passage of time, his role from the past would be remembered such that the Taliban would dedicate the resources required to navigate the security forces and target a former low-level member of a small village defence committee or a member of the Amman Lashkar in a small rural village. The applicant repeatedly referenced the killing of Idrees Khan but as the country information provided by the applicant shows, he was a long-serving head of a Village Defence Committee. Country information provided by the applicant and discussed at the hearing is that most attacks now are against high-value targets such as police, military or perceived apostates. Due to the passage of time that would potentially see some Taliban die, resile from their views, move away or reintegrate, noting the security situation in Swat and that he would be a relatively low-level target, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his actions against the Taliban by way of his support to the army and his participation in the village defence committee or Amman Lashkar.
102. As noted above, I do not accept that the applicant will re-join the Amman Lashkar or the village defence committee as a member, i.e. with responsibilities to coordinate with the military, mobilise the populace and report on Taliban activities. But I do accept that he will undertake obligatory duties of all villagers such as participating in night patrols or providing security for Friday prayers.
103. The representative submitted country information from the DFAT Pakistan report of 2022 regarding the situation of members of the village defence committee, but as noted, the applicant would not be a member into the reasonably foreseeable future. As the applicant pointed out, there are roles for those who engage with the military and mobilise community members and there are roles for the community members who are simply instructed to undertake some duties. Due to the reasons discussed above, the applicant falls into the latter category. The relevance of the DFAT report and the killing of Idrees Khan for the applicant becomes marginal. He will not be a member and certainly not a longstanding head of a village defence committee. Instead, the type of activities he would be undertaking would not distinguish him from any other male adult in the community.
104. In such circumstances the general security situation is a better indicator of the regularity with which those on night patrols or undertaking mosque security would encounter the Taliban which in turn could lead to an incident of harm. While I acknowledge that there have been two attacks on mosques over the past two years, this is across the entire province of Khyber Pakhtunkhwa which has many mosques. The applicant’s own experiences during a period when the security situation was far more tenuous was that he never encountered the Taliban while carrying out his duties. There is no claim that any of his family members who undertook night patrols had encounters with the Taliban. Country information on the number of incidents in Swat would suggest that encounters with the Taliban are rare. I find that other than through a direct encounter with the Taliban someone such as the applicant would not be of interest to the Taliban. As the country information and the applicant’s own experience suggest that encounters for people of his profile are rare, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of participating in village security obligations.
105. The applicant claimed that he had a secular upbringing and yet he wrote that he attended Friday prayers. I enquired about this apparent mixed message. He said that he doesn’t pray five times every day. I put to him that many people in Pakistan don’t pray five times a day.[8] Related to this claim, I noted that his lawyer wrote that his family would be seen as liberal. I put to him that he has a father and brother who worked in [Country 1] and family that attends mosque and as such found it difficult to believe that his family would be perceived to be liberal. He responded that his father didn’t have a beard and that they had a TV which the Taliban perceive as Western. He added that he doesn’t have a beard.
106. I accept that against the exacting standards of the Taliban the applicant would be considered liberal as would his family but there is no claim being made that relative to the general population his family or himself would be considered liberal. While I accept that if the applicant was caught by the Taliban, then the harm that he faces may be amplified due to being perceived to be liberal, I do not accept that these traits alone would lead to risk or a real chance of him being targeted. As such I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of being seen as liberal or secular.
107. The applicant’s representative included in their 11 August 2021 submission that as the applicant has lived abroad in a Western country, he faces an increased risk of harm. There is no country information before the Tribunal to suggest that there is an increased risk to Pakistanis who have lived abroad in a Western country. The applicant himself did not express a fear of returning for reasons of having lived in the West. At the hearing I asked whether he held such a fear to which he responded that he didn’t think so. I noted that there were about six million Pakistanis who were living abroad in 2017 of which over a million could be described as living in European countries.[9] I put to him that many of them would return to Pakistan to visit and asked if he thought that they were at risk. He said that he didn’t think so.
108. Based upon the applicant’s assessment which aligns with country information that shows a large number of Pakistanis living in Western countries who would return to visit or repatriate and yet there being no country information that supports a view of a risk of harm to them, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm as a result of having lived in the West.
109. Regarding the applicant’s claims of fearing harm from his uncle, I note that none of the other family members who remain in Swat have been harmed, particularly the applicant’s brother [Mr C] who petitioned the court to investigate the inheritance. The applicant did not provide any evidence of the uncle’s willingness to wield force other than to say that he has three sons and some guns. Without any claims of threats or evidence of harm to any family members I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his family’s ongoing dispute with the uncle over their claims for the ownership of the land.
110. Regarding the claim that the uncle threatened the applicant with harm in approximately 2014 I note that the uncle’s imprisonment ended in 2010 and the applicant remained in Pakistan in his home with his family or relatives’ homes. Through this period the uncle did not harm him. As the uncle did not harm him then, has not harmed his brother and has not harmed any other member of the family and no further threats have been made to him or his family members, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from his uncle due to his belief that the applicant had reported him to the Pakistani authorities.
[8] Pew Research Center, The World’s Muslims: Unity and Diversity, Chapter 2: Religious Commitment IOM Pakistan: Migration Snapshot. August 2019 considerations
111. When considered cumulatively I have turned my mind to all of the above claims and then considered them in instances in which the risks or the harm are amplified. For example, what would be the consequences of a former member of a village defence committee, the ANP and Amman Lashkar, if he were to encounter the Taliban on a night patrol and be captured, how would his past along with his time spent in the West and less rigorous adherence to Islam influence his treatment. While I accept that it would be more likely that such a profile could lead to serious harm being inflicted, I find that based upon past experience and country information the chance of such a scenario occurring is remote.
112. Alternatively, I note that the uncle could, for example, draw upon his past contacts with the Taliban and notify them of his return as could any other member of the community in which the applicant lives. But as noted above, even if he was reported, I found that due to his profile he would not face a real chance of serious harm or a real risk of significant harm. It is possible that his uncle would facilitate some harm being done to him, but were he willing to do such a thing it would have been targeted at his brother which hasn’t happened to date nor is there an indication that it may happen into the reasonably foreseeable future. As such, even when considered cumulatively I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
113. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION

116. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Denis Dragovic
Deputy President

[2023] AATA 1225

14 February 2023

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