2007343 (Refugee)

2007343 (Refugee) [2023] AATA 4194 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Marion Le (MARN: 9256617)
CASE NUMBER: 2007343

COUNTRY OF REFERENCE: Pakistan
MEMBER:Ann Duffield
DATE:11 September 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 September 2023 at 1:38pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Pakistani Taliban – race – Pashtun – particular social group – voluntary work with NGOs – failed asylum seeker from the west – promoting women’s education and peace – fear of extortion – fear of killing – resurgence of the Taliban in the Swat Valley – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 April 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 citizen of Pakistan applied for the visa on 14 September 2018. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 9 August 2023 to give evidence and present arguments. 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.
CRITERIA FOR A 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 issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review. The Tribunal also has before it a copy of the department’s file and material referred to in the delegate’s decision.
The applicant is a citizen of Pakistan born in [specified year] ([age] years old). The department has not raised any issues in relation to the veracity of his identity or the country of his citizenship. There is no evidence before the tribunal to question those findings. The Tribunal has therefore made its assessment on the basis that Pakistan is the receiving country.
There is no evidence before the Tribunal that the applicant has the right of return and residence in a third country.
There was one issue raised by the department in relation to the applicant’s place of birth and residence. In his student visa application, he listed his place of residence as Islamabad. His passport also indicates that his residence was and birth as Islamabad. However, he has subsequently claimed that he was born in [Town 1], a sub-district of Kabal in the District of Swat. The delegate nevertheless did not find that his documentation was bogus and was satisfied that the applicant’s place of birth is [Town 1].
The applicant first arrived in Australia [in] May 2018 on a student visa when he was just [age] years old. He applied for the protection visa subject to this review on 14 September 2018. It was refused by the department on 16 April 2020. He lives with his [uncle] who has been in Australia since around 2008. He received protection along with his wife in around 2016.
Applicant’s mental health
The applicant has provided a copy of a report prepared by a psychologist at [Agency 1] in Canberra. The report was prepared for the applicant who had been referred to them for counselling by his GP in December 2018.
The applicant’s first available counselling session was in July 2019 and at the time of the report had attended 2 counselling sessions. The applicant has not provided any evidence that he has attended any further sessions and told the Tribunal he has not been treated for his mental health or medicated for his mental health issues in the intervening period.
In his interview with the psychologist the applicant names the centre in which he and his father were allegedly involved as the [Centre 1]. He claims to have re-opened the centre after he completed his studies in 2017. As many as 12 to 15 orphans and women would come and he taught them how to sew and taught them the Urdu language.
The applicant’s reported comments to the psychologist also stated that in April 2018 the centre was destroyed while he and his family were away at a wedding. It was at this time that the applicant and his family decided that he should leave the country, which he did with the help of an agent.
The report indicates that the applicant has significant symptoms of PTSD and depression that require treatment and trauma therapy. The report’s author states that the applicant’s symptoms are consistent with the effects of his past experience of torture and trauma.
Vulnerable persons guidelines
The Tribunal is mindful of and has given due regard to the reports and the opinions expressed by mental health professionals concerning the applicant’s mental health. The applicant has not indicated, and the report does not suggest that the applicant is unfit to participate in a hearing. The Tribunal also notes that the latest report is dated mid 2019.
The applicant’s legal representatives did not apply to adjourn the hearing nor was it submitted that the applicant was unable to follow and fully participate in the proceedings. She did however alert the Tribunal to the applicant’s mental health issues.
The Tribunal accepts that the applicant may have been confused about dates and times of events on occasion and the fact that he did appear somewhat disengaged from time to time. However, the Tribunal also notes that the applicant conducted himself calmly and with dignity throughout the proceedings. The applicant’s adviser told the Tribunal that it was the longest she had ever heard the applicant speak about the circumstances of his departure from Pakistan. She stated that he doesn’t even speak about these matters with his uncle.
During the hearing the Tribunal was attentive to whether the applicant was following and ably participating in the hearing. The Tribunal is satisfied the applicant followed the proceedings, fully participated in the hearing, and presented his evidence and submissions to the Tribunal both at the time and in post-hearing submissions.
The applicant’s protection claims
The applicant states, through his adviser, that his claims have been consistent across his application to the Department and his evidence to the Tribunal.
The applicant claims that he is a Pashtun and Sunni Muslim born and raised in the village of [Town 1] in the Swat District of Pakistan. His family have been actively involved in promoting education and peace. His grandfather and father have actively opposed the Taliban. He joined his family in helping with youth education and he volunteered with the [Agency 2]. He and his family have been threatened by the TTP (Taliban) because of their activities.
The applicant claimed his grandfather is a member of the local Jirga and that in 2009 he was threatened by the Taliban militants. He did not leave the area and has remained there to the present time. A friend of the family, [named], was killed by the Taliban and [number] of his sons received protection in Australia.
The applicant’s fathers centre was attacked by the TTP and ceased to operate in 2013 but it re-opened in 2017. It was attacked by the Taliban again in 2018. His involvement in the centre was as a driver between the village and the centre.
The applicant has family members still living in the Swat Valley and describes the presence of the Taliban as “everywhere. They know us and we know them”.
The applicant fears that he will be targeted if he returns to his home as it is known that he opposes the Taliban and that he and his family demonstrated this in the past by their active support for education of women and girls and his voluntary work with the [Agency 2].
The applicant claims that there has been resurgence of the TTP in the Swat valley in recent years and has provided a significant amount of country information, including articles and reports from a number of international agencies, including DFAT to support his claims.
The applicant claims to have seen many shocking things and has been severely traumatised, so he does not think about what happened and does not speak about it to anyone, not even his uncle who received refugee status in Australia some years ago and with whom he still lives. He cannot go anywhere else in Pakistan because it is not safe and he has no relatives or friends outside of the Swat Valley and without support he will not be able to live alone.
The applicant also states that as a returnee from overseas to his village after so long away (some five years) he will be a target of the TTP and others who would consider him a spy.
The applicant claims a well-founded fear of persecution on the basis of his imputed (and actual) political opinion and opposition to the TTP, the Afghan Taliban, extremist groups and individuals; his ethnicity as a Pashtun; and his membership of a particular social group, namely his family and a failed returning asylum seeker from the west who has been away for a long time.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal hearing
The Tribunal asked the applicant why he was fearful of returning to Pakistan. He said that the Taliban had given him a warning when he left Pakistan and they have become more powerful in the last few years. He says he won’t be safe, and they will kill him.
Asked why the Taliban would be interested in harming him he said that in 2013 his father and mother opened a centre which helped women and girls learn sewing skills as well as reading and writing. He said that the Taliban didn’t like it so in 2013 they attacked the centre and his father closed it. He didn’t report it to the army because they were corrupt and wouldn’t help them.
The applicant told the Tribunal that in 2017 he opened the centre again and mostly people from the village would come. He said that one day he and his family went to a wedding which was about three or four hours away. When they were gone a neighbour contacted them and told them that the centre had been destroyed. He said it was reported in the national news but he did not provide this evidence to the Tribunal and the Tribunal has not been able to locate any information about that alleged attack. (After the hearing, the applicant sent the Tribunal a clipping from a newspaper, along with a translation, referring to an attack on the centre in 2013 and naming the applicant as being in danger and having received threats. It appears the article was written [in] July 2018). He said after the attack he received a lot of phone calls from people telling him that they would kill him. Asked if that was the only reason the Taliban were interested in him, the applicant replied that it was the only reason.
The Tribunal put to the applicant that his mother, father and grandfather were still living in the village, and they were more involved in the centre and educating girls and women than he was. The Tribunal put to him that despite their involvement, they were all still unharmed by the Taliban, or indeed anyone else. He said that they had received threats.
The Tribunal pressed the applicant about the attack on the centre in 2017. Asked, for example, if he went back to the village after the wedding, he said that he went back for a short time. When pressed he said it was for a few hours and he left the village on the same day. He thought that this was around April 2017. He said he went to another village a few hours away and stayed with friends for a few days. He said that he changed places all the time until he left to come to Australia. He said that he didn’t go back to his village at all.
Throughout the hearing the applicant had to be asked for further details of his claims which, even when pressed, were not forthcoming. The Tribunal accepts that the reasons for the applicant’s reluctance or inability to provide details may be the result of his PTSD diagnosis in 2019 and has made allowances for that.
The Tribunal asked the applicant how and when he was able to obtain the documents necessary to apply for his student visa and how and when he was able to then apply for it. The applicant stated that his father made all the arrangements and all he had to do was go and give a fingerprint and have a medical check-up. He did not recall when this happened but noted that he had to go to Islamabad to get the medical examination. He told the Tribunal he thought he applied for his passport in November 2017 and the Tribunal notes that it was, indeed, issued at that time. Throughout this time the applicant told the Tribunal, on numerous occasions, that he was moving from place to place and had not returned to his village.
The applicant said that in order to get his visa he had to send his passport to the agent. Asked how he did this he said that his father told him to go to a shop and give it to the agent.
The applicant told the Tribunal that his father was sending him money and he was staying at hotels at various places. He says he had to keep moving otherwise the Taliban would find him. He had a phone and claimed that he continued to receive threats from the Taliban who said that they would kill him. The Tribunal suggested that he change his phone number and he said it wouldn’t matter because they would still be able to find him no matter where he was in Pakistan.
Again, the Tribunal put to him that his mother and father and grandfather had not been harmed by the Taliban despite their involvement with the centre and it found it difficult to accept that they would be interested in harming him. The applicant said that they had been threatened and had to leave the village from time to time.
The applicant told the Tribunal that his father made the arrangements for his documents to go to the agent when they were needed. They arranged collection points when they talked on the phone. He said that he collected his documents from the agent at the airport on the day he left. Asked what documents he was provided he said that he gave him the letter for the visa and his passport. Asked how his agent got his passport he said that he sent it to him. He claimed his father told him to take it to a mobile shop and leave it there and the agent would pick it up
The applicant’s account of his applications for his visa and passport was vague and unpersuasive.
The applicant told the Tribunal that the centre was opened in 2013 and was closed after a few months after it was attacked, He then said it remained closed until he reopened it in 2017. When pressed for more detail, he said he thought it was in February and it was attacked after a few months.
He said that going back will be hard for him as he could not live a life there. He said that Taliban was very active and a few days ago a suicide bomber killed some people there. He said he would not be able to live there safely.
The Tribunal reminded the applicant that he had also claimed to have worked for the [Agency 2a] and asked him to describe that work. He said that he provided medication and food and went there once or twice a week between 2017-2018. The Tribunal reminded him that he had just given evidence over two hours telling the Tribunal he had been “on the run” for the year from April 2017, when he claimed the centre was attacked, and when he left for Australia in May 2018. The applicant said that there was a [Agency 2a] in Karachi and he worked there sometimes.
The Tribunal put to the applicant that he had stated multiple times in his original claims, supported by a number of statements made by people from his village, that the centre was attacked on [a day in] April 2018 and that he fled to Australia shortly after that time. The Tribunal put to him that these two accounts were incompatible and asked which account was truthful; that he had been on the run for a year from April 2017 until May 2018, or that he remained in his village for that year until the centre was attacked for a second time. The applicant said that he had told the truth.
The Tribunal put to the applicant that only one of the accounts could be truthful as they were very different and accounted for a full year between April 2017 and May 2018. Asked why he had not been truthful to the Tribunal the applicant insisted that he was telling the truth.

Unfortunately, at this point the interpreter informed the Tribunal that she had to leave. The Tribunal conferred with the applicant and his adviser putting to them that they could adjourn, and it would schedule another hearing, or they could respond to the Tribunal’s concerns about the applicant’s claims in writing. The applicant informed the Tribunal through his adviser, in writing, that they would respond to the Tribunal’s concerns in writing and the Tribunal agreed to this request.
Post hearing submission
On 4 September 2023 the applicant received a number of documents from the applicant including the following:
a.A submission dated 28 August 2023
b.Translated copy of an article, dated July 2018, relating to the attack on the [Centre 1 variant] in 2013, naming the applicant and his family stating that they face severe consequences and danger
c.Medical records in relation to the applicant’s mother [medical conditions] between February and August 2023, January and June 2022, and some in 2020.
d.Copies of the biodata pages of the applicant’s mother and paternal grandparents
In the applicant’s submission to the Tribunal, he stated that he was genuinely confused about the Tribunal’s questioning in relation to the events of 2017 and 2018, in particular his statements that his father’s centre was burned down in 2017 and he spent a year moving from place to place before he departed for Australia in May 2018. Through his adviser he states that he suffers from PTSD and the events during those times were particularly triggering for him. He states that speaking about events of those periods triggers him and he tends to disassociate himself from those events. He states that once the year 2017 was mentioned he continued to answer questions around that year and became confused.
His mother is also very ill, and this makes him feel particularly vulnerable and confused. The Tribunal notes that his mother’s illness is unrelated to his claims but accepts that he will be negatively affected by this fact.
The Tribunal also accepts that the applicant may have been confused about dates and times of events on occasion and is mindful of his PTSD and the fact that he did appear somewhat disengaged from time to time. However, the Tribunal also notes that the applicant conducted himself calmly and with dignity throughout the proceedings. The applicant’s adviser told the Tribunal that it was the longest she had ever heard the applicant speak about the circumstances of his departure from Pakistan. She stated that he doesn’t even speak about these matters with his uncle.
The applicant, through his adviser indicated that the applicant would return to the Tribunal if requested and would bring his uncle. The Tribunal has considered whether a further hearing would assist and has formed the view that the applicant was given ample opportunity to provide evidence both at the hearing and in a post-hearing submission. The applicant did not request more time to provide a written submission. Given the applicant’s stated anxiety at a hearing, and the trigger he claims to experience at being asked about the events in question, seems to the Tribunal to have been a way in which he could have been more thoughtful and considered about these matters, in a supportive environment, and have as much time as he required to address the Tribunal’s stated concerns. On balance, the Tribunal did not consider a further hearing to be helpful for the applicant and one was not scheduled.
Country information
DFAT Country Information report Pakistan (25 January 2022)
2.34 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, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
2.35 Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks
The TTP
2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
2.40 TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have re-pledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.
Pashtuns
3.14 There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
3.16 Until 2018, those living in the FATA were governed under separate, extra-constitutional arrangements, which denied them some fundamental rights (see Political System). Residents of Khyber Pakhtunkhwa, including the former FATA, now have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats under the Khyber Pakhtunkhwa Alternate Dispute Resolution Act (2020) (see Judiciary). In 2017 civilians living in the FATA were injured and lost access to land due to landmines left over from security operations.
3.17 Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan.
3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns
The current conflict in the Swat Valley
The applicant, through his adviser, has provided a number of recent news articles setting out the instability in the Swat Valley at the present time. These include an article by the Associated Press dated 31 July 2023 in relation to the funerals for victims of a suicide bombing that targeted a political rally for a pro-Taliban Cleric; an article from the Jamestown Foundation dated 9 February 2023 in relation to the re-emergence of the TTP in the Swat Valley; an article published through France 24 dated 11 January 2023 about the TTP’s reign of terror in the Swat Valley.
According to a summary of recent events within the Swat district prepared by the Department of Home Affairs in May 2023, several reports demonstrate that the TTP had returned to Swat District following the June 2022 withdrawal of Pakistan army detachments; with reports the TTP was in control of mountainous parts of Matta tehsil where they were extorting businessmen, and that there had been a clash between TTP and police in Matta, and that 4 security personnel (police and possibly also army) including the Matta deputy superintendent of police (DSP) had been taken hostage (but released soon after). There were also reports of widespread fears among locals, and estimates of there being or 200-250,2 or even 400-5003 militants back in Swat. The Pakistan military said the situation was grossly exaggerated, and that a small number of armed men on a few mountain tops between Swat and Dir had been observed, located far away from the population. In September 2022 there was a further alleged instance of TTP abduction for ransom in Matta. On 13 September 2022 an IED attack in Kabul Tehsil targeted and killed a peace committee member and his police escort (ultimately resulting in some 8 deaths with others wounded), and the TTP claimed responsibility; also on 13 September: 7 persons (reported variously as farmers and/or telecommunications workers) were abducted in the Chaparral area with the TTP demanding a ransom and issuing a warning these persons had helped the government. On 8 October 2022 two persons were killed and four others injured in a clash near Mingora, with police CTD stating the deceased were informers for the militants, and killed in an encounter with the security forces, while locals disputed this and said it was a clash over monetary issues. Pakistan focus groups 26 June 2023 Swat District Security.pdf (sharepoint.com)
Further incidents were also reported throughout 2022 and into 2023.
a.On 10 October 2022 it was reported that the son of a peace committee member was killed in Waliabad, and on the same day it was reported that an attack in Charbagh on a school bus had killed the driver and two students. In both instances the attackers were unidentified, and there was no claim of TTP responsibility.
b.During the above period there were reports that local residents were demanding action from the government, and public protests were also staged in this regard beginning in August 2022 and with the largest of these being reported on 11 October 2022 following the school bus incident. It has been reported that after the initial protests, three army divisions came to Swat between September 18 and 22, and were stationed in the hilly areas of Matta, but that there was no tangible operation against the militants. But police did subsequently announce a number of operations against the TTP, and that several TTP had been killed and others arrested, and that the situation was now under control.
c.In November 2022 it was reported that the TTP were threatening a provincial lawmaker (apparently a member of KPK’s Provincial Assembly who asked to remain anonymous) in Swat into paying sums totalling Rs1.2 million rupees; and who estimated 80 to 95 percent of well-off residents in surrounding districts are now victims of blackmailing, and that fellow legislators have been targeted for refusing to pay out
d.During 2023 there continued to appear occasional articles reporting a resurgence of the TTP in Swat, and expressing concern about this, and making broad reference to acts of extortion and attack by the TTP, but without providing details of any recent specific TTP perpetrated incidents in Swat in 2023.
e.An April 2023 blast at a CTD station was initially suspected to be a TTP attack, but subsequently proved to have been an accident while the motivations remain unclear for an April 2023 shooting by a police officer guarding a Catholic school for girls. Again, the TTP has not claimed responsibility for either incident.
f.In May 2023 a police operation in Manglawar resulted in the arrest of two TTP operatives, and on 5 June 2023 police announced the group had been active in Charbagh and Manglaore areas, and had been infiltrating into Swat and extorting money from MPAs (Members of the Provincial Assembly), and police would address shortcomings in preventing such infiltration.
g.On 8 June 2023 two police constables and a bank’s security guard were killed by unidentified gunmen in the Sabzi Mandi area in Mingora. The TTP claimed responsibility for this attack. Pakistan focus groups 26 June 2023 Swat District Security.pdf (sharepoint.com)
According to a report published through ANI, Taliban has successfully returned to Khyber Pakhtunkhwa's Swat Valley. The TTP since October 2022 has been openly challenging the federal government by attacking high-security sites and law-enforcement agencies. Police stations across the nation have been “blown up like dominoes, one after another”. Taliban has successfully returned to Khyber Pakhtunkhwa's Swat Valley: Report (aninews.in) 8 May 2023
Treatment of returnees [DFAT Country Information report Pakistan (25 January 2022)]
5.28 Returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistani law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally.
5.29 People suspected of or charged with criminal offences in Pakistan are likely to face questioning on return, irrespective of whether they departed legally or not. DFAT understands that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people are usually released within a few days after being bailed out by their families or having paid a fine, although the law provides for prison sentences. Those wanted for a crime in Pakistan or who have committed a serious offence abroad may be arrested and held on remand or required to report regularly to police.
5.30 Returnees are responsible for arranging their own onward transportation from their point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the IOM and/or domestic NGOs. Returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration tend to face a higher risk of financial hardship and familial shame. A small percentage of returnees do not reintegrate and go abroad again to seek asylum.
5.31 DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad
Findings and Reasons
The issues in this review are whether there is a real chance that, if the applicant returns to Pakistan, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Imputed or actual political opinion and membership of a particular family group (his family)
The Tribunal accepts that the applicant is a Pashtun from the village of [Town 1] in the Swat district of Khyber Pakhtunkhwa (KP) province, is of the Sunni Muslim faith and that, apart from the time they spent as evacuees in [a named town], he and his family lived in Swat through the period when the Taliban controlled Swat until they were defeated in the Army operation in mid-2009. The Tribunal accepts the evidence that the applicant assisted as a driver at his father’s centre which was involved in the education of women and girls which his father established in around 2013. The Tribunal accepts that the centre was closed in 2013. The Tribunal is less persuaded that the applicant reopened the centre in 2017 (or 2018) and that it was again attacked and finally had to close in 2018, however has extended the applicant the benefit of the doubt.
The applicant claims that he will be harmed by the TTP if he returns because of his involvement in the running of the [Centre 1], along with his father, providing educational services to women and girls. He will be considered as being against them. However, the applicant’s account of his involvement in the centre was vague and generalised. He did not claim to have any official role in running the centre or take a high profile position in promoting it, for example. He did some driving and deliveries between the village and the centre. He did not say how often he was involved in this activity.

The applicant told the Tribunal on several occasions that the centre was destroyed in around April 2017. He went on to describe his life on the run for the following year. He stated that he had not returned to the village since the destruction of the centre, except for a few hours to collect some belongings. He described going from hotel to hotel to evade the Taliban who he claimed continued to contact him on his phone and threaten him. He told the Tribunal on several occasions that his father sent him money so he could pay for his accommodation and food. He said that he worked sometimes at the Karachi office of the [Agency 2a]. He said that during this time his father organised for his visa, and he had to travel from Karachi (where he was in hiding) to Islamabad to get his medical check done. He confirmed with the Tribunal several times that he was on the run for a year from April 2017 when the centre was destroyed, and May 2018 when he departed for Australia. He did not return to his village at all in that time.
When the Tribunal reminded him that he had stated in his application, and that his friends in their statements claimed that the centre was destroyed in April 2018, just one month before he departed for Australia the applicant told the Tribunal that both that claim, and his claim of being on the run for a year were true. The applicant, through his adviser after the hearing submit that as soon as the year 2017 was mentioned, the applicant was triggered and conflated events. The Tribunal notes that it did not mention the year but asked the applicant when the centre was destroyed, and he said it was in around April 2017. Be that as it may, the Tribunal does not accept that explanation for the following reasons.
The Tribunal accepts that dates can become confused and if the applicant then went on to say that he left Pakistan a month later in May 2017, the Tribunal would not be concerned about that error. However, the applicant went on to describe his activities for an entire year, on the run, including his father sending him money for accommodation moving from place to place, his work at the [Agency 2a] in Karachi and other activities, including his visit to Islamabad from Karachi to attend a medical examination and, much more importantly, his statement that he did not return to his village from the time he left it in April 2017 until he departed Pakistan in May 2018.
Even if the Tribunal accepts that the applicant was describing the events of 2017-2018 as they occurred (notwithstanding his misremembering that the centre was not destroyed until 2018), it does not explain the fact that he was very clear about being on the run and not returning to his village prior to his departure for Australia. The Tribunal does not know what to make of this outside of speculation except to say that the applicant has clearly fabricated one version of events; the Tribunal is nevertheless minded to accept that the events of that year 2017-2018 occurred whilst he remained in the village and that the alleged attack on the centre occurred in April 2018. He was never on the run or moving around avoiding the Taliban. He was at home, in his village, where the Taliban could attack him or harm him at any time they chose, but they didn’t.
The Tribunal is not satisfied that the applicant, or his family, have been threatened with serious harm by the Taliban and even if they had a centre which was subsequently destroyed, it was not an attack by the Taliban. None of the alleged witness statements made by friends, neighbours and family can identify the attackers. They have stated that it was the Taliban but there is no evidence, aside from assertions, that that was the case.
The Tribunal has taken into consideration the statements provided by neighbours, friends and family in his village and in Swat dated between around June and August 2018 and prepared for the purposes of his protection visa application and referred to in the Delegate’s decision. The Tribunal has not received any updated statements from friends or family about these matters.
a.Mr [Mr A] states that the applicant and his family are known to him since childhood. He states that in April 2018 the [Centre 1] was attacked by unknown persons when the family were not home. [Mr A] states that this was not the first time it was attacked. [Mr A] declares that he was a witness to the attack and claims it was the Taliban. He also states that the family have received threats for running the centre and for its affiliation with the [Agency 2].
b.[Mr B] is a member of the elected [named] Union Council from 2015. He states that the applicant’s family is notable and respectable. He states that the family provided education to the orphan girls and women in the area and that the applicant stood against the Taliban. [Mr B] states the applicant’s family is an active member of the surveillance committee whose main function is to keep a close eye on the Taliban. [Mr B] states that on [a day in] May 2018 the [Centre 1] was attacked by unknown persons. He states that the applicant and his family have imminent and serious threats against them. He states that the applicant’s members of the [Agency 2] and [Agency 2a] has had a negative impact on his life.
c.Mr [Mr C], a neighbour of the applicant, states that the applicant and his family have been known to him for many years. He states that in 2012 the [Centre 1] was attacked and attacked again on [the day in] May 2018. He states that at midnight on [a day in] April 2018 unknown people attacked the centre while the family were away. He witnessed the attack and the incident was reported in the local newspaper. He states that the applicant was an active member of the [Agency 2] and the [Agency 2a]. [Mr C] states that the region is very unstable with bombings and attacks by the Taliban.
d.[Aunt A], the applicant’s aunt, states that the applicant and his father always stood against the ideology of the Islamic Extremists and opened a vocational centre for women and girls. She states that no one can resist the Taliban and that the applicant would be in imminent danger if he returned.
e.A joint statement by five individuals who state they know the applicant and his family and that they ran the [Centre 1]. They state that they were students of the centre and were taught sewing and their skills. They were witnesses to the partial destruction of the centre.
The Tribunal gives these statements little weight in terms of corroborating the applicant’s claims. They are from friends and neighbours and were sought specifically by the applicant to support his claims for protection. They all contain slight variations of the same information as if they had been directed what to say. Several mention that the incident was reported in the newspapers, however no contemporaneous evidence has been provided to support that claim (except a newspaper article dated July 2020). Even if the Tribunal accepts that these individuals are whom they claim to be and witnessed the event, there is insufficient information or detail in those statements to lend weight to the applicant’s claim or to corroborate them in a way that satisfies the Tribunal
The applicant told the Tribunal his involvement with the [Agency 2] and [Agency 2a] was voluntary and sporadic. He did not provide details of what he did but he did not claim that he was in a high profile or management role. He also chose to embellish his involvement by stating that he worked for the [Agency 2a] whilst he was in hiding in Karachi.
On the basis of the information before it, the Tribunal is not satisfied that the applicant’s involvement in these organisations would bring him to the negative attention of the Taliban, or anyone else, such that they would want to seek him out to cause him significant harm, or to have an adverse interest in him for any reason at all.
The Tribunal has also considered the newspaper clipping which is from a newspaper dated July 2020. The date does not appear on the page that the snippet appears but on a separate copy of the paper. Its unclear why such a snippet was published in this newspaper at this time, rather than as a contemporaneous report in April 2018, or the source of the information. The snippet indicates that the centre was destroyed by unidentified persons who have been threatened. The Tribunal does not give this any weight as corroborative evidence of the applicant’s claims.
The Tribunal does not therefore accept, on the basis of the information and evidence before it, that the applicant has been specifically targeted or harmed by the Taliban or other extremists in the past, nor have any of his family members despite his parents and grandparents remaining in the area, or that he will be so targeted for significant harm in the future by the Taliban, or anyone else, by reason of his actual or imputed political opinion as being anti-Taliban or his membership of a particular social group, being his family. As his parents appear to have been the main providers of the education services to women and girls, it would seem to the Tribunal that they would have been targeted, if not killed by the TTP already. Equally, he remained living at his home until his departure in May 2018. Furthermore, he claims his father is a member of a Peace Committee whom DFAT has indicated remain targeted for violence. Yet the applicant’s father, and other members of his family, including some siblings and his grandfather, remain unharmed and unmolested.
Ethnicity - Pashtun
The applicant, through his adviser, submits that the applicant will not be able to live anywhere else in Pakistan because of his Pashtun ethnicity. However, the applicant is a Pashtun in a Pashtun dominated region. He may face discrimination if he moved out of the area but there is no reason, on the basis of the findings above, that he would need to or want to move away from his family and his home.
According to country information cited above, Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
The applicant claims that the Taliban would see him, a Pashtun who does not obey or submit to them, as an apostate who must be killed. As the Tribunal has found that the applicant is of no adverse interest to the Taliban, it follows that he will not be considered a disobedient Pashtun who must be killed.
The Tribunal is not satisfied the that the applicant will or has suffered significant harm in Pakistan by reason of his Pashtun ethnicity. The Tribunal is not satisfied that he will suffer significant harm should he be returned there either now or in the reasonably foreseeable future, for that reason.
Failed returning asylum seeker from the west who has been gone a long time
The applicant claims that he has been away from Pakistan since May 2018 and the local people may suspect him of being a spy and the Taliban will be suspicious. He states that he will have no way of proving that he is not a spy and he will be targeted for his association with a west country. Through his adviser he states that on his way home there is a very real likelihood that he will be waylaid on the roads as he returns to his village and interrogated by the TTP or other extremists. He states that his family is known by the TTP and that there is a real risk he could be subjected to extortion, abduction or murder.
The Tribunal has already found that neither the applicant nor his family, despite their alleged involvement in the education of women and girls for the past ten years or so, have been harmed by the Taliban nor do they appear to be of any interest to them such that they would be targeted for serious harm now or in the future. The Tribunal has also found that there is not a real chance that the applicant living in the Swat valley would be killed or injured in general terrorist attacks that may occur in the future.
The Tribunal therefore does not accept that there is a real chance that the applicant will be targeted by the Taliban on his way home to the village and killed or abducted or extorted. The Tribunal is not satisfied that he would be considered a spy for the same reasons. Nor is there any evidence before the Tribunal that he would be viewed with such negativity as a failed returning asylum seeker who has lived in the West such that anyone would want to cause him significant harm for that reason.
Fear of significant harm by reason of a resurgent Taliban
The Tribunal accepts that the security situation in the Swat Valley is complex and volatile with outbreaks of mass attacks and several suicide bombings as well as attacks against individuals perpetrated by all extremist groups in the region, in particular the TTP. The Tribunal has noted the more recent reports about a resurgent Taliban in the Swat Valley.
The Tribunal has had regard to the applicant’s concerns about the ongoing conflicts as well as the representative’s submissions relevant to this issue. The Tribunal acknowledges these concerns, and that the situation can change and fluctuate, and that there is an element of vulnerability in the government security measures, as noted in the ANI report published in May 2023.

100. However, the applicant is at no greater risk of harm in the Swat Valley than other residents, and indeed may be at less risk because he has no profile as an activist, leader, member of the military or the government, nor has he publicly expressed or participated in any political or other protests or rallies or published comments that are anti-Taliban or participated or done anything that would bring him to their adverse attention such that they would want to cause him significant harm. The country information indicates that the TPP and others are more inclined to target people of a higher profile or officials. Also, his parents, siblings and grandfather continue to reside in their family home as they have done for many years without harm coming to them. If they are of such adverse interest to the Taliban, it would follow that they would have been targeted before now. However, as the Tribunal has found that neither the applicant nor his family, have been the subject of harassment, targeted attacks or significant harm in the past for the reason claimed, or for any other reason, the Tribunal does not consider that the applicant, faces a real chance of suffering significant harm in terrorist attacks should he return to Swat either now or in the reasonably foreseeable future.
101. Taken together, and considering all the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed by the Taliban, other extremist groups, or anyone else for reasons of his imputed or actual political opinion of opposition to the TTP and/or other extremist groups, or for any other reason, should he return to Pakistan either now or in the reasonably foreseeable future.
CONCLUSION
102. Considering the applicant’s claims both individually and cumulatively, as a returning failed asylum seeker from the west, an ethnic Pashtun, his membership of a particular social group (his family), and his actual or imputed political opinion as someone opposed to the TTP and other extremist groups, the Tribunal is not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).
Complementary protection
103. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
104. The applicant’s representative has submitted that should the applicant be removed to Pakistan, there is a real risk that be killed.
105. For the reasons set out above, the Tribunal has not accepted that, on the evidence before it, there is a real chance that the applicant will face serious harm from the Taliban or anyone else by reason of his actual or imputed political opinion of opposition to the TTP and/or other extremist groups; his membership of a particular social group being his family, his ethnicity as a Pashtun or his profile as a returnee from the West. Having regard to those findings, the Tribunal has also found that the risk of the harm to the applicant in the context of generalised violence in the Swat Valley is remote and speculative. It follows that the Tribunal does not accept there is a real risk that the applicant will suffer significant harm from the Taliban or anyone else as part of the generalised or sectarian violence or for any other reason as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan for these reasons.

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

107. The Tribunal affirms the decision not to grant the applicant a protection visa.
Ann Duffield
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4194

11 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice