2000840 (Refugee) - [2024] ARTA 586

2000840 (REFUGEE) [2024] ARTA 586 (1 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2000840
Tribunal:General Member M Brereton
Date:1 November 2024

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

Statement made on 01 November 2024 at 11:18am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from Taliban – voluntary work for NGO – brother an active member of political party, and family supporters – family attacked and relatives killed – applicant later detained and interrogated by military and accused of being a Taliban accomplice – mental health and treatment – delay in applying for protection visa – application made before student visa expired – new claim as supporter of political movement which was proscribed after application made – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c)
Administrative Review Tribunal Act 2024 (Cth), s 52
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 8 January 2020 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 national of Pakistan, applied for the visa on 5 June 2018. The delegate accepted the applicant’s general claims but was not satisfied there was evidence of an ongoing profile. The delegate refused to grant the visa on the basis that the fear of harm was both speculative and fanciful.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was invited to attend a hearing before the Tribunal on 18 October 2024. The applicant and his representative attended on that day, but the arranged interpreter was unable to attend. The Tribunal made efforts to obtain a new interpreter but was unable to do so within sufficient time to allow the applicant a meaningful hearing. The Tribunal decided to vacate the hearing and re list the matter.
The applicant appeared before the Tribunal on 24 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review.
BACKGROUND
Evidence before the Department
Protection visa application
In his application for the protection visa the applicant stated that he and his family lived in [Village 1] and were opposed to the Taliban’s[1] occupation and strict Islamisation of Swat valley during 2008 onward. The applicant's family was attacked and in one attack the applicant’s grandmother and brother-in-law were killed. The applicant’s sister ([Ms A]) and brother ([Mr B]) were severely injured. After the attack the family left Swat and went to [Town]. After the Taliban was defeated, the family returned to their home, but other problems arose. The applicant was kidnapped by the military and tortured on two occasions, being accused of being a Taliban accomplice.
[1] Pakistani Taliban, also known as the TTP.
The applicant is fearful that he can be located and harmed anywhere in Pakistan.
Supporting documents
The applicant provided a statement dated 1 August 2019. He provided photographs of a damaged building, a photograph of an injured female said to be his sister, certificates from a [Non-government organisation] programme, and identity and educational documents.
The interview
The applicant and his then migration agent attended an interview with an officer of the Department (not the delegate who made the decision) on 8 August 2019. The applicant lodged a further submission on 20 August 2019.
The decision
The delegate accepted the following:
a.The applicant is a Pashtun male from [Village 1] in Tehsil Kabal, Swat district.
b.His family members in Pakistan are residing at the family home in [Village 1].
c.In 2007 the home belonging to the family of the applicant’s (now deceased) brother-in-law was attacked.
d.The applicant and his family support the Awami National Party (ANP).
e.The applicant unofficially promoted [NGO] programs (which taught first aid, sewing and cooking) to local women in his village in about 2014.
f.The applicant received threatening calls from anonymous people. The calls were related to the [NGO] programs.
g.[In] December 2014, members of the Pakistani army detained the applicant for two weeks. [In] November 2017, he was again detained and interrogated by the army. He was released [in] December 2017.
h.He left Pakistan [in] February 2018. The airport authorities did not ask him any questions and he had no problems leaving Pakistan.
The applicant had also claimed to be a member of the Pukhtoon Students’ Federation (PSF) in Pakistan. The interviewer did not ask any questions about this and the delegate does not appear to have made a finding in respect of this claim.
Evidence before the Tribunal
Pre-hearing submissions
The applicant, through his representative, provided the following pre-hearing information:
a.Pre-hearing submissions dated 11 October 2024.
b.Applicant’s statutory declaration signed 10 October 2024.
c.Statement of witness – applicant’s brother [Mr B] dated 8 October 2024.
d.Statement of witness – applicant’s sister [Ms A] dated 10 October 2024.
e.Letter in Support from Awami National Party Swat, dated [October] 2024.
f.Counselling Report dated 3 October 2024.
g.Copy of Pakistan Government Gazette terrorism listing dated 6 October 2024.
h.Copies of the applicant’s [Social media] posts (two pages).
On 21 October 2024, the applicant provided a copy of a psychologist’s report dated 17 October 2024.
Hearing
As set out above, the hearing listed for 18 October 2024 was vacated because there was no interpreter available. The applicant attended the relisted hearing on 24 October 2024. The applicant’s and his witness’s oral evidence at hearing is considered below.
The hearing was conducted with the assistance of an interpreter, but the interpreter advised the Tribunal that there were some differences in dialect. The interpreter explained that he is from Afghanistan and the applicant is from Pakistan. The language is the same but there may be different words, different expressions, and different pronunciation issues. The Tribunal discussed this with the applicant’s representative and decided to proceed with the hearing. It asked the applicant to let the Tribunal know if there were any issues with understanding questions, or if the applicant was concerned with the Tribunal’s understanding of his evidence. The Tribunal told the representative that if there were any issues that may turn on interpretation, the Tribunal will invite further evidence. In the event, the Tribunal has not found it necessary to do so.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is the applicant’s fear of harm from the Pakistani authorities, and from the Pakistani Taliban, should he return to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a Pakistani citizen and a Pashtun from [aVillage 1] in the Khyber Pakhtunkhwa (KP) region of Pakistan. He has provided copies of Pakistani identity documents to the Department. At the interview with the Department, he was questioned about his birthplace and the delegate accepted the applicant’s claimed identity. The Tribunal has no information before it which casts doubt on the applicant’s claimed identity, ethnicity, or birthplace. There is no information indicating that the applicant has a right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of Pakistan, and that Pakistan is the receiving country and country of reference for the purposes of this application. The Tribunal finds that the applicant is of the Pashtun ethnicity and that he is from the KP region of Pakistan.
Delay
The applicant arrived in Australia in February 2018 on a student visa but did not apply for the protection visa until June 2017. At the interview with the Department the applicant was asked why he did not apply for protection sooner. In response, the applicant stated that he applied for his protection visa whilst his student visa was still valid. He said that he was new in Australia, he had no idea of his rights (to apply for protection) and did not know what to do. He was open and forthright with the interviewer, stating that his intention in applying for the student visa was to get out of Pakistan and come to Australia. The Tribunal takes into account that he applied for the protection visa before the student visa expired, has remained engaged with the protection process, and has not breached immigration laws. The Tribunal does not draw any adverse inferences as to the applicant’s credibility and does not consider that the delay, in this particular case, casts any doubt on the credibility of the claims.
New Claim
The applicant claims to be a supporter of the Pashtun Tahafuz Movement (PTM), a political movement. This claim was not raised before the primary decision was made. However, the applicant claims that PTM began agitating as a protest movement relatively recently and that members and protestors now face disappearance and false accusations. He has provided a copy of a Pakistani Government document dated 6 October 2024 that states the PTM has been proscribed as a terrorist organisation by Pakistan. The Tribunal accepts that the profile of the PTM has changed since the date of the primary decision and as a consequence, the applicant’s fear of harm did not exist before the primary decision was made and could not have been raised. The Tribunal is satisfied that the applicant has a reasonable explanation for why this new claim was not raised.
Applicant’s History in Pakistan
The Tribunal has considered the applicant’s responses to the interviewing officer at the Departmental interview. The applicant provided a statement to the Department with his application and in his statutory declaration to the Tribunal, he confirms that he has read that statement recently and that it is true.
The applicant’s representative urges the Tribunal to consider that the delegate did not raise any concerns or make any adverse findings as to credibility, and broadly accepted the applicant’s claims as to history and experiences in Pakistan. The representative submits that the Tribunal is not bound by the delegate’s findings, but the materials before the delegate, and the delegate’s findings, are before the Tribunal. The representative submits that s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), provides the Tribunal with the power to inform itself on any matter in such manner as it thinks appropriate.
As noted above, the Tribunal commenced operating on 14 October 2024. The ART Act provides at s 52:
The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate.
The Tribunal has considered the delegate’s findings, together with the materials that were before the delegate, and the applicant’s statutory declaration to the Tribunal. The Tribunal has also considered the applicant’s evidence and presentment at the hearing. The Tribunal also notes the medical evidence before it that:
[The applicant’s] mental health is severely impacted by his past trauma and current fears of persecution. He has accessed treatment and experienced some remission of symptoms. However, he requires ongoing counselling for at least 18 months on a monthly basis. His psychological recovery is contingent on his confidence in his future safety. He has shown significant exacerbation of symptoms in response to events of persecution and killings in Pakistan.[2]
[2] Psychologist report dated 17 October 2024.
The delegate noted that the applicant was able to depart Pakistan on his lawful passport, through an international airport, without any hindrance or interest from the authorities. The information before the delegate and the Tribunal states that the Pakistani authorities maintain exit control lists of persons of interest and on its face, the nature of the applicant’s departure may suggest he was not of any interest to the authorities. However, the applicant’s evidence is that he was targeted and questioned by troops in KP. They did not refer to any specific information or allegations against him, but nevertheless he was suspected and questioned on two separate occasions as a potential Taliban supporter in the area. In the Tribunal’s view, the applicant’s profile was not significant enough to warrant inclusion on a national control list, but this does not mean he did not have any adverse profile with the authorities. The Tribunal does not place weight on his ability to depart Pakistan at the time or in the manner that he did.
The Tribunal finds the applicant to be a credible and forthright witness. The applicant’s evidence is corroborated by the evidence given by his sister, [Ms A], and the statement of his brother, [Mr B]. The Tribunal has considered the representative’s submission in respect of the delegate’s findings re credibility. Having regard to all the above, the Tribunal finds that the applicant has been a witness of truth in relation to his past experiences and history in Pakistan.
The Tribunal finds:
a.The applicant’s brother, [Mr B], has been an active member of the ANP and is currently living in [Country 1].
b.The applicant’s family received threats from the Taliban because of [Mr B]’s activities with the ANP.
c.In 2007, the family was visiting [Ms A] at her husband’s house. The house was attacked because [Mr B] was present.
d.The applicant’s grandmother was killed in the attack. [Ms A]’s husband died of wounds after the attack. [Ms A] was badly wounded and lost her leg. [Mr B] was badly injured and fled to [Country 1] when he was able to do so.
e.The applicant attended university in Pakistan. While at university he was a member of the PSF.
f.The applicant assisted (on a voluntary basis) [a non-government organisation] that provided training and support to women in his local area. The applicant helped by providing transport to and from meetings and arranging meeting venues.
g.The applicant was arrested by the Pakistani army on two occasions – once in 2014 and once in 2017.
h.Each time, the army came to the family home, asked the applicant’s name, and took him for questioning. He suffered beatings and physical harm during the questioning. The army accused him of being a Taliban supporter.
i.The army members were from other regions of Pakistan. They were not local militia or local troops, or otherwise know to the applicant or his family.
j.After the second arrest, the applicant fled Pakistan.
k.The applicant has been diagnosed with depression, anxiety, stress, and post traumatic stress disorder (PTSD). He is undergoing counselling, psychotherapy, cognitive behavioural therapy, and relaxation therapy. He has been prescribed medicine to manage insomnia.
Country Information
Department of Foreign Affairs and Trade Country Information Report
General situation
Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan. Terrorist attacks target civilians or security forces, vehicles, and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in KP (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.

While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. [3]
Pashtuns
[3] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Pakistan’, 25 January 2022, at [2.34]-[2.37].
DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the PTM or the ANP face specific, heightened risks, as do Shi’a Pashtuns.[4]
[4] DFAT at [3.18].
DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the Taliban. The risk may be higher for ANP leaders. ANP leaders may also be at risk of official harassment due to their association with the PTM protest movement.[5]
Other country information
[5] DFAT at [3.75].
The applicant’s prehearing submission states:
The latest [DFAT] Report on Pakistan was issued nearly three years ago in January 2022. Country information published since then demonstrates that the situation in Pakistan has dramatically worsened in several relevant ways.
The applicant refers to more recent country information, including the Center for Research and Security Studies (CRSS) Annual Security Report 2023 Pakistan 2023 which states:
In 2023, Pakistan witnessed 1533 violence-linked fatalities and 1462 injuries from as many as 789 incidents of terror attacks and counter-terror operations. This includes nearly 1000 fatalities among civilians and security forces personnel. The overall fatalities recorded this year - including those of outlaws - mark a record 6-year high, exceeding the 2018 level and highest since 2017. The year under review underlined a continued escalation of violence that had begun in 2021 - after six years of decline in violence-related fatalities - with upsurge recorded for the third consecutive year.[6]
[6] Center for Research and Security Studies (CRSS), ‘Annual Security Report 2023 Pakistan 2023’, 19 February 2024, at 4.
The Tribunal has also considered a paper published in July 2024 which states:
As part of its policy of creating “strategic depth” in Afghanistan, Pakistan spent decades nurturing the Afghan Taliban as a strategic asset—one that would secure its interests in Afghanistan. Hence, the Taliban’s resumption of power in Kabul in August 2021 was initially perceived as a victory for Pakistan. However, Islamabad’s support for the Taliban has backfired, as hostility between Afghanistan and Pakistan has significantly increased since the Taliban regained the reins of government. Since the re-emergence of the Islamic Emirate of Afghanistan, Pakistan’s terrorism problem has resurfaced, the Durand Line issue has once again become an obstacle, and violent clashes along the border have disturbed trade. Pakistan’s strategic asset has turned into a strategic predicament, bringing the two countries almost to the verge of war.[7]
[7] 'Pakistan and the Taliban: A Strategic Asset Turned Strategic Predicament', Abdul Rehman and Wang Mingjin, Asia Policy, 30 July 2024,
On 25 May 2024, the Office of the Commissioner General for Refugees and Stateless Persons (Belgium), reported that (footnotes omitted):
In 2022, the Pakistan Institute for Peace Studies (PIPS) observed a shift in the militant landscape and terrorist activities in Pakistan since the Taliban takeover in Kabul in August 2021, resulting in increasing numbers of attacks on Pakistan security personnel. According to PIPS, a majority of the ‘terrorist attacks’ in the province in 2022 targeted security/law enforcement agencies. Tribal elders and political leaders were the target of fifteen attacks, whilst seven attacks targeted civilians and six attacks were directed against health/polio workers and/or their security escorts. Despite the rising level of violence in Khyber Pakhtunkhwa, direct attacks against civilians declined in 2022, PIPS reported. Fearful of the public wrath that results from attacks against the civilian population, militants preferred to target security forces, pro-government tribal elders and political leaders. In August 2022, residents of Swat district protested against the return of TTP militants in the region. As a consequence, threats of violence and extortion demands surged in the region. In a September 2022 report, ICG observed that ever since its post-2021 resurgence, the TTP ‘has focused its attacks on security and law enforcement personnel in Khyber Pakhtunkhwa’.[8]
[8] Office of the Commission General for Refugees and Stateless Persons (Belgium), 'Pakistan Security Situation 2024', 25 May 2024, >
This same year the Pakistan Institute for Peace Studies (PIPS)[9] reported that the TTP and other Taliban allies were refraining from general sectarian attacks, but were targeting government, military, and security targets:
As in previous years, security and law enforcement personnel were the prime target of terrorist attacks in 2023. As many as 205 attacks in 2023, or about 67 percent of the total recorded attacks in the year, targeted personnel, vehicles, convoys, and posts or facilities of security and law enforcement agencies. Civilians were apparently hit in 19 attacks, while another 10 attacks targeted polio vaccination teams and their security escorts, mainly police. Meanwhile terrorists perpetrated nine attacks each against alleged spies/collaborators, and government officials/institutions/state symbols. Another nine attacks hit Sunni religious leaders and community, and five terrorist attacks targeted members of Shia community. Baloch insurgents also targeted non-Baloch workers and settlers in Balochistan in a total of five attacks.
[9] Muhammad Amir Rana; Safdar Sial, Hazrat Bilal & Osama Ahmed , Pakistan Institute for Peace Studies (PIPS), 'Pakistan’s Evolving Militant Landscape State Responses and Policy Options', 8 May 2024, >
The country information indicates that despite the military gaining control of Swat in 2009, and the resultant improvements in the overall security situation, the Taliban continued to launch attacks against military targets, anti-Taliban political activists, and those they consider support the Pakistan Army and government.
The applicant submits that:
The prevailing country information establishes that the risk in Swat is significant and rising. As noted above, terrorist incidents are indeed on the rise in Swat in recently months, with nine terrorism incidents occurring from June 2024 to date.
The Tribunal considers that the country information shows an ongoing cycle of violence and response in KP and Swat. While this lessened for a period, it has returned to high levels, and this indicates that the region remains volatile and subject to change without warning. The Tribunal has accepted the applicant’s claim to be a member of a family that has been identified and targeted by local Taliban. The Tribunal accepts the applicant’s claim that he was also threatened because of his work with NGO in his local area. The Tribunal takes account of the resurgence of the Taliban in Pakistan and its continuing attacks on government and civilian targets, particularly in KP.
The Tribunal finds that there is a small, but none the less real, chance that the applicant will be identified and harmed by the Taliban or its allies if he returns to Swat. The Tribunal finds that this harm includes the possibility of assassination, serious assault, kidnap, or similar outcomes that the Tribunal is satisfied comprise serious harm as contemplated by the Act. The Tribunal finds that this harm, if inflicted, will arise because of the applicant’s real or imputed political opinion as an opponent of the Taliban. The Tribunal finds that the overall security situation in Swat is particularly tenuous and is not satisfied that the Pakistani authorities will be able to provide effective protection to the applicant if he was to return to his home area.
The Tribunal has considered whether the applicant can relocate to another part of Pakistan where he will be able to avoid a real chance of serious harm. While the information cited above refers to levels of violence in Swat and the broader district of KP, the Tribunal has noted that Taliban and other extremist attacks have occurred throughout Pakistan. More recent 2024 reporting states that the number of ‘terrorist incidents’ reported in other provinces (Punjab, Sindh, Islamabad, Azad Kashmir and Gilgit-Baltistan) in 2023 is limited compared to the levels of violence witnessed in KP and Balochistan. Sources reported considerably lower numbers of security incidents in 2023 in the provinces of Sindh (115), Punjab (70), in the Federal Capital of Islamabad (12), in Azad Kashmir (4) and in Gilgit-Baltistan (3). In Sindh, a number of terrorist attacks were committed by Sindhi nationalist groups.[10] The PIPS report also indicates that the Taliban and its allies and affiliates continue to carry out attacks across Pakistan.[11]
[10] Office of the Commission General for Refugees and Stateless Persons (Belgium).
[11] PIPS, 8 May 2024.
However, the Tribunal must also consider the applicant’s adverse profile with the authorities. The applicant has not been involved with the Taliban (and indeed, has been a victim of it), but the information before the Tribunal is that the Pakistani authorities routinely suspect Pashtuns from KP as being Taliban supporters. DFAT also reports that across Pakistan, ethnic stereotyping and the association of Pashtuns with the Taliban has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking “the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA,[12] and to report any suspicious activity.” In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their identity cards when relocating which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as KP and Balochistan. DFAT assesses Pashtuns in conflict-affected areas such as KP and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason.
[12] The former Federally Administered Tribal Areas (FATA), now part of KP.
DFAT also reports that internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors and some groups, such as Pashtuns, occupy enclaves in these cities. DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country.
The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
The Tribunal accepts that if the applicant relocates out of KP he may be able to live in a Pashtun majority area, but the information above indicates that Pashtuns outside their home areas may still face official suspicion and discrimination. The applicant has already experienced arrest and mistreatment because of his ethnicity and imputed political profile in KP. The Tribunal has also considered whether he will remain a person of interest or suspicion to the authorities if he returns to other parts of Pakistan.
The Tribunal accepts that as well as being a Pashtun, the applicant has been a member of the PSF. The PSF describes itself as an independent student organisation set up to assist Pashtuns. It also states that many of its members move on to join the ANP.[13] This is consistent with the applicant’s evidence. The PSF and ANP are both Pashtun organisations and are considered lawful organisations in Pakistan, but the applicant has also referred to the PTM. This is an organisation that fights for the rights of Pashtuns. He has provided a copy of a Pakistani government document that shows the PTM was proscribed in October 2024. Media reporting states:
A notification issued by the federal government on Sunday said the PTM was “engaged in certain activities which are prejudicial to the peace and security of the country”.[14]
[13] ‘Pakistan bans prominent Pashtun rights group citing security concerns’, Al Jazeera, 7 October 2024, >
This follows a history of threats from the Pakistani government, abduction of PTM speakers, and repression of Pashtun rights activists. The Tribunal notes that the applicant is not a formal member of the PTM but has been involved in Pashtun rights activities with the PSF. He has continued to support Pashtun rights from Australia via online posts supporting the PSF and the PTM, although he concedes that he has now stopped doing so because of a fear that he may be targeted if he has to return. Nevertheless, the Tribunal accepts that the applicant has had involvement in Pashtun rights and that he is likely to continue doing so if he is returned to Pakistan. The Tribunal finds that this adds another layer to the applicant’s real or imputed political profile and increases the chance that he will face harm for that reason.
Having regard to everything discussed above, the Tribunal finds that there is a small but nonetheless real chance that the applicant will face discrimination, profiling, possible arrest, restrictions to his liberty, significant economic hardship, and other conduct that can be considered serious harm. This harm will be because of his ethnicity as a Pashtun, including from the suspicion that falls on Pashtuns outside their tribal areas, and his real or imputed political profile. The agency of harm will be the Pakistani state or authorities and as DFAT has noted, the chance of harm will exist in all parts of Pakistan.
Having regard to the applicant’s cumulative profile and personal circumstances, the Tribunal finds that the applicant has a well-founded fear of persecution should he return to Pakistan.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Date(s) of hearing:  24 October 2024
Representative:  Mr Luke Daniel Brennan
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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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