1936420 (Refugee) - [2024] ARTA 633

1936420 (REFUGEE) [2024] ARTA 633 (14 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Tony TRAN
Respondent:Minister for Home Affairs

Tribunal Number: 1936420
Tribunal:Denis Dragovic
Date:14 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Senior Member D. Dragovic

Statement made on 14 November 2024 at 10:23 AM
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – village defence committee member – opposition to the Pakistan Taliban – religion – freedom of religious opinion – threatening call from Taliban – fear of killing – mental health issues – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MZAAJ v MIBP [2015] FCA 478
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Pakistan. He applied for the visa on 3 October 2018.
The delegate refused to grant the visa. The applicant appealed this decision to the then Administrative Appeals Tribunal.
The applicant appeared before the Administrative Review Tribunal (“the Tribunal”) on 23 October 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Mental health
The applicant has been diagnosed as having Major Depressive Disorder along with severe Anxiety.
Recognising the additional challenges that this may pose on the applicant’s ability to present his case regular breaks, every approximately half hour, were provided and in addition a two-week period for post hearing submissions was provided for the applicant to provide further submissions.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old Pakistani male who was born and raised in [Town 1], Swat district, Khyber Pakhtunkhwa province. He has a wife and [number] children. [Details of children deleted.] The applicant’s father had [specified siblings] and as such the applicant described having a large extended family.
The applicant’s family home is in [Town 1], [location deleted].
The applicant worked as a seaman on merchant ships and as such was often not present in Pakistan. He wrote that he would be away for 9 months and up to 12 or 13 months. He would remain in Pakistan for 3 to 4 months and then return to sea.[1]
[1] October 2024 statement
The applicant described in his written statement his first experiences of the Taliban: ‘I was strongly opposing the Taliban and their strict ideologies. The founder of the Taliban had existed long before its formation and I had been opposing their establishment and practices since 1995.’ At the hearing he clarified that he had objections to the Taliban before Mullah Fazlullah came to prominence in the early 2000s. He said that their version of Islam was very strict, that they were against girls’ education, against watching television, and forced people to grow their beards. He recalled them starting to preach on FM radio around 2005 onwards. He claims that he stood up against them but when asked how, he couldn’t recall. I find that the applicant’s actions vis-à-vis the Taliban from before the rise of Mullah Fazlullah in the mid-2000s were such that they pose no consequential impact on his future risk and as such are not considered further.
The applicant first became involved with the then newly established village defence committees in 2009. He said that he did so when he was not at sea. He claimed that his role involved identifying former Taliban fighters and their supporters, patrolling and night watch. He described being a part of a patrol group of 5-6 people covering a street area of about 20-30 houses.
The applicant claimed that he received a warning letter and threatening call in 2016. He claimed that the call came directly from a Taliban commander from his locality. I noted that it would have been seven years after his involvement with the VDC had begun. He suggested that it was probably that he didn’t come onto their radar as he was at sea often. He surmised that they couldn’t find the military, so they started targeting VDC members.
In a statement submitted following the hearing, the applicant added to his response to this question by suggesting that in 2015 senior VDC members had reported militants using local residences for temporary shelters and that the military demolished the houses they were suspected of staying in. He thought that such action may have ‘intensified militant resentment’ toward the VDC, ‘possibly triggering retaliation.’ He added that his role as a head of the muhalas alongside the increased identification of Taliban sanctuary houses would have made him a target.
The applicant had noted that every family had to contribute a male member to the VDC and that all of them faced risks as he did. He said that all of the members he knew were receiving threat letters at the time.
The applicant clarified at the hearing that he was an elder in his muhala, a type of neighbourhood grouping. He had written in his 2024 statement that he was a senior among six in their village. In his statements he wrote that he was the head of muhalas since 2014. The apparent discrepancy is nuanced but inconsequential when considering the risk the applicant faces into the future I accept that the applicant had a leading role in his neighbourhood.
He said that through that role he would be involved in the community and that a part of that responsibility was recruit people into the VDC and to identify any strangers in the community. He said that his risks arose from his VDC role where he identified Taliban houses. He said that as a representative of a muhala and on the VDC he had a higher profile in the VDC. He claimed to have spent a lot of time in the VDC office. He described the VDC office as the office for all VDCs in [Town 1] and clarified that the military would not come to the VDC office.
The applicant claimed that he received a threatening call from a Taliban commander from the locality (in his October 2024 statement it was his followers who called him) and about a week later his family home was raided by Taliban in March or April 2017. He described it as involving four men who entered the residence with guns, but he hid on the roof. He said that they smashed all the windows and punched his wife, asking about him. He claimed that they were pressuring his family members to reveal his whereabouts. He said that he was lucky that they didn’t look on the roof where he was hiding. I noted that roofs appear to be flat[2] which I understood to be a design element to allow families to sleep during hot nights, and that it would be strange that that they didn’t look there. He said that he was hiding in a storage area on the roof.
[2] Observation from photos of [Town 1]
The applicant confirmed that his eldest son was [range] years of age at that time, and nothing happened to him. He said that the Taliban were after the applicant and not the son.
I noted that he had earlier confirmed that every household had to contribute a male to the VDC and as such many households throughout [Town 1] would have been equally in the Taliban’s crosshairs and as such I found it hard to believe that they chose him, especially considering that he was hardly there due to his seaman obligations. He said that he doesn’t know what happened to others in [Town 1]. I find this hard to believe. A man who claims to have been a senior figure in his neighbourhood and heavily involved with the VDC to not know the situation of others in the neighbourhood is implausible. Instead, I find that the applicant had knowledge of all of the incidents in his village and that he provided a complete picture of the situation to the Tribunal.
The applicant claimed that in July 2017 he and other VDC members were fired at by the Taliban as they were leaving the VDC office. He claims that a fellow VDC member was killed and another injured. He said that in total there were five people leaving together heading to their neighbourhoods and that the Taliban came out of the crops and started shooting at them. He doesn’t believe that he was being targeted but rather that it was directed at VDC members leaving the office.
I put to him that there is no record of such an incident in the database that covers terrorist activity and noted that the death of a VDC member would be widely reported.[3] The applicant did not have anything to add other than naming the victim.
[3] South Asia Terrorism Poral
The applicant in his original claims suggests that it was a targeted attack on him, but at the hearing and in his post-hearing statement he clarified that it was targeted at those leaving the VDC offices in general and not him exclusively.
The applicant claims that he fled to Karachi in mid-2017 out of fear for his life in Swat. I asked why he left his family behind as he was suggesting that it was a permanent move. He said that he wanted to get onto a ship and get out of the environment. In addition, he said that it had already been 3-4 months that he had been in the village, so it was time to go.
The applicant claims that he was attacked by the Taliban on [a day in] September 2017 while in Karachi. He said that he was going from the shipping office to his residence and [number] people came and hit him on the head with a steel rod. He said that he had received a call prior to this incident in which the caller said that they had identified him as a VDC member. I noted that Karachi has 14 million people, asking how they could have found him. He said that the area where he was attacked, [named], there are a lot of Pashtuns there.
The applicant said that he recognised that they were Taliban based on their dress and hair but otherwise their faces were covered. I noted at the hearing that in one of his statements he had written that he had recognised one of them and asked how he could recognise one of them if they had their faces covered. He said that he hadn’t recognised them as individuals but only as Taliban.
He said that he can’t remember what type of steel rod was used but just that he remembers seeing a metal rod. I asked how he could run away after being hit by a steel rod which could break a skull. He said that they hit him once, and then other people who were there gathered and the Taliban must have become scared and so they ran away.
The applicant clarified that they were not carrying weapons and that they did not say anything to him.
The applicant said that his head was bleeding from the attack but not so deep that he had to go to hospital. He said that he doesn’t have a conflict with others and so didn’t believe it to be personal nor a robbery. He said that if it was a robbery, they would have robbed him or asked for money, but they didn’t. I noted that people came and so maybe they didn’t have a chance to rob him as they felt compelled to run away. He said that none of them said anything that would indicate that it was a robbery.
The applicant said that after the attack he went to a clinic, had his head bandaged, and then called a friend. He said that his injury didn’t affect his ability to join his ship a few days later.
In post hearing submissions the representative provided an article from 2016 that included:
All VDC members and peace activists are on the hit list of the Taliban in Swat where unofficial data reveals that over 50 village defence committee members or peace activists have been killed by suspected militants since 2009.[4]
[4] Fazal Khaliq, ‘Village defence body member, guard shot dead’ DAWN (24 May 2016) >
In the applicant’s October 2024 statement the applicant suggested that because he received a phone call threatening him before the attack that it is indicative that the attack was targeted and not a random attempted robbery, though the applicant acknowledges that in Karachi robbery was common. He added that they were dressed as militants rather than as street criminals.
I asked whether the applicant would join the VDC if he returned to [Town 1]. He said that he would. I noted that he is [age] years old and asked if it is common for people of his age to join the VDC. He said that he is already a target of the Taliban so he would do it anyway. He said that people of that age do join the VDC.
He asserted that the people would remember that he was a member of the VDC ten-fifteen years ago and so the Taliban would know of his past.
As noted, the applicant has a large extended family. He confirmed that none of his extended family have been harmed in the past five years. He clarified that they weren’t a part of the VDC and as such there isn’t a reason for them to be harmed. I noted that he had earlier said that one male member from each family had to participate in the VDC. He acknowledged this and added that among his relatives one nephew and a son-in-law had been in the VDC. He claims that he doesn’t know if they had been harmed, which I do not accept and instead find that they had not been harmed as he would know if his close relatives had been harmed. He said that they both came to Australia around the same time as he did.
The applicant confirmed that he did not undertake any other activities that could be perceived to be anti-Taliban.
Discussion of country information
I noted to the applicant that there were no civilian deaths in Swat in 2023 and one incident leading to 2 deaths in 2024, according to one database. I asked for his comments. He referenced the 2022 bomb blast that killed 17 people which he referenced as being in the same year as the assassination of Idrees Khan, a VDC leader. He mentioned an attack the day before the hearing in Tihrah Valley. Other incidents he listed included a 11 October Jirga for Peace organised by the Pashtun Tahafuz Movement and another attack in Bannu. I note that none of these attacks are from Swat District or any area in Pakistan that the applicant has a reason to travel to or through.
I noted that Idrees Khan was head of the VDC and a village elder who according to a news report submitted in the post-hearing package was also a former leader of a tribal force who fought against the Taliban. The news report provided from 2022 noted, ‘Local residents said Tuesday’s blast was the first major explosion in Swat since the 2009 military operation.’
In the same package the representative submitted an article referencing another attack in 2022 on a school van that killed the driver and injured two children.
I suggested that the applicant’s profile was different to that of Idrees Khan. The applicant said that his role as a sub-village mahala made him senior.
I noted that those targeted are policemen, alongside other prominent personalities, tribal elders, and religious leaders according to one think tank that monitors Taliban attacks in Pakistan.[5] I noted that he doesn’t fall into any of those general categories. He said that he was a leader of a community. He said that he would have been targeted had he stayed.
[5] >
I noted that Swat district has a population of 2.3 million and that the number of incidents relative to the size of the district suggests that it is moderately safe. He said that there have been a lot of incidents, listing police stations and schools being targeted. He named the school Charbah which was targeted a few years ago according to the applicant (this is the same attack as the above-mentioned school van attack). He gave the example of Matta which was from 2022 according to the applicant.
I noted that some experts suggest that the Taliban have a localized focus on the geographical area along the border with Afghanistan. During peace negotiations in Kabul between the Taliban and Pakistani government the Taliban stressed that the reinstatement of the semiautonomous status of the Tribal Belt and the implementation of sharia there were its key demands.[6] The applicant confirmed that Swat is not a part of the tribunal belt but said that there are a lot of Taliban in Swat.
[6] >
I suggested that experts have noted that by the spring of 2021, the Taliban’s relatively new Emir had implemented very significant changes in the Taliban’s modus operandi to avoid past violations that were central to its decline. His new approach significantly reduced attacks against civilians and considerably reduced civilian casualties in attacks.[7] The applicant said that he is not a civilian as he was a leader of the community. I clarified that I understood the term meaning police and military. The applicant said that people such as Idrees Khan and others that he can’t remember their names were not military or police and yet were targeted.
[7] ibid

I noted that the Centre for Research and Security Studies as of a mid-2024 report described Swat district as ‘relatively peaceful.’[8] The applicant said that there is no peace in Swat. He asked rhetorically, why are people protesting in Kanju and Kabal. I noted that one reason is because of the proposed military operation in Khyber Pakhtunkhwa. He said that people are protesting because they know that the military is connected to the Taliban and that the military indirectly supports the Taliban. He doesn’t believe that the military can bring peace. As evidence, he described how civilians go to the main cities and they are searched, and yet militants are able to come with weapons to those same areas.
[8] >
I put to the applicant that the last military operation in 2009 led to a reduction in Taliban activity and asked why this military operation wouldn’t lead to the same outcome. He said that it wouldn’t help this time.
With regards to the claim that the Taliban are now stronger because of their compatriots controlling Afghanistan. I noted that they have held power in Kabul for three years and that this is enough time to see how the situation will play out. He said that the Afghan Taliban could be helping the Pakistan Taliban in the border areas. He added rhetorically, if there are no Taliban in the area, why are the military proposing an operation.
I asked the applicant if he had a fear of any other group, to which he responded that he does not. There is no evidence before me that would suggest that groups other than the Taliban pose a threat to the applicant considering his specific profile.
In post-hearing submissions the representative referenced additional attacks in the period following the hearing. They included the deaths of four militants in Bannu District, Khyber Pakhtunkhwa; the death of a peace committee member in South Waziristan, Khyber Pakhtunkhwa; and attacks on security forces in South Waziristan. I note that they are all Tribal Belt districts that border with Afghanistan and as discussed with the applicant at the hearing have a different place in the current conflict between the Pakistan Taliban and the Pakistan government.
The representative also provided verbatim news reports from 2022 that analysed the security events then. While relevant, I place more weight on current information and less weight on analysis from a few years back.
When considering the risks the applicant faces into the reasonably foreseeable future it is relevant to consider the general security situation because a perilous security environment amplifies certain individual risks, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, violence can occur with virtual impunity including general attacks based upon, for example, political belief or association. Even when there isn’t chaos but there is a presence in the local community of active elements of the Taliban, then their ability to take action against those who hold opposing views or are deemed undesirable may become relatively easier. Such environments may heighten the level of risk to the applicant where, otherwise, in peaceful and secure environments the threats to him would be limited.
The security situation in Swat District has been described by a think tank as relatively peaceful. There is no evidence to suggest a presence of the Taliban in the urban areas while in the rural areas I accept that some would come and go. I discussed with the applicant the security situation which included very few incidents affecting civilians including the reasons why and the data that supports this. We discussed the potential factors influencing the security situation into the future. Overall, while I acknowledge that there is some Taliban activity in the Tribal Belt consisting of those districts along the Afghan border, I find that the situation in Swat district is and will remain moderately safe.
CONSIDERATIONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has in the past undertaken anti-Taliban activities. I accept that he was a member of a VDC which had certain responsibilities including undertaking patrols, he identified houses of militants and recruited new members. He claims that these activities together with his other community role as a senior muhala or head of the muhalas brought him to the Taliban’s attention. I accept that this is what happened in 2016 when the applicant received a threat letter and a call and in 2017 when he was again called. I also accept despite the lack of independent country information that shots were fired by the Taliban at the departing VDC members and a VDC member was killed as they were leaving the VDC office in 2017. I accept these claims as country information is supportive of the Taliban having an animosity towards those who supported the VDC. But an animosity that culminates in a few phone calls being made or a threat letter sent once does not necessarily translate into a direct interest in dedicating resources to hunt down the applicant.
With regards to the applicant’s claims that the Taliban came to his house in an urban area, pushed through his family members, searched for him but after he hid in a storage room on the roof they left. He also claimed that he was of such interest to the Taliban that while in Karachi they called him to tell him they had found him, before attacking him on the streets. I find both claims not credible and do not accept them for the following reasons.
I acknowledge the country information that was provided regarding the then situation in Swat including that ‘VDC members and peace activists are on the hit list of the Taliban in Swat…’ and that this lends some weight to the applicant’s claims.
But I note that the applicant held no leadership role in the VDC. He was at sea through most of the year. He did not kill anyone and there is no indication that the Taliban know that he identified a Taliban home. In other words, the applicant was a low-level intermittent contributor to a wider conflict against the Taliban. The country information that was discussed and presented by the representative in submissions describes Swat District as not having a major bomb attack between 2009-2022 and having single digit incidents and single digit civilian deaths from 2015 through to 2024. This is indicative of the general security situation that limited the free movement of the Taliban through Swat as well as the targeting choices that the Taliban were making at the time. Would the Taliban have chosen to target a low-level intermittent contributor in this environment? When I asked the applicant to speculate why would the Taliban risk being caught by the security forces while travelling through an urban area controlled by the state authorities, to find him, he said that they have their own guns and that they are brave, and that they came when it was dark. I find that this incident did not occur for the reason that it is implausible.
With regards to the Karachi incidents, both the phone call and attack, the applicant claims that among the population of Karachi, in the Pashtun areas, he was identified by Taliban who knew him, called him to warn him that they found him and then sent a group of men to get him. I do not accept that the applicant would have been known to the Taliban beyond those from [Town 1]. Even accepting that he was sighted by someone from [Town 1] who had known him, it is vexing that he claims that then some Taliban would have inexplicably called him to warn him that they knew where he was, before sending another group of people to find him while he was on the street and to harm him. That these men who were sent to harm him came without weapons other than a steel rod, hit him on the head, and then at the first sign of the public fled is another reason to question the applicant’s interpretation of events. If the Taliban deemed the applicant an important enough target to send a group of people to harm him, it is confounding as to why they would come without weapons and flee when the public gathers rather than finish the job. I find that the applicant’s claims are so far fetched that they are implausible.
In making a finding of fact on these claimed events I note that the applicant provided witness statements and that his psychologist saw his diagnosis as being aligned with the claimed experiences.
With regards to the psychologist’s letter, that the symptoms are indicative of a past that is in alignment with the self-narrated event lends minimal weight to my finding of fact on this matter. This is because the applicant’s mental health symptoms could arise from some of the claimed events or none, or others that he has not detailed. It is not for the psychologist to make a finding of fact but rather the Tribunal and that they are found to align lends little weight.
With regards to the witnesses. The Tribunal attempted to call the applicant’s witnesses who could provide relevant evidence pertaining to the two incidents of concern. The Tribunal attempted to call Mr Imran Khan who provided a statement relating to the Karachi incident, although he was not a witness to it. Mr Khan did not answer the call.
The Tribunal then tried to call the applicant’s wife who would have been able to provide evidence relating to the house invasion. The applicant’s wife did not answer the call.
In an abundance of caution to ensure that the phone system was being correctly dialled a Tribunal Officer was called and a further attempt was made to call the witnesses. This further attempt for the witnesses to participate was also not successful. The dial tone that was heard was a standard dial tone. There was no reason to assume that the fault was with the Tribunal’s equipment.
The statement from the applicant’s wife repeated the same description of the event and adds some weight to considerations of the veracity of the narration, but I note that the wife is not a disinterested party.
When considering all of the evidence, I find that the applicant’s house was not raided by the Taliban as claimed. I find that the applicant was attacked in Karachi but that it was a random attack which had no connection to his past activities and has no future bearing on his risks upon return to Pakistan. I do not accept that the call to him while in Karachi was made.
Fear of harm from the Taliban
Based on the findings of fact above, I note that the applicant has not been a person of interest to the Taliban such that they would commit the resources to target him through all of the years of his involvement other than make a few calls and send a threatening letter. With the passage of time since the applicant left Pakistan the level of his past standing with the Taliban would diminish an already low profile to an even less consequential profile. Accepting that the applicant would play a role with the VDC into the future and that his past would be known, I find that his anti-Taliban profile into the future would be of a very low-level.
The applicant argued in his October 2024 statement that the Taliban frequently target those with lower profiles as they are easier targets. Were the applicant returning to the Tribal Belt where the Taliban are highly active, I may have some sympathy for this argument, but as the applicant is returning to an area that is tightly held by the Pakistan authorities in which there have been very few incidents involving civilians it is not a convincing argument because the risks to the Taliban would outweigh the benefits of harming a low-level anti-Taliban individual.
The applicant claimed that he had personal views that were in contradiction to those of the Taliban, he explicitly referenced his personal view of the right to freedom of religion. I accept that he has such a view, but I find that it only marginally adds to his risk profile. That is because the situation in Swat is controlled by the Pakistan authorities and for the Taliban to harm someone, they would have to choose to dedicate the resources and potentially risk losing the resources in the pursuit of a target. That the applicant has a personal view that he hasn’t publicly expressed would be inconsequential to the Taliban when considering their strategic options.
When considering the risks to the applicant, having found that the applicant would play some role in a VDC in [Town 1] upon return, noting his past and his overall profile and taking into consideration the security situation in Swat, I find that into the reasonably foreseeable future the applicant does not face a real chance of serious harm nor a real risk of significant harm from the Taliban.
To avoid doubt, I have also considered whether the applicant’s views on freedom of religion would lead him to face harm from others and not only the Taliban. The applicant explicitly repeatedly stated that he only fears the Taliban. He has not undertaken any activities relating to his stated views on religion and he has not faced harm in the past for those views. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of his view towards the right of freedom of religion.
We discussed whether the applicant fears harm for reasons of being Pashtun noting that Khyber Pakhtunkhwa is the home of Pashtuns. When this was put to the applicant, he said that he doesn’t fear harm for reasons of being a Pashtun. Based on the evidence before me and noting the applicant’s past as informing the future I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from being Pashtun.
We discussed the applicant being a failed asylum seeker from a Western country and specifically in that situation whether there is someone who would harm him. The applicant said that his risk arises from being a member of the VDC. He said that his only fear is from the Taliban and no one else. He reinforced that his fears are for the reasons of his past activities and nothing else. I note that the representative had included this claim in submissions but having considered the applicant’s evidence and circumstances in the context of the country information available to me, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of having lived in the West and being failed asylum seeker.
The applicant has mental health challenges. As a potential source of harm, I asked how his mental health exposes him to harm. He said that there will be no proper treatment and that as a result, his symptoms will increase. I noted that medication for mental health diagnosis such as he is grappling with is available in Pakistan[9] and doctors prescribe the medication not psychologists so why would he not have access to proper treatment. He agreed that there are doctors but not psychologists. I noted that there are psychologists in Swat and others who offer video consultation.[10] He simply said he can’t. When I asked that he expand on his comment, he reverted to his fears of harm from the Taliban.
[9] >
In considering the applicant’s claims of fearing harm from his mental health, I note that they were largely unarticulated. That aside, I note that there is no evidence before me that suggests decisions are being made in a discriminatory manner to prevent the applicant from accessing medication or psychological treatment. Without evidence of discriminatory treatment, the applicant cannot meet the criteria set out in s36(2)(a).
I have also considered the applicant’s mental health claims in the context of complementary protection. ‘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.
With regards to arbitrary deprivation of life, the courts have considered whether an inability to access the necessary medical support which in turn would lead to the loss of life constitutes arbitrary deprivation of life. In MZAAJ v MIBP [2015] in obiter dicta comments at [42] Judge Riley notes that the arbitrary deprivation of life ‘does not concern the consequences of scarce medical resources in developing countries.’
There is no claim that the applicant faces the death penalty.
Relevant to these considerations is that the definition of torture in the Act requires an element of intent. It is defined as ‘an act or omission by which severe pain or suffering … is intentionally inflicted on a person’ for a specified purpose or reason. There are similar requirements of intention in the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. In the case of the applicant, there is no specific actor that is seeking to harm him by way of depriving him of medical resources. The differential level of medical treatment between Australia and Pakistan is not a basis upon which Australia’s protection obligations are triggered.
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 relating to his mental health.
Cumulative
The applicant’s fears arise from the Taliban and his views that are contrary to their theology, along with claims including that the applicant would be harmed for reasons of being a failed asylum seeker who spent a period of time in the West, someone with mental health challenges and that he is a Pashtun. But as noted above, many of these other claims were dismissed by the applicant and the evidence before me suggests that they may only marginally add to the applicant’s risk profile. For example, if the applicant’s past was known to Taliban sympathisers in the community but they chose not to act against him on their knowledge of his past, would they be tempted to act against him knowing that in addition he returned from Australia where he was exposed to Western thinking? This is possible. But ultimately, through whichever motivation the applicant’s return is made known to the Taliban, the Taliban would need to determine whether they would risk their resources to hunt down and harm the applicant who lives in a district that is tightly controlled by the Pakistan authorities and deemed moderately safe. I find that they would not.
I also find that the applicant’s mental health does not amplify any of his other risks as these risks are at the hands of others and not influenced by the nature of his mental health. For example, even were the applicant to be on patrol with the VDC while bearing the burden of depression and anxiety, there is no increase in the likelihood of an attack by the Taliban simply for the reason of his mental health.
Overall, there are no combinations of claims and circumstances that raise the applicant’s level of risk of facing serious or significant harm above a real chance or a real risk respectively.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

The Tribunal affirms the decision under review.
Date of hearing: 23 October 2024
Representative for the Applicant: Tony Tran
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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